Commitment Agreement - Nephros Inc. and Ronald Perelman
COMMITMENT AGREEMENT
COMMITMENT AGREEMENT (this "Commitment Agreement"), dated as of May 30,
2003, by and between Ronald Perelman (the "Committed Investor") and Nephros,
Inc., a Delaware corporation (the Company").
W I T N E S S E T H:
WHEREAS, the parties desire that the Company sell an aggregate of
$1,000,000 principal amount of its Senior Convertible Bridge Notes due January
26, 2004 ("Bridge Notes"), (in substantially the form attached hereto as Exhibit
A), which are convertible, under certain circumstances, in whole but not in
part, into shares of Series D Convertible Preferred Stock (the "New Preferred")
of the Company having designations and preferences as set forth therefor in the
form of Amended and Restated Certificate of Incorporation of the Company
attached hereto as Exhibit B (the "Revised Charter") at a price per share equal
to the liquidation preference per share of such New Preferred (the "Equity
Price"), provided that the holder also exercises the right (such right to
convert and exercise, collectively, the "New Preferred Acquisition Option") to
purchase, when and as provided in the Bridge Notes, at the Equity Price per
share, a number of shares of New Preferred equal to the quotient of (i) the
product of the aggregate principal amount of Bridge Notes held by such person
times any amount, at such holder's option, between 9 and 11, divided by (ii) the
Equity Price; and
WHEREAS, the parties contemplate that, subject to certain conditions,
each of the holders (the "Stockholders") of the Company's common stock,
convertible preferred stock and/or convertible promissory notes will be given
the opportunity to purchase its pro-rata share of the Bridge Notes, based on the
number of shares of common stock outstanding, or issuable, directly or
indirectly, upon conversion of convertible preferred stock and/or convertible
promissory notes, held by such Stockholders (including conversion of dividends
accrued through May 31, 2003 on shares of convertible preferred stock) (the
"Offering"); and
WHEREAS, the Committed Investor has agreed to purchase (and the Company
has agreed to sell) any Bridge Notes that the Stockholders do not purchase
pursuant to the Offering, so that the aggregate principal amount of Bridge Notes
issued will be $1,000,000, regardless of how many Stockholders elect to purchase
Bridge Notes pursuant to the Offering; and
WHEREAS, the parties desire to enter into this Commitment Agreement in
order to evidence their respective commitments and obligations;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the meanings set forth in
this Article I.
"Closing" shall mean the closing of the transactions contemplated by
this Commitment Agreement, to occur promptly following the Subscription
Deadline.
"Material Adverse Effect" shall mean any change or effect that is
materially adverse to the business, operations, properties (including intangible
properties), condition (financial or otherwise) or prospects of the Company.
"Subscription Deadline" shall mean June 11, 2003, which is the date by
which the Stockholders must make their irrevocable elections whether to purchase
Bridge Notes in the Offering.
The use in this Agreement of a masculine pronoun in reference to a party
hereto shall be deemed to include the feminine or neuter, and vice versa, as the
context may require.
ARTICLE II
THE CLOSING
Section 2.01. Closing. Upon the terms and subject to the conditions of
this Commitment Agreement:
(a) The Committed Investor shall purchase, at the Closing, (i) the
maximum amount of Bridge Notes allocated to it pursuant to the Offering on
account of its status as a Stockholder and (ii) the amount, if any, of the
$1,000,000 principal amount of Bridge Notes offered in the Offering but not
purchased by Stockholders pursuant to the Offering.
(b) The Committed Investor shall, at or prior to the Closing, in
connection with its purchase of Bridge Notes, execute and deliver a Subscription
Agreement (in substantially the form attached hereto as Exhibit C) and make
payment to the Company by wire transfer of immediately available funds in an
amount equal to the aggregate principal amount of Bridge Notes being purchased
by the Committed Investor.
(c) At the Closing, the Company shall deliver to the Committed Investor
the Bridge Notes purchased by the Committed Investor pursuant hereto.
(d) The Closing shall take place at the offices of Kramer Levin Naftalis
& Frankel LLP, 919 Third Avenue, New York, New York, or at such other location
as the parties may agree, promptly following the Subscription Deadline.
(e) At the Closing, each party to this Commitment Agreement shall
deliver to the other hereto parties such other documents, instruments and
writings as may be required to be
2
<PAGE>
delivered in accordance with this Commitment Agreement or as may be reasonably
requested by such other party.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Committed Investor as
follows:
Section 3.01. Organization and Corporate Power. 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 its properties, to carry on its business as presently
conducted, to enter into and perform this Commitment Agreement and any other
agreements, executed and delivered by the parties at or prior to the Closing
(together, the "Transaction Documents") to which it is a party and to carry out
the transactions contemplated hereby and thereby. The Company is duly licensed
or qualified to do business as a foreign corporation in each jurisdiction
wherein the character of its property, or the nature of the activities presently
conducted by it, makes such qualification necessary, except where the failure to
be so licensed or qualified would not have, or be reasonably likely to have, a
Material Adverse Effect.
Section 3.02. Authorization and Non-Contravention. The Transaction
Documents to which the Company is party are valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity). The execution, delivery and
performance of the Transaction Documents, the sale and delivery of the Bridge
Notes in accordance with this Commitment Agreement and, if the New Preferred
Acquisition Option is exercised, the issuance of the New Preferred thereupon,
has been duly authorized by all necessary corporate action of the Company and
its stockholders, other than such consents, approvals and/or waivers as are
conditions to the Closing (the "Disclosed Requirements"). Assuming the Disclosed
Requirements are satisfied, the execution, delivery and performance of the
Transaction Documents will not: (i) violate, conflict with or result in a
default under any contract or obligation to which the Company is a party or by
which it or its assets are bound, or any provision of the Revised Charter or
by-laws of the Company, or cause the creation of any lien or encumbrance upon
any of the assets of the Company, except for those which do not, or are not
reasonably likely to, result in a Material Adverse Effect; (ii) violate or
result in a violation of, or constitute a default (whether after the giving of
notice, lapse of time or both) under, any provision of any law, regulation or
rule, or any order of, or any restriction imposed by any court or other
governmental agency applicable to the Company, except for those which do not, or
are not reasonably likely to, result in a Material Adverse Effect; (iii) require
from the Company any notice to, declaration or filing with, or consent or
approval of any governmental authority or other third party other than pursuant
to federal or state securities or blue sky laws or where the failure to do so is
not reasonably likely to result in a Material Adverse Effect; or (iv) accelerate
any obligation under, or give rise to a right
3
<PAGE>
of termination of, any agreement, permit, license or authorization to which the
Company is a party or by which it is bound.
Section 3.03. Authorized and Outstanding Stock. Immediately prior to the
consummation of the transactions to be effected at the Closing, the authorized
capital stock of the Company will consist of (i) 30,000,000 shares of common
stock, par value $.001 per share, of which 5,609,500 shares are issued and
outstanding, and (ii) 10,000,000 shares of preferred stock, par value $.001 per
share, of which (w) 4,500,000 shares have been designated as Series A
Convertible Preferred Stock (the "Series A Preferred Stock"), 4,000,000 of which
are issued and outstanding, (x) 2,333,333 shares have been designated as Series
B Convertible Preferred Stock (the "Series B Preferred Stock"), all of which are
issued and outstanding and (y) 3,140,000 shares have been designated as Series C
Convertible Preferred Stock (the "Series C Preferred Stock"), and the Company
has committed to issue 3,387,550 shares of Series C Preferred Stock. Except as
disclosed in Schedule 3.03, there are no outstanding subscriptions, options,
warrants, commitments, agreements, arrangements or commitments of any kind for
or relating to the issuance, or sale of, or outstanding securities convertible
into or exchangeable for, any shares of capital stock of any class or other
equity interests of the Company. Except as set forth in the Revised Charter or
in Schedule 3.03, the Company has no obligation to purchase, redeem, or
otherwise acquire any of its capital stock or other equity interests in the
Company. After giving effect to the transactions contemplated hereby, all of the
outstanding shares of capital stock of the Company will have been duly and
validly authorized and issued and will be fully paid and non-assessable. The
relative rights, preferences and other terms relating to the New Preferred, upon
filing of the Revised Charter, will be substantially as set forth in the form of
Revised Charter attached hereto as Exhibit B, and such rights and preferences
would be valid and enforceable under Delaware law. Except as pursuant to the
Stockholders' Agreement, dated as of May 17, 2000, by and among the Company and
the stockholders of the Company identified on Annex I thereto, the Company has
not granted any preemptive rights with respect to the issuance or sale of the
Company's capital stock.
Section 3.04. Subsidiaries. The Company does not own or control,
directly or indirectly, any interest in any other corporation, partnership,
limited liability company, association or other business entity.
Section 3.05. No Litigation. There is no action, suit, investigation or
proceeding pending against, or to its knowledge, threatened against or
affecting, the Company before any court or arbitrator or any governmental body,
agency or official which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated by this Commitment
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COMMITTED INVESTOR
The Committed Investor hereby represents and warrants to the Company as
follows:
4
<PAGE>
Section 4.01. Authority. If a natural person, such Committed Investor is
21 years of age or over; if a corporation, trust, limited liability company,
partnership, unincorporated association or other entity, such Committed Investor
is authorized, empowered and qualified to execute and deliver this Commitment
Agreement and the other Transaction Documents to which such Committed Investor
is a party and to purchase and hold the Bridge Notes to be purchased pursuant
hereto, the New Preferred issuable upon exercise of the New Preferred
Acquisition Option and the Common Stock issuable upon conversion of any such New
Preferred (collectively, the "Subject Securities").
Section 4.02. Binding; Non-Contravention. The Transaction Documents to
which such Committed Investor is party are valid and binding obligations of such
Committed Investor, enforceable against such Committed Investor in accordance
with their terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity). The
execution, delivery and performance of the Transaction Documents will not: (i)
violate, conflict with or result in a default under any provision of the
certificate of incorporation or by-laws (or analogous organizational documents),
if any, of such Committed Investor; or (ii) violate or result in a violation of,
or constitute a default (whether after the giving of notice, lapse of time or
both) under, any provision of any law, regulation or rule, or any order of, or
any restriction imposed by any court or other governmental agency applicable to
such Committed Investor, except for those which do not, or are not reasonably
likely to, adversely affect such Committed Investor's ability to perform its
obligations under this Commitment Agreement and the other Transaction Documents
and to consummate the transactions contemplated hereby and thereby.
Section 4.03. Accredited Investor. Such Committed Investor is an
"accredited investor," as that term is defined under Rule 501 of Regulation D
under the Securities Act of 1933, as amended (the "Act").
Section 4.04. Adequate Information. Such Committed Investor has received
and carefully reviewed this Commitment Agreement (together with all Schedules
and Exhibits hereto), the Confidential Information Memorandum prepared by the
Company and each other Transaction Document (collectively, the "Offering
Documents"). Such Committed Investor has consulted its own financial, legal and
tax advisors with respect to the economic, legal and tax consequences of the
purchase of the Bridge Notes pursuant hereto and acquiring, holding, and
disposing of the Subject Securities and has not relied on the Offering
Documents, the Company or any of the Company's officers, directors, affiliates
or professional advisors for advice as to such consequences.
Section 4.05. Sophistication. Such Committed Investor acknowledges that
it has sufficient knowledge and experience in financial and business matters to
be capable of evaluating the merits and risks of the prospective investment in
the Bridge Notes and of making an informed investment decision with respect
thereto. Such Committed Investor acknowledges that the Offering Documents may
not contain all information that is necessary to make an investment decision
with respect to the Company and the Bridge Notes and that it must rely on its
own examination of the Company and the terms and conditions of the Offering
prior to
5
<PAGE>
making any investment decision with respect to the Bridge Notes. Such Committed
Investor further acknowledges that it has been afforded full opportunity to ask
questions and obtain copies of all relevant documents concerning the Company and
the Subject Securities, and all of its questions and requests for documents and
information have been answered to its complete satisfaction.
Section 4.06. Adequate Means. Such Committed Investor acknowledges that
it has adequate means for providing for its own needs and personal contingencies
and has no need for liquidity in its investment in the Bridge Notes, and is able
to hold the Bridge Notes for an indefinite period of time and to withstand a
complete loss of such investment.
Section 4.07. No Oral Representations. Such Committed Investor
represents that, in entering into this Commitment Agreement, it is relying
solely on the express representations and warranties of the Company contained in
this Commitment Agreement and that no oral representations or warranties have
been made to it. Such Committed Investor acknowledges that it has been advised
that no person is authorized to give any information, or to make any statement
regarding the Company or the Offering, and that any such information or
statement must not be relied upon as having been authorized by the Company, its
officers, directors, affiliates or professional advisors.
Section 4.08. Unregistered Securities; No Public Market. Such Committed
Investor understands that none of the Subject Securities have been registered
under the Act by reason of a claimed exemption under the provisions of the Act
which depends, in part, upon such Committed Investor's investment intention.
Such Committed Investor understands and hereby acknowledges that the Company is
under no obligation to register any of the Subject Securities under the Act or
any state securities or "blue sky" laws, although certain investors may have
contractual registration rights. Such Committed Investor acknowledges and agrees
that none of the Subject Securities may be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under the Act
and in compliance with applicable securities laws of any state or other
jurisdiction, or pursuant to an opinion of counsel satisfactory to the Company
that such registration is not required. The Company may affix an appropriate
legend to any certificate(s) representing Subject Securities to reflect the
foregoing. In this connection, such Committed Investor hereby represents that it
is acquiring the Bridge Notes for its own account for investment and not with a
view toward the resale or distribution of such Bridge Notes or any other Subject
Securities to others. Such Committed Investor is not acquiring any portion of
the Subject Securities, or any interest therein, on behalf of another person. No
person other than such Committed Investor has any direct or indirect beneficial
interest in the Subject Securities such Committed Investor has agreed to
purchase hereunder. Such Committed Investor, if an entity, was not formed for
the purpose of purchasing the Bridge Notes. Such Committed Investor understands
that there is no public market for any of the Subject Securities and that no
such market may develop. Such Committed Investor understands that even if a
public market develops for any such Subject Securities, Rule 144 under the Act
requires, among other conditions, a one-year holding period prior to the resale
(in limited amounts) of securities acquired in a non-public offering without
having to satisfy the registration requirements under the Act.
6
<PAGE>
Section 4.09. Litigation. There is no action, suit, investigation or
proceeding pending against, or to its knowledge, threatened against or
affecting, such Committed Investor before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Commitment Agreement.
ARTICLE V
EQUITY FINANCING
Section 5.01. Equity Financing Option. The Committed Investor shall have
the right (the "Equity Financing Option"), exercisable at any time prior to the
earlier of (i) 10 days after the Company gives the Committed Investor notice
that it has obtained a CE mark in Europe on its initial product and (ii) January
15, 2004 (such earlier date, the "Expiration Date"), to elect to cause the
Company to issue $10,000,000 to $12,000,000 in aggregate liquidation preference
of New Preferred, pursuant to exercises of the New Preferred Acquisition Options
and/or Section 5.04 hereof.
Section 5.02. CE Mark Notice. Promptly upon obtaining a CE Mark in
Europe on its initial product, the Company shall provide the Committed Investor
with notice thereof.
Section 5.03. Equity Financing Option Notice. The Committed Investor may
exercise the Equity Financing Option by providing notice thereof, and signed by
such Committed Investor, to the Company prior to the Expiration Date.
Section 5.04. Purchases of New Preferred. If the aggregate liquidation
preference of the New Preferred purchased and sold pursuant to exercises of New
Preferred Acquisition Options is less than $10,000,000, then, promptly following
the expiration date of such New Preferred Acquisition Options, the Committed
Investor shall purchase from the Company, and the Company shall sell to such
Committed Investor, in addition to any New Preferred purchased and sold pursuant
to the New Preferred Acquisition Option, a number of shares of New Preferred as
has an aggregate liquidation preference equal to the difference between
$10,000,000 and the aggregate liquidation preference of the New Preferred
actually purchased and sold pursuant to exercises of New Preferred Acquisition
Options.
ARTICLE VI
COVENANTS
Section 6.01. Covenants of Committed Investor. The Committed Investor
covenants and agrees, subject to the terms and conditions hereof, that it shall
(a) execute and deliver such instruments and take such other actions as the
Company may reasonably require in order to carry out the intent and purpose of
this Commitment Agreement, (b) use its reasonable best efforts to obtain any
consents required herein to be obtained by it, (c) use its reasonable best
efforts to oppose any litigation that seeks to restrain or prohibit the
consummation of the transactions contemplated hereby and (d) use its reasonable
best efforts to cause the conditions to closing set forth in Article VII hereof
to be satisfied.
7
<PAGE>
Section 6.02. Confidential Treatment. (a) The Committed Investor
acknowledges that it has and will receive Confidential Information (as defined
below) of significant value to the Company in connection with the purchase and
ownership of Subject Securities. The Committed Investor shall at all times keep
documents or other materials containing Confidential Information in a secure
place, shall not use the Confidential Information for any purpose other than the
evaluation of its investment in the Company, except as otherwise agreed to in a
writing signed by the Company, and shall not disclose any of the Confidential
Information in any manner whatsoever, in whole or in part, to any person for any
reason or purpose whatsoever except (i) if such Committed Investor is required
by a court of competent jurisdiction to so disclose after notice has been given
to the Company and the Company has had an opportunity to oppose such disclosure
or seek a protective order to the extent practicable, (ii) to employees and
representatives of such Committed Investor, if any, who need to know such
information in connection with such Committed Investor's investment in the
Company ("Necessary Agents") provided that such Committed Investor shall inform
each such Necessary Agent of the confidential nature of such information, obtain
their agreement (the "Necessary Agent Confidentiality Agreement") to hold all
Confidential Information in strict confidence and not to use it for any purpose
other than as permitted hereunder and ensure the performance by each Necessary
Agent of such Necessary Agent Confidentiality Agreement.
(b) "Confidential Information" means any and all information provided to
the Committed Investor by or on behalf of the Company in connection with the
purchase and ownership of Subject Securities or otherwise, except for
information which such Committed Investor can establish (1) is generally known
to the public other than as a result of the breach by a Committed Investor or
any Affiliate of a Committed Investor of an obligation of confidentiality to the
Company, (2) was known by such Committed Investor (as evidenced by written
records) prior to its receipt by such Committed Investor from the Company or (3)
was disclosed to such Committed Investor by a third party under no obligation of
confidence.
ARTICLE VII
CONDITIONS TO CLOSING
The obligations of each party to be performed at the Closing shall be
subject to the satisfaction or waiver, by the Company and the Committed
Investor, of the following conditions:
Section 7.01. Approval of New Preferred. The Revised Charter shall have
been approved by all required stockholder votes.
Section 7.02. Approval by the Holders of Series B Convertible Preferred
Stock. The Company shall have obtained the affirmative consent or approval of at
least two-thirds of the shares of the outstanding Series B Convertible Preferred
Stock, voting separately as a class:
(a) to enter into the transactions contemplated by the Offering
Documents, including, without limitation, any such transactions which constitute
transactions between the Company and any Affiliate (as defined in the Company's
Revised Charter) of the Company or any subsidiary thereof; and
8
<PAGE>
(b) to incur, approve or authorize the incurrence of the indebtedness
represented by the Bridge Notes.
Section 7.03. Representations and Warranties. The representations and
warranties of the Committed Investor or the Company, respectively, contained in
this Commitment Agreement shall be true and correct in all material respects as
of the date first above written and as of the date of the Closing.
Section 7.04. Amendment of Registration Rights Agreement. The
Registration Rights Agreement, dated as of May 17, 2000 among the Company and
the Investor identified therein shall have been amended and restated to read
substantially as set forth in Exhibit D.
Section 7.05. Waiver of Preemptive Rights. It shall be a condition to
the obligations of the Company to be performed at the Closing that the
preemptive rights of the Stockholders (as defined in the Stockholders Agreement,
dated as of May 17, 2000, among the Company and the Stockholders identified
therein (the "Stockholders Agreement")) pursuant to the Stockholders Agreement
shall have been waived with respect to the Offering.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Waivers. Any failure of any of the parties hereto to
comply with any obligation, covenant, agreement or condition herein may be
expressly waived by the party or parties to which such obligation, covenant or
agreement is owed or for whose benefit such condition exists to the extent
permitted under applicable law. Any such waiver shall be in a writing signed by
an officer or agent of the party giving such waiver thereunto duly authorized.
Any waiver or any failure to insist upon strict compliance with any such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
Section 8.02. Brokers and Finders; Expenses. Each of the parties hereto
represents and warrants to the others of them that no broker or finder
(including any of its officers, directors or agents) is entitled to any
brokerage or finder's fee or other commission from it based on agreements,
arrangements or undertakings made by it in connection with this Commitment
Agreement or the transactions contemplated hereby. Except as otherwise provided
in this Commitment Agreement, each party shall bear its own costs and expenses
in connection herewith.
Section 8.03. Notices. Any notice, demand, claim or other communications
under this Commitment Agreement shall be in writing and shall be deemed to have
been given upon personal delivery thereof, or upon receipt thereof if sent by
registered mail, return receipt requested, postage prepaid, or upon confirmation
of delivery thereof by courier service, if sent by recognized overnight courier
service, to the respective address of the parties set forth below (or such other
address as a party may specify by notice given as herein provided):
9
<PAGE>
If to the Company, to:
Nephros, Inc.
3960 Broadway
New York, NY 10032
Telephone: (212) 781-5113
Telecopy: (212) 781-5166
Attn: President
with a copy (which shall not constitute notice) to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
Attention: Peter G. Smith, Esq. and
Monica C. Lord, Esq.
If to the Committed Investor, to the address for such Committed Investor as set
forth on Schedule I.
Section 8.04. Successors and Assigns. This Commitment Agreement and all
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but
neither this Commitment Agreement nor any of the rights, interests or
obligations hereunder may be assigned by any of the parties hereto without the
prior written consent of the other parties; provided, however, that the
Committed Investor may, without such consent, assign its rights hereunder to any
person or entity controlled by, controlling, or under common control with such
Committed Investor. Any attempted assignment without the aforementioned prior
written consent will be null and void.
Section 8.05. Headings. The headings of the Articles and Sections of
this Commitment Agreement are inserted for convenience only and shall not affect
the interpretation hereof.
Section 8.06. Entire Agreement. This Commitment Agreement (including the
Exhibits and Schedules hereto) contains the entire understanding of the parties
hereto with respect to the subject matter hereof. There are no restrictions
promises, representations, warranties, covenants, or undertakings among the
parties relating to the subject matter hereof other than those expressly set
forth or referred to herein. This Commitment Agreement supersedes all prior
agreements and understandings among the parties with respect to the subject
matter hereof.
Section 8.07. Counterpart. This Commitment Agreement may be executed in
two or more counterparts, and each such counterpart shall be deemed an original
but all such counterparts together shall constitute one and the same agreement.
Delivery of an executed counterpart of this Commitment Agreement by facsimile
shall be equally as effective as delivery of an original executed counterpart of
this Commitment Agreement.
10
<PAGE>
Section 8.08. Governing Law. This Commitment Agreement and the legal
relations between the parties hereto shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without giving
effect to the provisions, principles or policies thereof respecting conflict or
choice of laws.
Section 8.09. Survival. The representations and warranties of the
parties hereto shall survive only until the Closing but not thereafter.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Agreement to be duly executed by their duly authorized officers, partners or
agents, as of the day and year first above written.
NEPHROS, INC.
By: /s/ Norman J. Barta
--------------------------
Name: Norman J. Barta
Title: President and CEO
/s/ Ronald Perelman
--------------------------
Ronald Perelman
12
<PAGE>
SCHEDULE I
(Commitment Portions and Addresses)
Committed Investor Address Commitment Portion
------------------ ------------------------ -------------------
Ronald Perelman 35 East 62nd Street 100%
New York, New York 10021
13
<PAGE>
SCHEDULE 3.03
(Obligations to Issue or Redeem Stock)
Class Shares
------------------------------------------------------------------------
Common Stock Outstanding 5,609,500
Preferred Series A Outstanding 4,000,000
Preferred Series B Outstanding 2,333,333
Preferred Series C Outstanding (including
convertible shares) 3,387,550
Warrants Outstanding 725,000
Options Allocated 4,056,500
Options Unallocated 943,500
----------
Total Shares 21,055,383
----------
14
<PAGE>
EXHIBIT A
(Form of Bridge Note)
15
<PAGE>
EXHIBIT B
(Form of Amended and Restated Certificate of Incorporation)
16
<PAGE>
EXHIBIT C
(Form of Subscription Agreement)
17