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STOCK PURCHASE AGREEMENT
By and Between
MEDICAL MEDIA TELEVISION, INC.
and
VICIS CAPITAL MASTER FUND
April 18, 2007
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement"), dated this 18th day of
April, 2007, is made by and between MEDICAL MEDIA TELEVISION, INC., a Florida
corporation (the "Company"), and VICIS CAPITAL MASTER FUND, a trust formed under
the laws of the Cayman Islands (the "Purchaser").
R E C I T A L S
WHEREAS, pursuant to the terms and conditions of this Agreement, the
Company wishes to issue and sell to the Purchaser, and the Purchaser wishes to
acquire from the Company 5,000,000 shares (the "Acquired Shares") of the
Company's common stock, par value $.0005 per share (the "Common Stock").
WHEREAS, the Purchaser is also the holder of (a) certain warrants
issued by the Company to acquire Common Stock of the Company (the "Warrants");
(b) certain shares of preferred stock of the Company convertible into Common
Stock of the Company (the "Preferred Shares"); and (c) certain promissory notes
and debentures convertible into Common Stock of the Company (the "Notes").
WHEREAS, the Warrants, the Preferred Shares, and the Notes are subject
to certain anti-dilution provisions (the "Ratchet Provisions") that require the
Company to reduce the exercise price of the Warrants and the conversion price of
the Preferred Shares and Notes in the event that the Company issues its Common
Stock in certain transactions for a price less than the exercise price of the
Warrants or the conversion price of the Preferred Shares or Notes, as the case
may be;
WHEREAS, although the Company's issuance and sale of the Acquired
Shares to the Purchaser pursuant to this Agreement triggers the Ratchet
Provision described in the preceding paragraph, the Purchaser has agreed to
waive the Ratchet Provisions contained in the Preferred Shares and Notes solely
in connection with this transaction.
NOW, THEREFORE, the Company and the Purchaser hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE ACQUIRED SHARES
1.1 Purchase and Sale of the Acquired Shares. Subject to the terms and
conditions hereof and in reliance on the representations and warranties
contained herein, or made pursuant hereto, the Company will issue and sell to
the Purchaser, and the Purchaser will purchase from the Company at the closing
of the transactions contemplated hereby (the "Closing"), the Acquired Shares for
$50,000 in cash (the "Purchase Price").
1.2 Closing. The Closing shall be deemed to occur at the offices of
Xxxxxxx & Xxxxx, LLP, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx at 5:00
p.m. CDT on April 18, 2007 or at such other place, date or time as mutually
agreeable to the parties (the "Closing Date).
1.3 Closing Matters. On the Closing Date, subject to the terms and
conditions hereof, the Company will deliver to the Purchaser a certificate,
registered in the name of the Purchaser, representing the Acquired Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as of the
date of this Agreement as follows:
2.1 Organization and Qualification. The Company is a corporation duly
organized and validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, and has all requisite corporate power
and authority to carry on its business as now conducted. The Company is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which its ownership of property or the nature of the
business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not have
a Material Adverse Effect. As used in this Agreement, "Material Adverse Effect"
means any material adverse effect on the business, properties, assets,
operations, results of operations, condition (financial or otherwise) or
prospects of the Company or its Subsidiaries (as defined below) or on the
transactions contemplated hereby or by the agreements and instruments to be
entered into in connection herewith, or on the authority or ability of the
Company to perform its obligations under the Transaction Documents (as
hereinafter defined).
2.2 Subsidiaries. The Company has no subsidiaries other than PetCARE
Television Network, Inc., a Florida corporation ("PetCARE"), African American
Medical Network, Inc., a Florida corporation ("African American Medical"), and
KidCARE Medical Television Network, Inc., a Florida corporation ("KidCARE")
(each a "Subsidiary" and collectively, the "Subsidiaries"). Except as set forth
on Schedule 2.2, the Company owns, directly or indirectly, all of the capital
stock of its Subsidiaries, free and clear of any and all Liens, and all the
issued and outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive and similar
rights. Each Subsidiary is a corporation duly organized and validly existing and
in good standing under the laws of the jurisdiction in which it is incorporated,
and has all requisite corporate power and authority to carry on its business as
now conducted. Each Subsidiary is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect.
2.3 No Violation. Neither the Company nor any of its Subsidiaries is in
violation of: (a) any of the provisions of its certificate or articles of
incorporation, bylaws or other organizational or charter documents; or (b) any
judgment, decree or order or any statute, ordinance, rule or regulation
applicable to the Company or any of its Subsidiaries, except for possible
violations which would not, individually or in the aggregate, have a Material
Adverse Effect.
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2.4 Capitalization.
(a) Immediately before the Closing, the authorized capital stock of
the Company consists of: (i) 100,000,000 shares of Common Stock, of which (A)
47,014,189 shares are issued and outstanding, (B) no shares of Common Stock held
in treasury, (C) 52,819,872 shares of Common Stock reserved for issuance upon
the exercise of options, warrants and other securities convertible into Common
Stock; and (ii) 25,000,000 shares of Preferred Stock, of which 1,682,044 shares
have been designated as "Series A Preferred Stock," 2,612,329 shares have been
designated as "Series B Preferred Stock," and 400,000 shares have been
designated as "Series C Preferred Stock," of which (X) 1,682,044 shares of the
Company's Series A Preferred Stock are issued and outstanding, (Y) 2,612,329
shares of the Company's Series B Preferred Stock are issued and outstanding, and
(Z) 32,242 shares of the Company's Series C Preferred Stock are issued and
outstanding. All of such issued and outstanding shares have been, or upon
issuance will be, validly issued, are fully paid and nonassessable.
(b) Except as disclosed in the Company's reports, financial
statements, schedules, forms, statements and other documents required to be
filed by it with the Securities and Exchange Commission (the "SEC") pursuant to
the reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") or otherwise on Schedule 2.4(b), prior to the date hereof
(the "SEC Documents"):
(i) no holder of shares of the Company's capital stock has any
preemptive rights or any other similar rights or has been granted or holds any
liens or encumbrances suffered or permitted by the Company;
(ii) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any
shares of capital stock of the Company or any of its Subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to issue additional shares of capital stock
of the Company or any of its Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any
shares of capital stock of the Company or any of its Subsidiaries;
(iii) there are no outstanding debt securities, notes, credit
agreements, credit facilities or other agreements, documents or instruments
evidencing Indebtedness (as defined in Section 2.13 hereof) of the Company or
any of its Subsidiaries or by which the Company or any of its Subsidiaries is or
may become bound;
(iv) there are no financing statements securing obligations in
any material amounts, either singly or in the aggregate, filed in connection
with the Company any of its Subsidiaries;
(v) there are no agreements or arrangements under which the
Company or any of its Subsidiaries is obligated to register the sale of any of
their securities under the Securities Act of 1933, as amended, (the "Securities
Act");
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(vi) there are no outstanding securities or instruments of the
Company or any of its Subsidiaries that contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries; and
(vii) the Company does not have any stock appreciation rights or
"phantom stock" plans or agreements or any similar plan or agreement.
(c) Except for the Warrants, the Preferred Stock and the Notes, or
as set forth in Schedule 2.4(c), there are no securities or instruments
containing antidilution provisions, provisions similar to the Ratchet
Provisions, or other similar provisions that will be triggered by the issuance
of the Acquired Shares.
2.5 Issuance of the Acquired Shares. The Acquired Shares to be issued
hereunder are duly authorized and, upon payment and issuance in accordance with
the terms hereof, shall be fully paid and nonassessable and are free from all
taxes, Liens and charges with respect to the issuance thereof.
2.6 Authorization; Enforcement; Validity. The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement and each of the other agreements or instruments entered into by
the parties hereto in connection with the transactions contemplated by this
Agreement (collectively, the "Transaction Documents") and to issue the Acquired
Shares in accordance with the terms hereof and thereof. The execution and
delivery of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby, including, without
limitation, and the issuance of the Acquired Shares, have been duly authorized
by the board of directors of the Company (the "Board"), and no further consent
or authorization is required by the Company, the Board or its stockholders. This
Agreement and the other Transaction Documents of even date herewith have been
duly executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company enforceable against the Company in accordance
with their respective terms, except (i) as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of applicable creditors' rights and
remedies, or (ii) as any rights to indemnity or contribution hereunder may be
limited by federal and state securities laws and public policy consideration.
2.7 No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby will not (i) result in a violation
of any articles or certificate of incorporation, any certificate of
designations, preferences and rights of any outstanding series of preferred
stock or bylaws of the Company or any of its Subsidiaries or (ii) conflict with,
or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party, or (iii)
result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to the
Company or any of its Subsidiaries or by which any property or asset of the
Company or any of its Subsidiaries is bound or affected, except in the case of
clauses (ii) and (iii), for such breaches or defaults as would not be reasonably
expected to have a Material Adverse Effect.
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2.8 Governmental Consents. Except for the filing of a Form D and Form
8-K with the SEC, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court,
governmental agency or any regulatory or self-regulatory agency or any other
Person (as hereinafter defined) in order for it to execute, deliver or perform
any of its obligations under or contemplated by the Transaction Documents, in
each case, in accordance with the terms hereof or thereof. All consents,
authorizations, orders, filings and registrations which the Company is required
to obtain at or prior to the Closing pursuant to the preceding sentence have
been obtained or effected. The Company is unaware of any facts or circumstances
which might prevent the Company from obtaining or effecting any of the
foregoing.
2.9 No General Solicitation. Neither the Company, nor any of its
affiliates, nor any Person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
the Acquired Shares.
2.10 No Integrated Offering. None of the Company, its subsidiaries, any
of their affiliates, and any Person acting on their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would require registration of the
Acquired Shares under the Securities Act or cause this offering of the Acquired
Shares to be integrated with prior offerings by the Company for purposes of the
Securities Act or any applicable stockholder approval provisions.
2.11 Placement Agent's Fees. No brokerage or finder's fee or commission
are or will be payable to any Person with respect to the transactions
contemplated by this Agreement based upon arrangements made by the Company or
any of its affiliates.
2.12 Litigation. Except as set forth on Schedule 2.12, There is no
action, suit, proceeding, inquiry or investigation before or by any court,
public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company, threatened against or affecting the
Company, the transactions contemplated by the Transaction Documents, the Common
Stock or any of its Subsidiaries or any of their respective current or former
officers or directors in their capacities as such. To the knowledge of the
Company, there has not been within the past two (2) years, and there is not
pending, any investigation by the SEC involving the Company or any current or
former director or officer of the Company (in his or her capacity as such). The
SEC has not issued any stop order or other order suspending the effectiveness of
any registration statement filed by the Company under the Securities Act within
the past two (2) years.
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2.13 Indebtedness and Other Contracts. Except as disclosed in the SEC
Documents or otherwise set forth on Schedule 2.13, neither the Company nor any
of its Subsidiaries (a) has any outstanding Indebtedness (as defined below), (b)
is a party to any contract, agreement or instrument, the violation of which, or
default under, by any other party to such contract, agreement or instrument
would result in a Material Adverse Effect, (c) is in violation of any term of or
in default under any contract, agreement or instrument relating to any
Indebtedness, except where such violations and defaults would not result,
individually or in the aggregate, in a Material Adverse Effect, or (d) is a
party to any contract, agreement or instrument relating to any Indebtedness, the
performance of which, in the judgment of the Company's officers, has or is
expected to have a Material Adverse Effect. For purposes of this Agreement: (x)
"Indebtedness" of any Person means, without duplication (i) all indebtedness for
borrowed money, (ii) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (other than trade payables
entered into in the ordinary course of business), (iii) all reimbursement or
payment obligations with respect to letters of credit, surety bonds and other
similar instruments, (iv) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses, (v) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to
any property or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property), (vi) all
monetary obligations under any leasing or similar arrangement which, in
connection with generally accepted accounting principles, consistently applied
for the periods covered thereby, is classified as a capital lease, (vii) all
indebtedness referred to in clauses (i) through (vi) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any mortgage, lien, pledge, change, security
interest or other encumbrance upon or in any property or assets (including
accounts and contract rights) owned by any Person, even though the Person which
owns such assets or property has not assumed or become liable for the payment of
such indebtedness, and (viii) all Contingent Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (i)
through (vii) above; (y) "Contingent Obligation" means, as to any Person, any
direct or indirect liability, contingent or otherwise, of that Person with
respect to any indebtedness, lease, dividend or other obligation of another
Person if the primary purpose or intent of the Person incurring such liability,
or the primary effect thereof, is to provide assurance to the obligee of such
liability that such liability will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such liability
will be protected (in whole or in part) against loss with respect thereto; and
(z) "Person" means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
2.14 Financial Information; SEC Documents. Except as set forth on
Schedule 2.14, the Company has filed all reports, schedules, forms, statements
and other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Exchange Act. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
applicable to such SEC Documents, and none of such SEC Documents, at the time
they were filed with the SEC, 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. As of their respective dates, the
financial statements of the Company included in such SEC Documents complied as
to form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except (i) as may
be otherwise indicated in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the Company to
the Purchaser that is not included in the SEC Documents contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstance under
which they are or were made, not misleading.
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2.15 Absence of Certain Changes. Except as disclosed in the SEC
Documents, since December 31, 2005, there has been no material adverse change
and no material adverse development in the business, properties, operations,
condition (financial or otherwise), results of operations or prospects of the
Company or its Subsidiaries. Since December 31, 2005, the Company has not (i)
declared or paid any dividends, (ii) sold any assets, individually or in the
aggregate, in excess of $50,000 outside of the ordinary course of business or
(iii) had capital expenditures, individually or in the aggregate, in excess of
$100,000. The Company has not taken any steps to seek protection pursuant to any
bankruptcy law nor does the Company have any knowledge or reason to believe that
its creditors intend to initiate involuntary bankruptcy proceedings or any
actual knowledge of any fact which would reasonably lead a creditor to do so.
After giving effect to the transactions contemplated hereby to occur at the
Closing, the Company will not be Insolvent (as hereinafter defined). For
purposes of this Agreement, "Insolvent" means (i) the present fair saleable
value of the Company's assets is less than the amount required to pay the
Company's total indebtedness, contingent or otherwise, (ii) the Company is
unable to pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured, (iii) the Company
intends to incur or believes that it will incur debts that would be beyond its
ability to pay as such debts mature or (iv) the Company has unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted.
2.16 Foreign Corrupt Practices.
(a) Neither the Company, nor any director, officer, agent, employee
or other Person acting on behalf of the Company has, in the course of its
actions (a) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity, (b)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, (c) violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended or (d) made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic government
official or employee.
(b) None of the Subsidiaries of the Company, nor any of their
respective directors, officers, agents, employees or other Persons acting on
behalf of such subsidiaries has, in the course of their respective actions (a)
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expenses relating to political activity, (b) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds, (c) violated or is in violation of any provision
of the U.S. Foreign Corrupt Practices Act of 1977, as amended or (d) made any
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic government official or employee.
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2.17 Transactions With Affiliates. Except as set forth in the SEC
Documents, none of the officers, directors or employees of the Company is
presently a party to any transaction with the Company or any of its Subsidiaries
(other than for ordinary course services as employees, officers or directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such
officer, director or employee or, to the knowledge of the Company, any
corporation, partnership, trust or other entity in which any such officer,
director, or employee has a substantial interest or is an officer, director,
trustee or partner.
2.18 Insurance. The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and
customary in the businesses in which the Company and each of its Subsidiaries
are engaged. Neither the Company nor any of its Subsidiaries has been refused
any insurance coverage sought or applied for and neither the Company nor any of
its Subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
2.19 Employee Relations. Neither the Company nor any of its
Subsidiaries is a party to any collective bargaining agreement or employs any
member of a union. No Executive Officer of the Company (as defined in Rule
501(f) of the Securities Act) has notified the Company that such officer intends
to leave the Company or otherwise terminate such officer's employment with the
Company. No Executive Officer of the Company, to the knowledge of the Company,
is, or is now, in violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement,
non-competition agreement, or any other contract or agreement or any restrictive
covenant, and the continued employment of each such executive officer does not
subject the Company or any of its Subsidiaries to any liability with respect to
any of the foregoing matters. The Company and each of its Subsidiaries are in
compliance with all federal, state, local and foreign laws and regulations
respecting employment and employment practices, terms and conditions of
employment and wages and hours, except where failure to be in compliance would
not, either individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
2.20 Title. Except as set forth on Schedule 2.20, the Company and each
of its Subsidiaries have good and marketable title to all personal property
owned by them which is material to their respective business, in each case free
and clear of all liens, encumbrances and defects except such as are described in
the SEC Documents or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property
by the Company and its Subsidiaries. Any real property and facilities held under
lease by the Company and each of its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and each of its Subsidiaries.
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2.21 Intellectual Property Rights. Schedule 2.21 sets forth a list of
all of the Company's patents, trademarks, trade names, service marks copyrights,
and registrations and applications therefor, trade secrets and any other
intellectual property right (collectively, "Intellectual Property Rights"),
identifying whether owned by the Company, any of its Subsidiaries or a third
party. The Intellectual Property Rights are, to the best of the Company's
knowledge, fully valid and are in full force and effect. The Company does not
have any knowledge of any infringement by the Company or any of its Subsidiaries
of Intellectual Property Rights of others. There is no claim, action or
proceeding being made or brought, or to the knowledge of the Company, being
threatened, against the Company or any of its Subsidiaries regarding its
Intellectual Property Rights that could have a Material Adverse Effect. The
Company is unaware of any facts or circumstances which might give rise to any of
the foregoing infringements or claims, actions or proceedings. The Company and
its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of their Intellectual Property Rights.
2.22 Environmental Laws. The Company and each of its Subsidiaries (a)
are in compliance with any and all Environmental Laws (as hereinafter defined),
(b) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(c) are in compliance with all terms and conditions of any such permit, license
or approval where, in each of the foregoing clauses (a), (b) and (c), the
failure to so comply could be reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect. The term "Environmental Laws" means
all federal, state, local or foreign laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, "Hazardous Materials") into the
environment, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters,
injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations issued, entered, promulgated or approved thereunder.
2.23 Tax Matters. The Company and each of its Subsidiaries (a) have
made or filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject, (b) have
paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and (c) have set aside
on its books reasonably adequate provision for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations
apply, except where such failure would not have a Material Adverse Effect. There
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know of no basis
for any such claim.
2.24 Xxxxxxxx-Xxxxx Act. The Company is in compliance with any and all
requirements of the Xxxxxxxx-Xxxxx Act of 2002 that are effective as of the date
hereof and applicable to it, and any and all rules and regulations promulgated
by the SEC thereunder that are effective and applicable to it as of the date
hereof, except where such noncompliance would not have a Material Adverse
Effect.
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2.25 Investment Company Status. The Company is not, and immediately
after receipt of payment for the Acquired Shares will not be, an "investment
company," an "affiliated person" of, "promoter" for or "principal underwriter"
for, or an entity "controlled" by an "investment company," within the meaning of
the Investment Company Act.
2.26 Material Contracts. Each contract of the Company that involves
expenditures or receipts in excess of $100,000 (each an "Applicable Contract")
is in full force and effect and is valid and enforceable in accordance with its
terms. The Company has not given or received from any other entity any notice or
other communication (whether oral or written) regarding any actual, alleged,
possible or potential violation or breach of, or default under, any Applicable
Contract.
2.27 Inventory. All inventory of the Company consists of a quality and
quantity usable and salable in the ordinary course of business, except for
obsolete items and items of below-standard quality, all of which have been or
will be written off or written down to net realizable value on the consolidated
balance sheet of the Company and its Subsidiaries as of December 31, 2006. The
quantities of each type of inventory (whether raw materials, work-in-process, or
finished goods) are not excessive, but are reasonable and warranted in the
present circumstances of the Company.
2.28 Disclosure. The Company confirms that neither it nor any other
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material, nonpublic
information that has not been disclosed in the SEC Documents. The Company
understands and confirms that the Purchaser will rely on the foregoing
representations in effecting transactions in securities of the Company. All
disclosure provided to the Purchaser regarding the Company, its business and the
transactions contemplated hereby, including the Schedules to this Agreement,
furnished by or on behalf of the Company are true and correct and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as of the
date of this Agreement as follows:
3.1 Organization. The Purchaser is a corporation, limited liability
company or partnership duly incorporated or organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization.
3.2 Authorization. This Agreement has been duly authorized, validly
executed and delivered by the Purchaser and is a valid and binding agreement and
obligation of the Purchaser enforceable against the Purchaser in accordance with
its terms, subject to limitations on enforcement by general principles of equity
and by bankruptcy or other laws affecting the enforcement of creditors' rights
generally, and the Purchaser has full power and authority to execute and deliver
this Agreement and the other agreements and documents contemplated hereby and to
perform its obligations hereunder and thereunder.
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3.3 Investment Investigation. The Purchaser understands that no
Federal, state, local or foreign governmental body or regulatory authority has
made any finding or determination relating to the fairness of an investment in
the Acquired Shares and that no Federal, state, local or foreign governmental
body or regulatory authority has recommended or endorsed, or will recommend or
endorse, any investment in the Acquired Shares. The Purchaser, in making the
decision to purchase the Acquired Shares, has relied upon independent
investigation made by it and has not relied on any information or
representations made by third parties.
3.4 Accredited Investor. The Purchaser is an "accredited investor" as
defined under Rule 501 of Regulation D promulgated under the Securities Act.
3.5 No Distribution. The Purchaser is and will be acquiring the
Acquired Shares for its own account, and not with a view to any resale or
distribution of the Acquired Shares in whole or in part, in violation of the
Securities Act or any applicable securities laws.
3.6 Resale. The parties intend that the offer and sale of the Acquired
Shares be exempt from registration under the Securities Act, by virtue of
Section 4(2) and/or Rule 506 of Regulation D promulgated under the Securities
Act. The Purchaser understands that the Acquired Shares purchased hereunder have
not been, and may never be, registered under the Securities Act and that the
Acquired Shares cannot be sold or transferred unless its is first registered
under the Securities Act and such state and other securities laws as may be
applicable or in the opinion of counsel for the Company an exemption from
registration under the Securities Act is available (and then the Acquired Shares
may be sold or transferred only in compliance with such exemption and all
applicable state and other securities laws).
3.7 Reliance. The Purchaser understands that the Acquired Shares is
being offered and sold to it in reliance on specific provisions of Federal and
state securities laws and that the Company is relying upon the truth and
accuracy of the representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth herein for purposes of qualifying for
exemptions from registration under the Securities Act, and applicable state
securities laws.
ARTICLE IV
CONDITIONS TO CLOSING OF THE PURCHASERS
The obligation of the Purchaser to purchase the Acquired Shares at the
Closing is subject to the fulfillment to the Purchaser's satisfaction on or
prior to the Closing Date of each of the following conditions, any of which may
be waived by the Purchaser:
4.1 Representations and Warranties Correct. The representations and
warranties in Article II hereof shall be true and correct when made, and shall
be true and correct on the Closing Date with the same force and effect as if
they had been made on and as of the Closing Date.
4.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Company on or prior to
the Closing Date shall have been performed or complied with by the Company in
all material respects.
4.3 No Impediments. Neither the Company nor any Purchaser shall be
subject to any order, decree or injunction of a court or administrative agency
of competent jurisdiction that prohibits the transactions contemplated hereby or
would impose any material limitation on the ability of such Purchaser to
exercise full rights of ownership of the Acquired Shares. At the time of the
Closing, the purchase of the Acquired Shares to be purchased by the Purchaser
hereunder shall be legally permitted by all laws and regulations to which the
Purchaser and the Company are subject.
11
4.4 Other Agreements and Documents. Company shall have executed and
delivered the following agreements and documents:
(a) A certificate, registered in the name of the Purchaser,
representing the Acquired Shares;
(b) A certificate of good standing with respect to the Company from
the Secretary of State of Florida; and
(c) A certificate of the Company's Secretary, dated the Closing
Date, certifying (i) the fulfillment of the conditions specified in Sections 4.1
and 4.2 of this Agreement, (ii) the Board resolutions approving this Agreement
and the transactions contemplated hereby, (iii) the Company's certificate of
incorporation, and (iv) other matters as the Purchaser shall reasonably request.
4.5 Due Diligence Investigation. No fact shall have been discovered,
whether or not reflected in the Schedules hereto, which in the Purchaser's
determination would make the consummation of the transactions contemplated by
this Agreement not in the Purchaser's best interests.
ARTICLE V
CONDITIONS TO CLOSING OF THE COMPANY
The Company's obligation to sell the Acquired Shares at the Closing is
subject to the fulfillment to its satisfaction on or prior to the Closing Date
of each of the following conditions:
5.1 Representations. The representations made by the Purchaser pursuant
to Article III hereof shall be true and correct when made and shall be true and
correct on the Closing Date.
5.2 No Impediments. Neither the Company nor any Purchaser shall be
subject to any order, decree or injunction of a court or administrative agency
of competent jurisdiction that prohibits the transactions contemplated hereby or
would impose any material limitation on the ability of such Purchaser to
exercise full rights of ownership of the Acquired Shares. At the time of the
Closing, the purchase of the Acquired Shares to be purchased by the Purchaser
hereunder shall be legally permitted by all laws and regulations to which the
Purchaser and the Company are subject.
5.3 Payment of Purchase Price. The Company shall have received the
Purchase Price.
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ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by the Company. The Company agrees to defend,
indemnify and hold harmless the Purchaser and shall reimburse the Purchaser for,
from and against each claim, loss, liability, cost and expense (including
without limitation, interest, penalties, costs of preparation and investigation,
and the reasonable fees, disbursements and expenses of attorneys, accountants
and other professional advisors) (collectively, "Losses") directly or indirectly
relating to, resulting from or arising out of any untrue representation,
misrepresentation, breach of warranty or non-fulfillment of any covenant,
agreement or other obligation by or of the Company contained herein or in any
certificate, document, or instrument delivered to the Purchaser pursuant hereto.
6.2 Indemnification by the Purchaser. The Purchaser agrees to defend,
indemnify and hold harmless the Company and shall reimburse the Company for,
from and against all Losses directly or indirectly relating to, resulting from
or arising out of any untrue representation, misrepresentation, breach of
warranty or non-fulfillment of any covenant, agreement or other obligation of
the Purchaser contained herein or in any certificate, document or instrument
delivered to the Company pursuant hereto.
6.3 Procedure. The indemnified party shall promptly notify the
indemnifying party of any claim, demand, action or proceeding for which
indemnification will be sought under Sections 6.1 or 6.2 of this Agreement, and,
if such claim, demand, action or proceeding is a third party claim, demand,
action or proceeding, the indemnifying party will have the right at its expense
to assume the defense thereof using counsel reasonably acceptable to the
indemnified party. The indemnified party shall have the right to participate, at
its own expense, with respect to any such third party claim, demand, action or
proceeding. In connection with any such third party claim, demand, action or
proceeding, the Purchaser and the Company shall cooperate with each other and
provide each other with access to relevant books and records in their
possession. No such third party claim, demand, action or proceeding shall be
settled without the prior written consent of the indemnified party, which shall
not be unreasonably withheld. If a firm written offer is made to settle any such
third party claim, demand, action or proceeding and the indemnifying party
proposes to accept such settlement and the indemnified party refuses to consent
to such settlement, then: (i) the indemnifying party shall be excused from, and
the indemnified party shall be solely responsible for, all further defense of
such third party claim, demand, action or proceeding; and (ii) the maximum
liability of the indemnifying party relating to such third party claim, demand,
action or proceeding shall be the amount of the proposed settlement if the
amount thereafter recovered from the indemnified party on such third party
claim, demand, action or proceeding is greater than the amount of the proposed
settlement.
ARTICLE VII
MISCELLANEOUS
7.1 Governing Law. This Agreement and the rights of the parties
hereunder shall be governed in all respects by the laws of the State of New York
wherein the terms of this Agreement were negotiated, without regard to the
conflicts of laws thereof.
7.2 Survival. Except as specifically provided herein, the
representations and warranties made herein shall survive until the first
anniversary of the Closing Date; provided that, the covenants and agreements
herein and the representations and warranties contained in Sections 2.1, 2.2,
2.3, 2.4, 2.5, 2.6, 2.7, 2.11, and 2.28 hereof shall survive indefinitely.
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7.3 Amendment. This Agreement may not be amended, discharged or
terminated (or any provision hereof waived) without the written consent of the
Company and the Purchaser.
7.4 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding upon
and enforceable by and against, the successors, assigns, heirs, executors and
administrators of the parties hereto. The Purchaser may assign its rights
hereunder, and the Company may not assign its rights or obligations hereunder
without the consent of the Purchaser or any of its successors, assigns, heirs,
executors and administrators.
7.5 Entire Agreement. This Agreement, the Transaction Documents and the
other documents delivered pursuant hereto and simultaneously herewith constitute
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof.
7.6 Notices, etc. All notices, demands or other communications given
hereunder shall be in writing and shall be sufficiently given if delivered
either personally or by a nationally recognized courier service marked for next
business day delivery or sent in a sealed envelope by first class mail, postage
prepaid and either registered or certified, addressed as follows:
(a) if to the Company:
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx, Chief Executive Officer
(b) if to a Purchaser:
Vicis Capital Master Fund
Xxxxx 00, Xxxxx 000
000 X. 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
7.7 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of any Acquired Shares upon any breach or
default of the Company under this Agreement shall impair any such right, power
or remedy of such holder nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence, therein, or of or in any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any holder of any breach or default under this
Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement must be, made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
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7.8 Severability. The invalidity of any provision or portion of a
provision of this Agreement shall not affect the validity of any other provision
of this Agreement or the remaining portion of the applicable provision. It is
the desire and intent of the parties hereto that the provisions of this
Agreement shall be enforced to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this Agreement shall be adjudicated
to be invalid or unenforceable, such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
deletion to apply only with respect to the operation of such provision in the
particular jurisdiction in which such adjudication is made.
7.9 [Intentionally Omitted].
7.10 Consent to Jurisdiction; Waiver of Jury Trial. EACH OF THE PARTIES
TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED THE STATE AND
COUNTY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTION DOCUMENTS. EACH OF THE PARTIES TO
THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURTS AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN ANY SUCH COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY SUCH LEGAL PROCEEDING. EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY CONSENTS TO SERVICE OF PROCESS BY NOTICE IN THE
MANNER SPECIFIED IN SECTION 7.6 AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION SUCH PARTY MAY NOW OR HEREAFTER HAVE TO SERVICE
OF PROCESS IN SUCH MANNER.
7.11 Titles and Subtitles. The titles of the articles, sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
7.12 Further Assurances. The parties agree to execute and deliver all
such further documents, agreements and instruments and take such other and
further action as may be necessary or appropriate to carry out the purposes and
intent of this Agreement.
7.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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7.14 Adjustments Pursuant to Ratchet Provisions.
(a) Adjustment to Warrants. The parties agree and acknowledge that
as a result of the issuance of the Acquired Shares hereunder, the Ratchet
Provisions contained in the Warrants require the Company to adjust the exercise
price of all such Warrants to $.01 per share of Common Stock. Within 20 days
after the Closing, the Company agrees to deliver to Purchaser new warrants (the
"New Warrants") in the name of Purchaser in a form identical to the existing
Warrants with the new exercise price of $.01 per share of Common Stock. Promptly
upon receipt of the New Warrants, the Purchaser agrees to deliver to the Company
for cancellation the existing Warrants.
(b) Adjustment to the Preferred Shares and Notes. Notwithstanding
the fact that as a result of the issuance of the Acquired Shares hereunder, the
Ratchet Provisions applicable to the Preferred Shares and the Notes would
require the Company to adjust the conversion price of all such Preferred Shares
and the Notes to $.01 per share of Common Stock, the Purchaser agrees to waive,
in connection with this transaction only, its right to require the Company to
adjust such conversion prices. The parties agree that (i) the foregoing waiver
shall not be deemed to be a waiver of such right with respect to any future
transactions by the Company, (ii) that the foregoing waiver shall not preclude
the Purchaser from further enforcement of the Ratchet Provisions, and (iii) in
the event the Company breaches its representations and warranties contained in
Section 2.4(c), in addition to any other remedies available to Purchaser, (y)
the foregoing waiver shall automatically be rescinded and shall no longer be of
any force or effect and (z) the Company shall pay to the Purchaser as liquidated
damages $100,000 in cash.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Purchase Agreement, as of the day and year first above written.
COMPANY:
MEDICAL MEDIA TELEVISION, INC.
/s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
PURCHASER:
VICIS CAPITAL MASTER FUND
By: Vicis Capital LLC
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
Chief Financial Officer
