Careview Communications, Inc. 8-K


EXHIBIT
10.22 


 Execution
Copy


FIFTH
AMENDMENT TO

NOTE AND WARRANT PURCHASE AGREEMENT


This
FIFTH AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT, dated as of December 15, 2014 (this “Amendment”),
is made by and among CAREVIEW COMMUNICATIONS, INC., a Nevada corporation (the “Company”), and the investors
identified on Annex I attached hereto (together with their respective successors and permitted assigns, the “Investors”).


WITNESSETH:


WHEREAS,
the Company, HealthCor Partners Fund, L.P. (“HealthCor Partners”) and HealthCor Hybrid Offshore Master Fund,
L.P. (“HealthCor Hybrid” and, together with HealthCor Partners, the “HealthCor Parties”)
are parties to that certain Note and Warrant Purchase Agreement, dated as of April 21, 2011 (as amended from time to time, including
without limitation pursuant to that certain Note and Warrant Amendment Agreement dated December 20, 2011, that certain Second
Amendment to Note and Warrant Purchase Agreement dated January 31, 2012, that certain Third Amendment to Note and Warrant Purchase
Agreement dated August 20, 2013, and that certain Fourth Amendment to Note and Warrant Purchase Agreement dated January 16, 2014,
the “Purchase Agreement”); and


WHEREAS,
the Company issued and sold (a) $5,000,000 initial principal amount of additional Notes (as contemplated by the Purchase Agreement)
to the HealthCor Parties on January 31, 2012 and (b) $5,000,000 initial principal amount of additional Notes and additional Warrants
to purchase 4,000,000 shares of Common Stock to the HealthCor Parties on January 16, 2014; and


WHEREAS,
pursuant to Section 7.9 of the Purchase Agreement and subject to the terms and conditions contained herein, the parties hereto
desire to amend the Purchase Agreement as set forth herein for the purposes of, among other things, providing for an additional
investment in the Company by HealthCor Partners and the New Investors (as defined herein); and


WHEREAS,
the Investors wish to purchase from the Company, and the Company wishes to sell and issue to the Investors, upon the terms
and conditions stated herein and in the Purchase Agreement, (i) additional Notes in the initial aggregate principal amount of
$6,000,000, with a conversion price per share equal to $0.52 (subject to adjustment as described therein) (the “Fifth
Amendment Supplemental Closing Notes”), and (ii) additional Warrants to purchase an aggregate of up to 3,692,308 shares
of the Company’s Common Stock, at an exercise price per share equal to $0.52 (subject to adjustment as described therein)
(the “Fifth Amendment Supplemental Warrants”), in each case on January 12, 2015, or such earlier date as the
Company and the Investors may agree (the “Fifth Amendment Supplemental Closing Date”); and


WHEREAS,
the Company and the Investors are executing and delivering this Amendment in reliance upon the exemption from securities registration
afforded by the provisions of Regulation D, as promulgated by the Commission under the Act.


 




    	



    	 



    

 


NOW,
THEREFORE, in consideration of the mutual promises, representations, warranties and covenants contained herein and in the
Purchase Agreement, which represent integral components of the transactions contemplated hereby and thereby and shall be fully
enforceable by the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which hereby
acknowledged, the Company and the Investors mutually agree as follows:


1.Definitions.
Capitalized terms used in this Amendment but not defined in this Amendment shall have the meanings ascribed to them in the Purchase
Agreement.


2.Amendments
to Purchase Agreement. Section 1.3 of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:


“Sale
of Additional Securities. After the Closing, the Company may sell to the Investors, on the same terms and conditions as those
contained in this Agreement (as amended from time to time), up to $16,000,000 in additional Notes and Warrants to purchase an
additional 7,692,308 shares of Common Stock, and (a) any such additional Notes shall be included within the definition of “Notes”
under this Agreement; (b) any such additional Warrants shall be included within the definition of “Warrants” under
this Agreement; (c) any such additional Notes and additional Warrants shall be included within the definition of “Closing
Securities” under this Agreement; (d) any shares of Common Stock issuable upon conversion of any such additional Notes shall
be included within the definition of “Note Shares” under this Agreement; (e) any shares of Common Stock issuable upon
the exercise of any such additional Warrants shall be included within the definition of “Warrant Shares” under this
Agreement; and (f) any amendment or joinder to this Agreement, the Notes, the Warrants, the Security Agreement, the IP Security
Agreement, the Registration Rights Agreement or any other documents contemplated or necessitated hereby in order to further consummate
the sale of any such additional Notes and/or additional Warrants shall be included within the definition of “Transaction
Documents” under this Agreement. Any such additional Notes shall be substantially in the form of the senior secured convertible
note attached hereto as Exhibit A, with such updates to the “Issuance Date”, “Maturity Date”, “First
Five Year Note Period”, “Conversion Price” and other terms as shall be mutually acceptable to the Company and
the Investors. Any such additional Warrants shall be substantially in the form of common stock warrant attached hereto attached
hereto as Exhibit B, with such updates to the “Expiration Date”, “Warrant Price” and other terms
as shall be mutually acceptable to the Company and the Investors.”


 




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3.Joinder
of Additional Investors to Purchase Agreement and Registration Rights Agreement. The Investors other than the HealthCor Parties
(such Investors, the “New Investors”) hereby join in the execution and agree to be bound by, and are hereby
deemed a party to, the Purchase Agreement and the Registration Rights Agreement, as one of the “Investors” under the
Purchase Agreement and one of the “Holders” under the Registration Rights Agreement, in each case for all purposes
thereof. The Company hereby acknowledges and agrees that the New Investors are hereby joining in the execution of and agreeing
to be bound by and will be deemed a party to, the Purchase Agreement and the Registration Rights Agreement, as one of the “Investors”
under the Purchase Agreement and one of the “Holders” under the Registration Rights Agreement for all purposes thereof
and shall be entitled to all of the rights, benefits and terms thereof as an Investor or Holder, as the case may be. By executing
this Amendment, each of the New Investors (severally and not jointly) hereby acknowledges and agrees that it is bound by all terms
and conditions of the Purchase Agreement that apply to an Investor and all of the terms and conditions of the Registration Rights
Agreement that apply to a Holder, and joins in the representations and warranties of the several Investors under Article 3 of
the Purchase Agreement to the extent set forth in Section 7 of this Amendment.


4.No
Further Amendments. Except as amended by this Amendment, the Purchase Agreement shall remain in full force and effect in accordance
with its terms.


5.Issuance
of Fifth Amendment Supplemental Closing Notes and Fifth Amendment Supplemental Warrants. Subject to the terms and conditions
of this Amendment and the Purchase Agreement (including without limitation Section 7.6 of the Purchase Agreement), on the Fifth
Amendment Supplemental Closing Date, each of the Investors listed on Annex I shall severally, and not jointly, purchase
from the Company, and the Company shall sell and issue to each Investor, the Fifth Amendment Supplemental Closing Notes and the
Fifth Amendment Supplemental Warrants in the respective amounts set forth opposite each such Investor’s name on Annex
I in exchange for a cash payment by each such Investor of the amount set forth opposite such Investor’s name on Annex
I (the “Fifth Amendment Supplemental Purchase Price”). The Fifth Amendment Supplemental Closing Notes shall
be substantially in the form attached hereto as Exhibit A-1, and the Fifth Amendment Supplemental Warrants shall be substantially
in the form attached hereto as Exhibit B-1. The closing of the purchase, sale and issuance of the Fifth Amendment Supplemental
Closing Notes and Fifth Amendment Supplemental Warrants (the “Fifth Amendment Supplemental Closing”) shall
take place on the Fifth Amendment Supplemental Closing Date at the offices of Edwards Wildman Palmer LLP, 111 Huntington Avenue,
Boston, Massachusetts 02199, or at such other location as the Company and the Investors shall mutually agree. At the Fifth Amendment
Supplemental Closing, the Company shall have satisfied the closing conditions set forth in subsections (c)-(h), (j), (k) and (l)
of Section 4.1 of the Purchase Agreement as of the Fifth Amendment Supplemental Closing Date (for avoidance of doubt, reading
references to the “Closing Date” in such subsections to refer to the Fifth Amendment Supplemental Closing Date) and
shall deliver to the Investors the Fifth Amendment Supplemental Closing Notes and the Fifth Amendment Supplemental Warrants, each
registered in such name or names as the Investors may designate. Without limiting the foregoing, the Company and the Subsidiaries
of the Company shall each deliver to the Investors at such closing a counterpart to the Amended and Restated Credit Agreement
and the Amended and Restated IP Security Agreement (each as defined below), in each case duly executed by an authorized representative
of the Company or the Subsidiary of the Company, as the case may be. On the Fifth Amendment Supplemental Closing Date, the Investors
shall deliver the Fifth Amendment Supplemental Purchase Price to the Company, payable by wire transfer in same day funds to an
account specified by the Company in writing. The Fifth Amendment Supplemental Closing Notes shall be secured as and to the same
extent as the other Notes issued pursuant to the Purchase Agreement, as described in the Transaction Documents, including, without
limitation, the Security Agreement and IP Security Agreement (each as amended as of the date hereof).


 




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6.Bringdown
of Company’s Representations and Warranties. The Company represents and warrants to the Investors that, except as set
forth in a disclosure letter delivered to the Investors as of the Fifth Amendment Supplemental Closing Date, the statements contained
in Article 2 and the first sentence of Section 5.1(k) of the Purchase Agreement are true and correct as of the Fifth
Amendment Supplemental Closing Date as though made as of such date, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations and warranties are true and correct as of such other
specified date). For the avoidance of doubt, as a result of the operation of this Section 6 and for purposes hereof, any
representation and warranty made in the Purchase Agreement “as of the Closing Date” shall be deemed to be made as
of the Fifth Amendment Supplemental Closing Date, any reference in a representation and warranty to “the date hereof”
shall be deemed to refer to the date of this Amendment, any retroactive time period set forth in a representation and warranty
shall be deemed to be retroactive from the date of this Amendment for such time period, and any reference to “Closing Securities”
shall be deemed to refer to the Fifth Amendment Supplemental Closing Notes and the Fifth Amendment Supplemental Warrants.


7.Bringdown
of Investors’ Representations and Warranties. Each Investor, severally and not jointly, represents and warrants to the
Company that the statements contained in Article 3 of the Purchase Agreement are true and correct as of the Fifth Amendment
Supplemental Closing Date as though made as of the Fifth Amendment Supplemental Closing Date (for this purpose, reading any reference
to “Closing Securities” in such Article 3 to refer only to the Fifth Amendment Supplemental Closing Notes and
the Fifth Amendment Supplemental Warrants).


8.Form D
and Blue Sky. The Company agrees to file a Form D with respect to the Fifth Amendment Supplemental Closing Notes and
the Fifth Amendment Supplemental Warrants as required under Regulation D and to provide a copy thereof to the Investors promptly
after such filing. The Company shall take such action as is necessary in order to obtain an exemption for or to qualify the Fifth
Amendment Supplemental Closing Notes and the Fifth Amendment Supplemental Warrants for sale to the Investors at the Fifth Amendment
Supplemental Closing pursuant to this Amendment under applicable securities or “Blue Sky” laws of the states of the
United States, and shall provide evidence of any such exemption or qualification so taken to the Investors on or prior to the
Fifth Amendment Supplemental Closing Date promptly upon the request of any Investor.


9.Acknowledgement
and Undertaking by Company. The Company agrees and acknowledges that the transactions described in this Amendment and the
issuance of the Fifth Amendment Supplemental Closing Notes, the Fifth Amendment Supplemental Warrants and shares of Common Stock
upon exercise or conversion of the Fifth Amendment Supplemental Closing Notes and Fifth Amendment Supplemental Warrants are intended
to be exempt from Section 16(b) of the Exchange Act pursuant to one or more rules promulgated thereunder, applicable law and the
Commission’s releases and interpretations, and will, from time to time as and when requested by the Investors, and will
cause its successors and assigns to, execute and deliver or cause to be executed and delivered, to the extent it may lawfully
do so, all such documents and instruments and take, or cause to be taken, to the extent it may lawfully do so, all such further
actions as the Investors may reasonably deem necessary and desirable to facilitate and effect any such exemption.


 




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10.Miscellaneous.


a.Ratification
and Confirmation. The Company acknowledges, agrees and confirms that: (x) the Purchase Agreement and each of the other Transaction
Documents, as amended and otherwise modified by the amendments and other modifications specifically provided herein or contemplated
hereby, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed; and (y) without
limiting the generality of the foregoing clause (x), (i) all obligations, liabilities and Indebtedness of the Company under the
Transaction Documents, as amended hereby, constitute “Obligations” (as defined in the Security Agreement) secured
by and entitled to the benefits of the security set forth in the Security Agreement and the IP Security Agreement, and the liens
and security interests granted in favor of the Investors under the terms of the Security Agreement and the IP Security Agreement
are and remain perfected, effective, enforceable and valid and such liens and security interests are, in each case, a first priority
lien and security interest (except to the extent otherwise expressly permitted by the Transaction Documents) and such liens and
security interests are hereby in all respects ratified and confirmed, and (ii) the shares of Common Stock issuable upon exercise
or conversion of the 2014 Supplemental Closing Notes and the 2014 Supplemental Warrants shall constitute “Registrable Securities”
under the Registration Rights Agreement. At the Fifth Amendment Supplemental Closing Date, the Company shall deliver to the Investors
an executed copy of the Amended and Restated Pledge and Security Agreement and an executed copy of the Amended and Restated IP
Security Agreement, in the forms set forth as Exhibit C-1 and Exhibit C-2 hereto, respectively, with such alterations
or amendments as the parties thereto may mutually agree (the “Amended and Restated Security Agreement” and
the “Amended and Restated IP Security Agreement”, respectively), in order to reflect the addition of the New
Investors as Securd Parties thereunder and to provide for the appointment of a collateral agent thereunder.


b.Expenses.
The Company will pay and bear full responsibility for the reasonable legal fees and other out-of-pocket costs and expenses of
the Investors attributable to the negotiation and consummation of the transactions contemplated hereby.


c.Further
Assurances. The Company shall duly execute and deliver, or cause to be duly executed and delivered, at its own cost and expense,
such further instruments and documents and to take all such action, in each case as may be necessary or proper in the reasonable
judgment of the Investors to carry out the provisions and purposes of this Amendment.


d.Survival.
The representations, warranties, covenants and agreements made herein shall survive any investigation made by any party hereto,
the execution and delivery of this Amendment and the closing of the transactions contemplated hereby.


 




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e.Governing
Law. All questions concerning the construction, interpretation and validity of this Amendment shall be governed by and construed
and enforced in accordance with the domestic laws of the State of Delaware without giving effect to any choice or conflict of
law provision or rule (whether in the State of Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware. In furtherance of the foregoing, the internal law of the State of Delaware
will control the interpretation and construction of this Amendment, even if under such jurisdiction’s choice of law or conflict
of law analysis, the substantive law of some other jurisdiction would ordinarily or necessarily apply.


f.Construction.
The Company and the Investors acknowledge that the Company and its independent counsel and the Investors and their independent
counsel have jointly reviewed and drafted this document, and agree that any rule of construction and interpretation to the effect
that drafting ambiguities are to be resolved against the drafting party shall not be employed.


g.Counterparts;
Facsimile and Electronic Signatures. This Amendment may be executed in any number of counterparts, and each such counterpart
hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. Counterpart
signatures to this Amendment delivered by facsimile or other electronic transmission shall be acceptable and binding.


h.Headings.
The section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Amendment.


 


[Signature
Pages Follow]


 


 




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IN
WITNESS WHEREOF, each of the undersigned has duly executed this Fifth Amendment to Note and Warrant Purchase Agreement as
of the date first written above.


 


 


	 	COMPANY:
	 	 	 
	 	CareView Communications, Inc., A Nevada corporation
	 	 	 
	 	By:	/s/ Steven G. Johnson
	 	 	Name: Steven
G. Johnson
	 	 	Title: President



 


 


	 	INVESTORS:
	 	 	 
	 	HealthCor Partners Fund, L.P.
	 	By: HealthCor Partners Management L.P., as Manager
	 	By: HealthCor Partners Management, G.P., LLC, as General Partner
	 	 	 
	 	By:	/s/ Jeffrey C. Lightcap
	 	Name: Jeffrey C. Lightcap
	 	Title: Senior Managing Director



 


	 	Address:	HealthCor Partners
	 	 	Carnegie
Hall Towers
	 	 	152
West 57th Street
	 	 	New
York, NY 10019



 


 


	 	HealthCor Hybrid Offshore Master Fund, L.P.
	 	By: HealthCor Hybrid Offshore G.P., LLC, as General Partner
	 	 	 
	 	By:	/s/ Joseph Healey
	 	Name: Joseph Healey
	 	Title: Co-CEO



 


	 	Address:	HealthCor Partners
	 	 	Carnegie
Hall Towers
	 	 	152
West 57th Street
	 	 	New
York, NY 10019




 


 


[signature
page to Fifth Amendment to Note and Warrant Purchase Agreement]









    	 



    	 



    

 


 





	 	/s/ Allen Wheeler
	 	Allen Wheeler
	 	 
	 	/s/ Steven Johnson
	 	Steven Johnson
	 	 
	 	/s/ Jason Thompson
	 	Jason Thompson
	 	 
	 	/s/ Sandra McRee
	 	Sandra McRee
	 	 
	 	/s/ Steven B. Epstein
	 	Steven B. Epstein
	 	 
	 	/s/ James R. Higgins
	 	Dr. James R. Higgins
	 	 
	 	/s/ Jeffrey C. Lightcap
	 	Jeffrey C. Lightcap



 


 


[signature
page to Fifth Amendment to Note and Warrant Purchase Agreement]









    	 



    	 



    

 


ACKNOWLEDGED AND AGREED:


 


	CareView Communications, Inc., A Texas corporation	 
	 	 	 
	By:	/s/ Steven G. Johnson	 
	Name: 	Steven G. Johnson	 
	Title: 	President	 
	 	 	 
	CareView Operations, LLC	 
	 	 	 
	By:	/s/ Steven G. Johnson	 
	Name: 	Steven G. Johnson	 
	Title: 	President	 



  



 


[signature
page to Fifth Amendment to Note and Warrant Purchase Agreement]









    	 



    	 



    

 


Annex
I


 


Investors


 


	Investor	Fifth
    Amendment Supplemental Closing Notes	Fifth
    Amendment Supplemental Warrants	Fifth
    Amendment Supplemental Purchase Price
	HealthCor
    Partners Fund, L.P.	$1,000,000	615,385	$1,000,000
	HealthCor
    Hybrid Offshore Master Fund, L.P.	N/A	N/A	N/A
	Allen
    Wheeler	$500,000	307,692	$500,000
	Steven
    Johnson	$750,000	461,539	$750,000
	Jason
    Thompson	$200,000	123,077	$200,000
	Sandra
    McRee	$100,000	61,538	$100,000
	Steven
    Epstein	$450,000	276,923	$450,000
	Dr.
    James Higgins	$500,000	307,692	$500,000
	Jeffrey
    C. Lightcap	$2,500,000	1,538,462	$2,500,000
	TOTAL	$6,000,000	3,692,308	$6,000,000


 


 




    	 



    	 



    

 


Exhibit
A-1


 


Form
of Fifth Amendment Supplemental Closing Notes


 


See attached.


 


 


 


 




    	 



    	 



    

 


Exhibit
B-1


 


Form
of Fifth Amendment Supplemental Warrants


 


See attached.


 




    	 



    	 



    

 


Exhibit
C-1


 


Form
of Amended and Restated Pledge and Security Agreement


 


See attached.


 




    	 



    	 



    

 


 


Exhibit
D-1


 


Form
of Amended and Restated IP Security Agreement


 


See attached.