Exhibit 10.1
CONVERTIBLE PROMISSORY NOTE
PURCHASE AGREEMENT
This Convertible Promissory Note
Purchase Agreement (this “Agreement”) is made as of
November 28, 2006, by and among Medical Solutions Management
Inc., a Nevada corporation (the “Company”), and the
investors listed on Schedule 1 (collectively the
“Investors” and each individually, an
“Investor”).
RECITAL
The Investors desire to purchase
from the Company, and the Company desires to issue to the
Investors, Convertible Promissory Notes in the form of Exhibit
A attached hereto (each, a “Note” and collectively,
the “Notes”), in the aggregate principal amount of up
to One Million Dollars ($1,000,000), pursuant to the terms and
conditions of this Agreement. The Notes and the Company’s
securities issuable upon conversion of the Notes (the “New
Equity Shares”) are collectively referred to herein as the
“Securities.”
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth herein and for good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and the Investors hereby agree as
follows:
1. Amount And Terms of the
Notes .
1.1. Promissory Notes . Each
Investor will lend to the Company the amount set forth opposite its
name on Schedule 1 attached hereto (such Investor’s
“Loan Amount”) in exchange for the issuance by the
Company of a Note in the principal amount set forth opposite the
name of such Investor on such Schedule 1 (such
Investor’s “Note Amount”). The obligation of each
Investor to lend its Loan Amount pursuant to the terms of this
Agreement shall be several and not joint.
1.2. Closings . The initial
closing of the purchase and sale of the Notes shall take place on
the date hereof at the offices of Bingham McCutchen LLP, Boston,
Massachusetts 02110, at 10:00 a.m., Boston time, or at such
other date, time and place as the Company and the Investors
acquiring at least a majority of the aggregate principal amount of
the Notes to be so purchased and sold shall mutually agree in
writing (which time and place are referred to herein as the
“Initial Closing”). At the Initial Closing, the Company
shall deliver to each Investor purchasing a Note at the Initial
Closing a Note for such Investor’s Note Amount, against
payment by such Investor of such Investor’s Loan Amount by
wire transfer or check.
The Company may, at one or more
additional closings (each, an “Additional Closing” and
together with the Initial Closing, each, a “Closing”)
on or prior to December 31, 2006 (or such other date as the
Company and the Investors holding at least a majority of the
aggregate principal amount of the then outstanding Notes shall
mutually agree), issue and sell all or any portion of the Notes not
sold at the Initial Closing (the “Additional Notes”) to
one or more persons or entities that become or an Investor party
hereto by executing and delivering to the Company an Instrument of
Accession in the form of Schedule 2 attached hereto
(collectively,
the “Additional Investors”). The
issuance and sale of any Additional Note to any Additional Investor
pursuant to this Section 1.2 may be effected and consummated
without obtaining the signature, consent or permission of any of
the other Investors. The Additional Investors may include any
existing Investor. If the Company countersigns such Instrument of
Accession and delivers such countersigned Instrument of Accession
to such Additional Investor, then such Additional Investor at that
time shall become an Investor party to this Agreement, shall become
entitled to all of the benefits that inure or apply to Investors
under this Agreement, shall become bound by all of the terms,
provisions, restrictions and limitations that apply to Investors
generally under this Agreement, shall be treated as an Investor for
all purposes of this Agreement, the Additional Note sold to such
Investor shall be deemed a Note for all purposes of this Agreement,
and Schedule 1 attached hereto shall be amended and
supplemented to include such Additional Investor and such
Additional Investor’s Note Amount. Any such Instrument of
Accession executed by such Additional Investor and the Company
shall thereupon become a part of this Agreement. The Company may
require, as a condition precedent to its execution and delivery of
any Instrument of Accession and its obligation to consummate any
Additional Closing pursuant to this Section 1.2, that the
Additional Investor who executed and delivered such Instrument of
Accession to the Company and who wishes to purchase an Additional
Note at such Additional Closing also execute and deliver to the
Company instruments or certificates pursuant to which such
Additional Investor shall make such additional representations and
warranties (in addition to those to be made and made by such
Additional Investor by virtue of becoming an Investor party to this
Agreement), and satisfy such conditions to closing, as the Company
may reasonably request.
At any Additional Closing, the
Company shall deliver to each Additional Investor purchasing an
Additional Note at such Additional Closing a Note for such
Additional Investor’s Note Amount, against payment by such
Additional Investor of such Additional Investor’s Loan Amount
by wire transfer or check. Each Additional Closing, if any, shall
occur on such date and at such time as the Company and those
Additional Investors who are purchasing Additional Notes at such
Additional Closing shall mutually agree. Each Additional Closing
shall take place by facsimile transmission of executed copies of
the documents contemplated hereby to the offices of Bingham
McCutchen LLP, Boston, Massachusetts 02110, Attention: Andrew B.
White, Esq., Facsimile: (617) 951-8736.
1.3. Condition to Closing .
The obligations of the Investors hereunder to purchase the Notes at
any Closing are subject to the fulfillment or waiver, on or before
the date of such Closing, of the following condition:
(a) Each of the representations and
warranties of the Company contained herein shall be true and
correct on and as of the date of such Closing.
1.4. Conversion of the Notes
. The Notes may be converted into New Equity Shares pursuant to the
terms and conditions set forth in the Notes.
2. Representations and Warranties
of the Company . The Company hereby represents and warrants to
the Investors as follows:
2.1. Organization, Good Standing
and Qualification . The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of
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Nevada and has all requisite corporate power and
authority to own and use its properties and assets and to carry on
its business as now conducted and as proposed to be conducted, and
is qualified to do business in all jurisdictions wherein the nature
of its operations require it to be so qualified, except where the
failure to be so qualified would not reasonably be expected to have
a material adverse effect on the Company’s properties,
assets, business, financial condition or results of
operations.
2.2. Authorization . All
appropriate corporate action on the part of the Company necessary
for the authorization, execution and delivery of this Agreement and
the authorization, sale, issuance and delivery of the Securities,
and the performance of all obligations of the Company hereunder and
thereunder, has been taken (or, in the case of the New Equity
Shares, will be taken prior to the issuance thereof). This
Agreement and the Notes, when executed and delivered by the
Company, shall constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with
their respective terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and
other laws of general application affecting enforcement of
creditors’ rights generally, and by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies. The Securities, when issued and paid for in
accordance with the terms hereof, shall be validly issued, fully
paid and nonassessable, and shall be free of any liens or
encumbrances other than those imposed by the holder thereof;
provided , however , that the Securities may be
subject to restrictions on transfer under state and/or federal
securities laws as set forth herein or as otherwise required by
such laws at the time a transfer is proposed or under agreements
entered into by the holders thereof.
2.3. Corporate Power . The
Company has the corporate power and authority to execute and
deliver this Agreement and the Notes, to issue the Notes and to
carry out and perform its obligations under this Agreement and the
Notes.
2.4. No Conflict with Law or
Other Instruments . The business and operations of the Company
have been and are being conducted in accordance with all applicable
laws, rules and regulations of all governmental authorities, except
where the failure to so comply would not reasonably be expected to
have a material adverse effect on the Company’s properties,
assets, business, financial condition or results of operations. The
execution, delivery and performance of this Agreement and the Notes
will not result in any violation of, be in conflict with, or
constitute a default under, with or without the passage of time or
the giving of notice: (a) any provision of the Company’s
Articles of Incorporation or Bylaws (each as amended and in effect
on the date hereof); (b) any provision of any judgment, decree
or order to which the Company is a party or by which it is bound;
(c) any material contract, obligation or commitment to which
the Company is a party or by which it is bound (except for that
certain Amended and Restated Investor Rights Agreement, dated as of
June 28, 2006, by and among the Company and the other parties
thereto, for which the Company has obtained a waiver in accordance
with the terms thereof); or (d) any material statute, rule or
governmental regulation applicable to the Company.
2.5. Finder’s Fee . The
Company is not nor will it be obligated for any finder’s fee
or commission in connection with the transactions contemplated
hereby. The Company agrees to indemnify and hold harmless the
Investors from any liability for any commission or compensation in
the nature of a finder’s fee (and the costs and expenses of
defending against such liability or asserted liability) for which
the Company or any of its officers, employees or representatives is
responsible.
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2.6. Financial Information; SEC
Documents . Since December 31, 2005, the Company has filed
all reports, schedules, forms, statements and other documents (the
“SEC 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”). As of their
respective dates, the SEC Documents filed since December 31,
2005 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 (a) as may be otherwise indicated in such
financial statements or the notes thereto, or (b) 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).
2.7. Disclosure . The Company
confirms that neither it nor any other person or entity acting on
its behalf has provided any Investor 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 Investors will rely on the
foregoing representations in effecting the transactions
contemplated hereby. All disclosure provided to the Investors
regarding the Company, its business and the transactions
contemplated hereby 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.
3. Representations and Warranties
of the Investors . Each Investor hereby represents and warrants
to and for the benefit of the Company, with knowledge that the
Company is relying thereon in entering into this Agreement and
issuing the Note to such Investor, as follows:
3.1. Authorization . All
appropriate action on the part of such Investor, if an entity, for
the authorization, execution and delivery of this Agreement, and
the performance of all obligations hereunder, has been taken. This
Agreement, when executed and delivered by such Investor, shall
constitute valid and legally binding obligations of it, enforceable
against it in accordance with its terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application
affecting enforcement of creditors’ rights generally, and by
laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
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3.2. Purchase Entirely for Own
Account . Such Investor (a) hereby confirms that the
Securities to be purchased by it shall be acquired for investment
for such Investor’s own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part
thereof, and that such Investor has no present intention of
selling, granting any participation in, or otherwise distributing
the same, (b) further represents that such Investor does not
have any contract, undertaking, agreement or arrangement with any
person or entity to sell, transfer or grant participation to such
person or entity or to any other person or entity, with respect to
any of the Securities, and (c) represents that such Investor
has full power and authority to enter into this
Agreement.
3.3. Investment Experience .
Such Investor has such knowledge and experience in financial and
business matters as is required for evaluating the merits and risks
of purchasing the Securities, and such Investor has received such
information requested by it concerning the business, management and
financial affairs of the Company in order to evaluat
