EXHIBIT 10.4
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is made and entered
into effective as of April 2, 2009 (the "EFFECTIVE DATE") by and between
Integrated Healthcare Holdings, Inc., a Nevada corporation (the "COMPANY"), and
Orange County Physicians Investment Network, LLC (the "INVESTOR").
WHEREAS, each of the parties hereto are also party to that certain
Settlement Agreement, General Release and Covenant Not to Xxx of even date
herewith (the "SETTLEMENT AGREEMENT") by and among the Company, Xx. Xxxx X.
Xxxx, Orange County Physicians Investment Network, LLC ("OC-PIN"), Xxxxx Xxxxx,
Pacific Coast Holdings Investment, LLC, West Coast Holdings, LLC, Xx. Xxxx X.
Xxxxxxxxx, Ganesha Realty, LLC, Xxxxxxx X. Xxxxxx, and Medical Capital
Corporation, on behalf of itself and three of its wholly owned subsidiaries,
Medical Provider Financial Corporation I, Medical Provider Financial Corporation
II and Medical Provider Financial Corporation III.
WHEREAS, in connection with the execution of the Settlement Agreement,
the parties desire to enter into this Agreement as set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and Investor agree as
follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms shall have
the meanings indicated in this Section 1.1:
"AFFILIATE" means any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under Rule
144.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, par
value $0.001 per share.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"LIEN" means any lien, charge, encumbrance, security interest,
right of first refusal or other restrictions of any kind.
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"MATERIAL ADVERSE EFFECT" means any of (i) a material and
adverse effect on the legality, validity or enforceability of this Agreement,
(ii) a material and adverse effect on the results of operations, assets,
prospects, business or condition (financial or otherwise) of the Company, taken
as a whole, or (iii) an adverse impairment to the Company's ability to perform
on a timely basis its obligations under this Agreement.
"PERSON" means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision
thereof) or other entity of any kind.
"REQUIRED APPROVALS" has the meaning set forth in Section
3.1(d).
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SEC REPORTS" means all reports required to be filed by the
Company under the Securities Act and the Exchange Act, including pursuant to
Sections 13(a) or 15(d) thereof, and the rules and regulations adopted by the
Commission thereunder.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means the shares of Common Stock purchased by the
Investor pursuant to this Agreement.
ARTICLE II.
ISSUANCE OF COMMON STOCK
2.1 PURCHASE AND SALE; CLOSING.
(a) Subject to and upon the terms and conditions set forth
herein, at the Closing the Company shall issue and deliver to the Investor, and
the Investor shall acquire and receive from the Company, an aggregate of
14,700,000 shares of Common Stock (the "SHARES") "), subject to possible
adjustment pursuant to Section 10 of the Settlement Agreement, for a purchase
price of Three Cents ($0.03) per share. At the Closing, the Investor shall pay
to the Company the aggregate purchase price for the Shares by bank check or wire
transfer of immediately available funds, the credit described in Section 10 of
the Settlement Agreement, or such other payment mechanism as the parties may
mutually agree prior to the Closing, or any combination thereof. The Closing
shall be held at the offices of Xxxx Xxxxx LLP, 000 Xxxxx Xxxxx Xxx., Xxxxx
0000, Xxx Xxxxxxx XX 00000.
(b) The purchase and sale of the Shares hereunder (the
"CLOSING") shall be held on the day that is forty-five (45) days after the
Effective Date (or if such day is not a business day, then the next following
business day) (the "CLOSING DATE"); PROVIDED, HOWEVER, that if on the Closing
Date the Company does not have sufficient authorized and unreserved shares of
Common Stock to issue all of the Shares being purchased by the Investor as well
as the other shares required to be issued pursuant to the Settlement Agreement
(aggregating 60,000,000 shares in all), then the Closing Date shall be postponed
to the first business day on which the Company has a sufficient number of
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authorized and unreserved shares to issue all of the Shares being purchased by
the Investor hereunder and the other shares required to be issued pursuant to
the Settlement Agreement. Failure of the Investor to deliver payment for the
Shares shall relieve the Company from its obligation to issue and deliver the
shares to the Investor, and the Company shall not be entitled to any other
damages or relief resulting from the failure of the Investor to purchase the
Shares. The failure of the Investor to purchase the Shares shall not constitute
a default under the Settlement Agreement or the Second Settlement Agreement.
(c) At the Closing, the Company shall deliver to the Investor
a stock certificate registered in the name of the Investor and evidencing the
Shares, or irrevocable instructions to the Company's transfer agent to promptly
deliver such a certificate to the Investor. The Shares shall be issued free and
clear of any Liens, except for (i) restrictions on transfer imposed under
Federal and state securities laws, (ii) any designations, rights, preferences
and powers set forth in the Company's Articles of Incorporation, and (iii) any
legends required to be imprinted on the certificates evidencing the Shares under
Section 4.2.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
makes the following representations and warranties to Investor:
(a) ORGANIZATION AND QUALIFICATION. The Company is duly
organized, validly existing and in good standing under the laws of the State of
Nevada, with the requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. The Company is not
in violation of any of the provisions of its Articles of Incorporation, bylaws
or other organizational or charter documents. The Company is duly qualified to
conduct its business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect.
(b) AUTHORIZATION; ENFORCEMENT. Subject to the proposed
increase in the Company's authorized shares of common stock as described in
Section 12 of the Settlement Agreement (the "AUTHORIZED CAPITAL INCREASE"), the
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations thereunder. Except for the Required Approvals, the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company in connection therewith. This Agreement has been (or upon delivery
will have been) duly executed by the Company and, when delivered in accordance
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with the terms hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(c) NO CONFLICTS. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) conflict with or
violate any provision of the Company's Articles of Incorporation and bylaws, or
(ii) conflict with, or constitute a default (or an event that 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 (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected, or (iii) subject to the filings contemplated by Section
3.1(d), result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company is subject (including Federal and state securities laws and
regulations), or by which any property or asset of the Company is bound or
affected; except in the case of each of clauses (ii) and (iii), such as could
not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect.
(d) FILINGS, CONSENTS AND APPROVALS. The Company is not
required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other Federal,
state, local or other governmental authority or other Person in connection with
the execution, delivery and performance by the Company of this Agreement, other
than (i) filings required by state securities laws, (ii) the filing of a Notice
of Sale of Securities on Form D with the Commission under Regulation D of the
Securities Act, and (iii) those that have been made or obtained prior to the
date of this Agreement (collectively, the "REQUIRED APPROVALS").
(e) ISSUANCE OF THE SHARES. Upon consummation of the
Authorized Capital Increase, the Shares will be duly authorized and, when issued
and paid for in accordance with this Agreement, duly and validly issued, fully
paid and nonassessable, free and clear of all Liens other than restrictions on
transfer provided for in this Agreement. The Company has reserved from its duly
authorized capital stock, subject to consummation of the Authorized Capital
Increase, the shares of Common Stock issuable pursuant to this Agreement.
(f) CAPITALIZATION. The number of shares and type of all
authorized, issued and outstanding capital stock of the Company, and all shares
of Common Stock reserved for issuance under the Company's various option and
incentive plans, is specified in the SEC Reports.
3.2 REPRESENTATIONS AND WARRANTIES OF INVESTOR. Investor hereby
represents to the Company as follows:
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(a) INVESTMENT INTENT. Investor is acquiring the Shares as
principal for its own account and not with a view to or for distributing or
reselling such Shares or any part thereof, without prejudice, however, to
Investor's right to sell or otherwise dispose of all or any part of such Shares
in compliance with applicable federal and state securities laws. Investor is
acquiring the Shares hereunder in the ordinary course of its business. Investor
does not have any agreement or understanding, directly or indirectly, with any
Person to distribute any of the Shares.
(b) INVESTOR STATUS. At the time Investor was offered the
Shares, it was, and at the date hereof it is, an "accredited investor" as
defined in Rule 501(a) under the Securities Act. Investor is not a registered
broker-dealer under Section 15 of the Exchange Act.
(c) GENERAL SOLICITATION. Investor is not purchasing the
Shares as a result of any advertisement, article, notice or other communication
regarding the Shares published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
(d) ACCESS TO INFORMATION. Investor acknowledges that it has
reviewed the SEC Reports and has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Shares and the merits and risks of investing in the Shares; (ii)
access to information about the Company and its financial condition, results of
operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment. Neither such inquiries nor any other
investigation conducted by or on behalf of Investor or its representatives or
counsel shall modify, amend or affect Investor's right to rely on the truth,
accuracy and completeness of the SEC Reports and the Company's representations
and warranties contained in this Agreement.
(e) INDEPENDENT INVESTMENT DECISION. Investor has
independently evaluated the merits of its decision to purchase Shares pursuant
to this Agreement, and has not relied on the advice of any other Person or the
Company in making such decision.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 The Shares may only be disposed of in compliance with state and
federal securities laws. In connection with any transfer of the Shares to the
Company or to an Affiliate of Investor, the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Shares under the Securities Act.
4.2 Certificates evidencing the Shares will contain the following
legends, until such time as the Shares are eligible for sale without restriction
under Rule 144 or state securities laws:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A SHAREHOLDERS AGREEMENT DATED AS OF
APRIL 2, 2009 WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING
OF THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY
INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL
BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A COPY
OF SUCH SHAREHOLDERS AGREEMENT WILL BE FURNISHED TO THE RECORD
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST
TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
ARTICLE V.
MISCELLANEOUS
5.1 GOVERNING LAW; VENUE. This Agreement shall be construed in
accordance with and governed by the laws of the State of Nevada without
reference to conflicts of law principles. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of California and of the United States of America, in
each case located in the County of Orange, for any lawsuit, action or proceeding
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any lawsuit, action or proceeding relating
thereto except in such courts), Each of the parties hereto hereby irrevocably
and unconditionally waives any objection to the laying of venue of any lawsuit,
action or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of California or the United
States of America, in each case located in the County of Orange, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such lawsuit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
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5.2 WAIVER. The failure of either party at any time or times to require
performance of any provision hereof shall in no manner affect its rights at a
later time to enforce the same. No waiver by either party of any condition or
term in any one or more instances shall be construed as a further or continuing
waiver of such condition or term or of another condition or term.
5.3 ENTIRE AGREEMENT. This Agreement and the Settlement Agreement
constitute the entire agreement between the parties relating to the subject
matter hereof and supersede all previous writings and understandings. No
modifications or waiver of any terms or conditions hereof shall be effective
unless made in writing and signed by a party (if an individual) or a duly
authorized officer of the party against which enforcement is sought.
5.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns.
5.5 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto, or
their respective permitted successors and assigns, any benefits, rights or
remedies.
5.6 HEADINGS. The headings contained in this Agreement have been added
for convenience and shall not be construed as limiting.
5.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Execution of a facsimile
copy shall have the same force and effect as execution of an original, and a
facsimile signature shall be deemed an original and valid signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
COMPANY:
INTEGRATED HEALTHCARE HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxx
Title: President & CEO
INVESTOR:
ORANGE COUNTY PHYSICIANS INVESTMENT NETWORK, LLC
By: /s/ XXXX X. XXXXXXXXXXX, M.D.
---------------------------------------
Print Name: Xxxx X. Xxxxxxxxxxx, M.D.
Title: Co-Manager
By: /s/ XXXX X. XXXX, M.D.
---------------------------------------
Print Name: Xxxx X. Xxxx, M.D.
Title: Co-Manager
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