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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 evaluate the merits and risks of
purchasing the Securities. The purchase of the Securities involves
risks which such Investor has evaluated, and such Investor is able
to bear the economic risk of the purchase of such Securities and
the loss of its entire investment. Such Investor is able to bear
the economic risk of the investment for an indefinite period of
time, has no need for liquidity in such investment and can afford a
complete loss of such investment. Such Investor’s overall
commitment to investments that are not readily marketable is
not
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