Exhibit 10.5
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of December
29, 2001 by and between Metropolitan Health Networks, Inc., a Florida
corporation (the "Company") and Xxxxxx X. Xxxxxxx (the "Purchaser").
WHEREAS, the parties desire that, upon the terms and subject to the conditions
herein, the Company shall issue and sell to the Purchaser as provided herein,
and Purchaser shall purchase 150,000 shares of Common Stock of the Company;
NOW, THEREFORE, in consideration of the foregoing premises, and the promises and
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF COMMON STOCK
Section 1.1 Purchase and Sale of Stock. Subject to the terms and conditions of
this Agreement, the Company will sell and issue to the Purchaser and the
Purchaser will purchase from the Company, 150,000 shares of Common Stock at
$1.00 per share for a total purchase price of $150,000.00 (the "Purchase
Price"), subject to the terms herein.
Section 1.2 Purchase Price and Closing. The Company agrees to issue and sell to
the Purchaser and, in consideration of and in express reliance upon the
representations, warranties, covenants, terms and conditions of this Agreement,
the Purchaser agrees to purchase 150,000 shares of Common Stock (the "Shares").
The delivery of executed documents (via fax) under this Agreement and the other
agreements referred to herein (the "Closing") shall take place the day the funds
are sent via wire transfer. Each party shall deliver all documents, instruments
and writings required to be delivered by such party pursuant to this Agreement
at or prior to the Closing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representation and Warranties of the Company. The Company hereby
makes the following representations and warranties to the Purchaser;
(a) Organization, Good Standing and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws
of Florida and has all requisite corporate authority to own, lease and
operate its properties and assets
and to carry on its business as now being conducted. The Company does
not have any subsidiaries and does not own more than fifty percent
(50%) of or control any other business entity except as set forth in
the SEC Documents. The Company is duly qualified to do business and is
in good standing as a foreign corporation in every jurisdiction in
which the nature of the business conducted or property owned by it
makes such qualification necessary, other than those in which the
failure so to qualify would not have a Material Adverse Effect.
(b) Authorization, Enforcement. (i) The Company has the requisite corporate
power and corporate authority to enter into and perform its obligations
under the Agreement and to issue the Shares pursuant to their
respective terms; (ii) the execution and delivery of the Agreement by
the Company and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary corporate action and
no further consent or authorization of the Company or its Board of
Directors or stockholders is required; and (iii) the Agreement has been
duly executed and delivered by the Company and at the Closing shall
constitute valid and binding obligation of the Company enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership
or similar laws relating to, or affecting generally the enforcement of,
creditors' rights and remedies or by other equitable principles of
general application.
(c) Capitalization. The authorized capital stock of the Company consists of
40,000,000 shares of Common Stock of which 27,142,174 share are issued
and outstanding as of the date hereof and 10,000,000 share of Series A
Preferred Stock of which 5,000 are issued and outstanding. All of the
outstanding shares of the Company's Common Stock have been duly and
validly authorized and are fully paid and non- assessable except as set
forth in the SEC Documents. No shares of Common Stock are entitled to
preemptive rights.
(d) No Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated herein do not and will not (i) violate any provision of
the Company's Charter or Bylaws; (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 agreement, mortgage,
deed of trust, indenture, note, bond, license, lease agreement
instrument or obligation to which the Company is a party; (iii) create
or impose a lien, charge or encumbrance on any property of the Company
under any agreement or any commitment to which the Company is a party
or by which the Company is bound or by which any of its respective
properties or assets are bound; or (iv) result in a violation of any
federal, state, local or other foreign statute, rule, regulation,
order,
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judgment or decree (including any federal or state securities laws and
regulations) applicable to the Company or any of it subsidiaries or by
which any property or asset of the Company or any of its subsidiaries
are bound or affected, except in all cases, for such conflicts,
defaults, termination, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a
Material Adverse Effect. The business of the Company and its
subsidiaries is not being conducted in violation of any laws,
ordinances or regulations of any governmental entity, except for
violations, which singularly or in the aggregate do not and will not
have a Material Adverse Effect. The Company is not required under any
federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or
perform any of its obligations under this Agreement, or issue and sell
the Shares in accordance with the terms hereof (other than any filings
which may be required to be made by the Company with the SEC or state
securities administrators and any registration statement which may be
filed pursuant hereto); provided, however, that for purpose of the
representations made in this sentence, the Company is assuming and
relying upon the accuracy of the relevant representations and
agreements of the Purchaser herein.
(e) SEC Documents, Financial Statements. The Company Stock of the Company
is registered pursuant to Section 12(g) of the Exchange Act, and the
Company is current with 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, including material filed
pursuant to Section 13(a) or 15(d) of the Exchange Act. As of their
respective filing dates, the SEC Documents compIied in all material
respects with the requirements of the Exchange Act or the Securities
Act, as applicable, and the rules and regulations of the SEC
promulgated thereunder applicable to such documents, and, as of their
respective filings dates, none of the SEC Documents 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 light of the circumstances under which they were
made, not misleading. The financial statements of the company included
in the SEC documents comply as to form in all material respects with
other applicable accounting requirements under GAAP and the published
rules and regulations of the SEC or other applicable rules and
regulations with respect thereto. Such financial statements have been
prepared in accordance with GAAP applied on a consistent basis 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 not include
footnotes or may be condensed or summary statements), and fairly
present in all material respects that financial position of the Company
and its subsidiaries as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
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(f) No Undisclosed Liabilities. Neither the Company nor any of its
subsidiaries has any liabilities, claims or losses (whether liquidated
or unliquidated, secured or unsecured, absolute, accrued, contingent or
otherwise) that would be required to be disclosed on a balance sheet of
the Company or any subsidiary (including the notes thereto) in
conformity with GAAP which are not disclosed in the SEC Documents,
other than those incurred in the ordinary course of the Company or its
subsidiaries' respective businesses since such date and which,
individually or in the aggregate, do not or would not have a Material
Adverse Effect on the Company or its subsidiaries.
(g) Compliance with Law. The Company and each of its subsidiaries have all
franchises, permits, licenses, consents and other governmental or
regulatory authorizations and approvals necessary for the conduct of
their respective businesses as now being conducted by them unless the
failure to possess such franchises, permits, licenses, consents and
other governmental or regulatory authorizations and approvals,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(h) Taxes. The Company and each subsidiary has filed all Tax Returns which
it is required to file under applicable laws; all such Tax Returns are
true and correct in all material respect, and have been prepared in
compliance with all applicable laws; except as set forth in the SEC
Documents the Company has paid all Taxes due and owing by it or any
subsidiary (whether or not such Taxes are required to be shown on a Tax
Return) and has withheld and paid over to the appropriate taxing
authorities all Taxes which it is required to withhold from amounts
paid or owing to any employee, stockholder, creditor or other third
parties; and since December 31, 2000, the charges, accruals and
reserves for Taxes with respect to the Company (including any
provisions for deferred income taxes) reflected on the books of the
Company are to its knowledge adequate to cover any Tax liabilities of
the Company if its current tax year were treated as ending on the date
hereof.
No claim has been made by a taxing authority in a jurisdiction, where the
Company does not file tax returns that the Company or any subsidiary is or may
be subject to taxation by the jurisdiction. Except as set forth in the SEC
Documents, there are no foreign, federal, state or local tax audits or
administrative or judicial proceedings pending or being conducted with respect
to the Company or any subsidiary; no information related to Tax matters has been
requested by any foreign, federal, state or local taxing authority; and, except
as disclosed above, no written notice indicating an intent to open an audit or
other review has been received by the Company or any subsidiary from any
foreign, federal, state or local taxing authority. Except as set forth in the
SEC Documents, there are no material unresolved questions or claims concerning
the Company's Tax liability. The Company (A) has not executed or entered into a
closing agreement pursuant to ss. 7121
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of the Internal Revenue Code or any predecessor provision thereof or any similar
provision of state, local or foreign law; and (B) has not agreed to or is
required to make any adjustments pursuant to ss. 481 (a) of the Internal Revenue
Code or any similar provision of state, local or foreign law by reason of a
change in accounting method initiated by the Company or any of its subsidiaries
or has any knowledge that the IRS has proposed any such adjustment or change in
accounting method, or has any application pending with any taxing authority
requesting permission for any changes in accounting methods that relate to the
business or operations of the Company. The Company has not been a United States
real property holding corporation within the meaning of ss. 897(c)(2) of the
Internal Revenue Code during the applicable period specified in ss.
897(c)(1)(A)(ii) of the Internal Revenue Code.
For purposes of this Section 2.1 (h):
IRS means the United States Internal Revenue Service.
Tax or Taxes means federal, state, county, local, foreign, or other income,
gross receipts, ad valorem, franchise, profits, sales or use, transfer,
registration, excise, utility, environmental, communications, real or personal
property, capital stock, license, payroll, wage or other withholding,
employment, social security, severance, stamp, occupation, alternative or add-on
minimum, estimated and other taxes of any kind whatsoever (including, without
limitation, deficiencies, penalties, additions to tax, and interest attributable
thereto) whether disputed or not.
Tax Return means any return, information report or filing with respect to Taxes,
including any schedules attached thereto and including any amendment thereof.
(i) Operation of Business. The Company and each of the subsidiaries owns or
possesses all patents, trademarks, service marks, trade names,
copyrights, licenses and authorizations as set forth in the SEC
Documents or on Schedule 2.1 (i) hereto, and all rights with respect to
the foregoing, which to its knowledge would be reasonably necessary for
the conduct of its business as now conducted without any conflict with
the rights of others.
(j) Books and Records. The records and documents of the Company and its
subsidiaries accurately reflect in all material respects the
information relating to the business of the Company and the
subsidiaries, the location and collection of their assets, and the
nature of all transactions giving rise to the obligations or accounts
receivable of the Company or any subsidiary.
(k) Securities Laws. The Company has complied and will comply with all
applicable federal and state securities laws in connection with the
offer, issuance and sale of the Shares hereunder. Neither the Company
nor anyone acting on its behalf
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directly or indirectly, has or will sell, offer to sell or solicit
offers to buy the Shares or similar securities to, or solicit offers
with respect thereto from, or enter into any preliminary conversations
or negotiations relating thereto with, any person (other than the
Purchaser), so as to bring the issuance and sale of the Shares under
the registration provisions of the Securities Act and applicable state
securities laws. 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 Shares.
Section 2.2 Representations and Warranties of the Purchaser. The Purchaser
hereby makes the following representations and warranties to the Company:
(a) Authorization and Power. The Purchaser has the requisite power and
authority to enter into and perform the Agreement and to purchase the
Shares being sold to it hereunder. The execution, delivery and
performance of the Agreement by Purchaser and the consummation by it of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action and at the Closing shall constitute valid
and binding obligations of the Purchaser enforceable against the
Purchaser in accordance with their terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation, conservatorship, receivership or similar laws
relating to, or affecting generally the enforcement of creditors'
rights and remedies or by other equitable principles of general
application.
(b) No Conflicts. The execution, delivery and performance of this Agreement
and the consummation by the Purchaser of the transactions contemplated
hereby or relating hereto do not and will not give to others any rights
of termination, amendment, acceleration or cancellation of any
agreement, indenture or instrument to which the Purchaser is a party,
or result in a violation of any law, rule, or regulation, or any order,
judgment or decree of any court or governmental agency applicable to
the Purchaser or its properties (except for such conflicts, defaults
and violations as would not, individually or in the aggregate, have a
Material Adverse Effect on Purchaser). The Purchaser is not required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court of governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement
or to purchase the Shares in accordance with the terms hereof.
(c) Financial Risks. The Purchaser acknowledges that it is able to bear the
financial risks associated with an investment in the Shares and that it
has been given full access to such records of the Company and the
subsidiaries and to the officers of the Company and the subsidiaries as
it has deemed necessary or appropriate to conduct its due diligence
investigation. The Purchaser is capable of evaluating the
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risks and merits of an investment in the Shares by virtue of its
experience as an investor and its knowledge, experience, and
sophistication in financial and business matters and the Purchaser is
capable of bearing the entire loss of its investment in the Shares.
(d) Accredited Investor. The Purchaser is an accredited investor as defined
in Regulation D promulgated under the Securities Act.
(e) General. The Purchaser understands that the Company is relying upon the
truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of the Purchaser set forth herein in
order to determine the suitability of the Purchaser to acquire the
Shares.
ARTICLE 3
COVENANTS
Section 3.1 Registration.
(a) Piggy-Back Registrations. If at any time prior to Registration of the
Common Stock, the Company shall determine to file with the SEC a
Registration Statement relating to an offering for its own account or
the account of others under the Securities Act of any of its equity
securities (other than on Form S-4 or Form S-8 or their then
equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or entity
securities issuable in connection with stock option or other employee
benefit plans), the Company shall send to Purchaser notice of such
determination and, if within fifteen (15) days after the effective date
of such notice, Purchaser shall so request in writing, the Company
shall include in such Registration Statement. If an offering in
connection with which a Purchaser is entitled to registration under
this Section 3.1 is an underwritten offering, then Purchaser shall,
unless otherwise agreed by the Company, offer and sell the shares in an
underwritten offering using the same underwriter or underwriters and on
the same terms and conditions as other shares of Common Stock included
in such underwritten offering.
(b) Effectiveness. The Company will file a registration statement within 90
days of the Closing to become effective within 180 days of the purchase
of the Common Stock. If the Company fails to register the Common Stock
within 180 days, a penalty of 5% per month will be assessed. The
penalty is to be 5% of the Investment (150,000 shares) equal to 7,500
shares will be issued for additional considerations if such penalty
occurs. The Company will maintain an effective registration statement
effective under the Securities Act without restrictions or lockups
until the earliest of (i) the date all the shares of Common Stock have
been sold under the registration statement; (ii) the date that all of
the shares of Common Stock have been otherwise
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transferred to persons who may trade such shares without restriction
under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such shares not bearing
a restrictive legend; and (iii) the date that all of the shares of
Common Stock may be sold without any time, volume or manner of
limitations pursuant to Rule 144(k) or similar provision then in effect
under the Securities Act in the opinion of counsel of the Company. The
Company will prepare and pay for necessary documents and filing to
maintain an effective registration statement and for purchasers counsel
to review registration statement prior to filing.
ARTICLE 4
CONDITIONS TO CLOSING
Section 4.1. Conditions Precedent to the Obligation of the Company to Sell the
Shares. The obligation hereunder of the Company to proceed to close this
Agreement and to issue and sell the Shares to the Purchaser is subject to the
satisfaction or waiver, at or before the Closing, of each of the conditions set
forth below. These conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion.
(a) Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser shall be true and
correct in all material respects as of the date when made and as of the
Closing as though made at that time, except for representations and
warranties that speak as of a particular date.
(b) Performance by the Purchaser. The Purchaser shall have performed,
satisfied and complied in all material respects with all material
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Purchaser at or prior to
the Closing.
(c) No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the
transactions contemplated by this Agreement.
Section 4.2 Conditions Precedent to the Obligation of the Purchaser to Close.
The obligation hereunder of the Purchaser to perform its obligations under this
Agreement and to purchase the Shares is subject to the satisfaction or waiver,
at or before the Closing, of each of the conditions set forth below. These
conditions are for the Purchaser's sole benefit and may be waived by the
Purchaser at any time in its sole discretion.
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(a) Accuracy of the Company's Representations and Warranties. Each of the
representations and warranties of the Company shall be true and correct
in all material respects as of the date when made and as of the closing
as though made at that time (except for representations and warranties
that speak as of a particular date).
(b) Performance by the Company. The Company shall have performed, satisfied
and complied in all respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or
complied with by the Company at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the
transactions contemplated by this Agreement.
ARTICLE 5
INDEMNIFICATION
Section 5.1 General Indemnity.
(a) The Company agrees to indemnify and hold harmless the Purchaser and
each person, if any, who controls the Purchaser within the meaning of
the Securities Act (Distributing Purchaser) against any losses, claims,
damages or liabilities, joint or several (which shall, for all purposes
of this Agreement, include, but not be limited to, all reasonable costs
of defense and investigation and all reasonable attorneys' fees), to
which the Distributing Purchaser may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, or any related
preliminary prospectus, the Prospectus or amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the
circumstances when made not misleading; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, preliminary prospectus,
the Prospectus or amendment or supplement thereto in reliance upon, and
in conformity with, written information furnished to the Company by the
Distributing Purchaser specifically for use in the preparation thereof.
This Section 5(a) shall not inure to the benefit of any
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Distributing Purchaser with respect to any person asserting such loss,
claim, damage or liability who purchased the Registrable Securities
which are the subject thereof if the Distributing Purchaser failed to
send or give a copy of the Prospectus to such person at or prior to the
written confirmation to such person of the sale of such Registrable
Securities, where the Distributing Purchaser was obligated to do so
under the Securities Act or the rules and regulations promulgated
thereunder. This indemnity agreement will be in addition to any
liability the Company may otherwise have.
(b) Each Distributing Purchaser agrees that it will indemnify and hold
harmless the company, and each officer, director of the Company or
person, if any, who controls the company within the meaning of the
Securities Act, against any losses, claims, damages or liabilities
(which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all
reasonable attorney fees) to which the company or any such officer,
director or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, or any related
preliminary prospectus, the Prospectus or amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each
case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, preliminary prospectus, the Prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by such Distributing Purchaser
specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability, which the Distributing
Purchaser may otherwise have. Notwithstanding anything to the contrary
herein, the Distributing Purchaser shall not be liable under this
Section 5(b) for any amount in excess of the net proceeds to such
Distributing Purchaser as a result of the sale of registrable
securities pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof, but the omission to notify the indemnifying party
will not relieve the indemnified party from any liability which it may
have to any indemnified party except to the extent of actual material
prejudice demonstrated by the indemnified party. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof the indemnifying party
will be entitled to participate in, and to the extent that
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it may wish, jointly with any other indemnified party similarly
notified, assume the defense thereof subject to the provisions herein
stated and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section 5 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than reasonable costs of investigation, unless the indemnifying party
shall not pursue the action to its final conclusion. The indemnified
party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and
expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of
the action with counsel reasonably satisfactory to the indemnified
party; provided that if the indemnified party is the Distributing
Purchaser, the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel
has been specifically authorized in writing by the indemnifying party,
or (ii) the named parties to any such action (including any impleaded
parties) include both the Distributing Purchaser and the indemnifying
party and the Distributing Purchaser shall have been advised by such
counsel in writing that there may be one or more legal defenses
available to the Distributing Purchaser (in which case the indemnifying
party shall not have the right to assume the defense of such action on
behalf of the Distributing Purchaser, it being understood, however,
that the indemnifying party shall, in connection with any one such
action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of
one separate firm of attorneys for the Distributing Purchaser, which
firm shall be designated in writing by the Distributing Purchaser and
be approved by the indemnifying party). No settlement of any action
against an indemnified party shall be made without the prior written
consent of the indemnified party, which consent shall not be
unreasonably withheld.
All fees and expenses of the indemnified party (including reasonable costs of
defense and investigation in a manner not inconsistent with this Section and all
reasonable attorneys' fees and expenses) shall be promptly paid to the
indemnified party, as incurred; provided, that the indemnifying party may
require such indemnified party to undertake to reimburse all such fees and
expenses to the extent it is finally judicially determined that such indemnified
party is not entitled to indemnification hereunder.
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ARTICLE 6
MISCELLANEOUS
Section 6.1. Fees and Expenses. Each of the parties to this Agreement shall pay
its own fees and expenses related to the transactions contemplated by this
Agreement.
Section 6.2 Entire Agreement; Amendment. This Agreement contains the entire
understanding of the parties with respect to the matters covered herein. No
provision of this Agreement may be waived or amended other than by a written
instrument signed by the party against whom enforcement of any such amendment or
waiver is sought.
Section 6.3 Notices. Any notice, demand, request, waiver or other communication
required or permitted to be given hereunder shall be in writing and shall be
effective (a) upon hand delivery or facsimile at the address or number
designated below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business hours
where such notice is to be received); or (b) on the second business day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be:
If to the Company: 000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Purchaser: Xxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx Xxxx Xx. Xxxx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Any party hereto may from time to time change its address for notices by giving
written notice of such changed address to the other party hereto in accordance
herewith.
Section 6.4 Waiver. No waiver by either party of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provisions, condition
or requirement hereof,
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nor shall any delay or omission of any party to exercise any right hereunder in
any manner impair the exercise of any such right accruing to it thereafter.
Section 6.5 Headings. The article, section and subsection headings in this
Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 6.6 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. The
parties hereto may not amend this Agreement or any rights or obligations
hereunder without the prior written consent of the Company and the Purchaser.
Section 6.7 No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
Section 6.8 Governing Law/Arbitration. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida, without
giving effect to the choice of law provisions.
Section 6.9 Counterparts. This Agreement may be executed in any number of
counterparts, all of which have taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other.
Section 6.10 Publicity. Neither the Company nor the Purchaser shalI issue any
press release or otherwise make any public statement or announcement with
request to this Agreement until the closing. After the closing, the Company may
issue a press release, or otherwise make a public statement or announcement with
respect to this agreement and/or transaction.
Section 6.11 Further Assurances. From and after the date of this Agreement, upon
the request of the Purchaser or the Company, each of the Company and/or the
Purchaser shall execute and deliver such instruments, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purpose of this agreement.
Section 6.12 Effectiveness of Agreement. This Agreement shall become effective
only upon satisfaction of the conditions precedent to the Closing.
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DEFINITIONS
Section 7.1 Certain Definitions.
(a) Common Stock shall mean the Company's common stock, $0.001 par value
per share.
(b) Exchange Act shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(c) GAAP shall mean the United States Generally Accepted Accounting
Principles as those conventions, rules and procedures are determined by
the Financial Accounting Standards Board and its predecessor agencies.
(d) Material Adverse Effect shall mean any adverse effect on the business,
operations, properties, or financial condition of the Company that is
material and adverse to the Company and its subsidiaries and
affiliates, taken as a whole and/or any condition, circumstance, or
situation that would prohibit or otherwise materially interfere with
the ability of the Company to perform any of its material obligations
under this Agreement or to perform its obligations under any other
agreement which would be required to be filed with the SEC as an
exhibit to a Registration Statement on Form S-1 or other applicable
form.
(e) SEC shall mean the Securities and Exchange Commission.
(f) SEC Documents shall mean the Company's latest Form 10-KSB as of the
time in question, all Forms 10-QSB and 8-K filed thereafter, and the
Proxy Statement for its latest fiscal year as of the time in question.
(g) Securities Act shall mean the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
IT WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officer as of this 29th day of December
2001.
/s/ XXXX XXXXXXXXX /s/ XXXXXX X. XXXXXXX
------------------------------------- ----------------------------------
METROPOLITAN HEALTH NETWORKS, INC. Xxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxx, President
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