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MEDICAL MEDIA TELEVISION, INC.
$250,000 10% SECURED CONVERTIBLE PROMISSORY NOTE DUE
AUGUST 11, 2007
NOTE PURCHASE AGREEMENT
By and Between
MEDICAL MEDIA TELEVISION, INC.
and
VICIS CAPITAL MASTER FUND
DATED FEBRUARY 1, 2007
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<PAGE>
NOTE PURCHASE AGREEMENT
This NOTE
PURCHASE AGREEMENT (the "Agreement"), dated this 1st day of
February, 2007, is made by and between MEDICAL MEDIA TELEVISION,
INC., a Florida
corporation (the "Company"), and VICIS CAPITAL MASTER FUND (the
"Purchaser"), a
trust formed under the laws of the Cayman Islands.
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, a 10% Secured Convertible Promissory Note due August
11, 2007 in the principal amount of $250,000 and in the form
attached hereto as
Exhibit A (the "Note").
WHEREAS,
as an inducement for the Purchaser's acquisition of the Note,
the
Company has agreed to
register with the SEC for resale by the
Purchaser the
shares of Common Stock issuable upon conversion of the Note (the "Note
Shares")
pursuant to a
registration rights
agreement,
in the form attached
hereto as
Exhibit B (the "Registration Rights Agreement").
NOW, THEREFORE,
the Company and the Purchaser hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE NOTE
1.1
Purchase and Sale of the Note. 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 Note for $250,000 (the "Purchase
Price").
1.2
Closing. The Closing shall be deemed to occur at the
offices of
Quarles & Brady,
LLP, 411 East Wisconsin Avenue, Milwaukee, Wisconsin at 5:00
p.m. CDT on February
1, 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 following actions shall be taken:
(a) The Company will
deliver to the
Purchaser the Note dated the
Closing Date, in the principal amount of $250,000.
(b) The Purchaser shall deliver to the Company the Purchase Price
in
immediately available funds to the Company.
<PAGE>
ARTICLE II
SECURITY DOCUMENTS
2.1
Company Security Documents.
(a) Security Agreement. All of the obligations of the
Company under
the Note shall be secured by a lien on all the personal property and assets of
the Company now existing or hereinafter acquired granted pursuant to a
security
agreement dated
of even date herewith between the Company and Purchaser
("Security
Agreement"), which,
except for Permitted Liens (as hereinafter
defined), shall be a first lien.
(b) Stock Pledge Agreement. To secure the obligations of the
Company
under this Agreement
and the Note, the Company shall pledge, hypothecate, and
assign, to the Purchaser all the capital stock of its Subsidiaries
(the "Pledged
Shares"), pursuant to
a stock pledge agreement ("Stock Pledge Agreement"). The
Pledged Shares were previously transferred and delivered to
Quarles & Brady LLP
(the "Escrow
Agent") pursuant to the terms of that
certain Stock Pledge and
Escrow Agreement, dated August 11, 2006.
2.2
Guaranty. All of the
obligations of the
Company under the Note shall
be guaranteed
pursuant to a guaranty agreement by each of the Company's
Subsidiaries set forth in Section 5.4(e) hereof ("Guaranty
Agreement").
2.3
Guarantor Security Documents. All of the obligations of the
Subsidiaries under the
Guaranty Agreement shall be secured by a lien on all the
personal property
and assets of each
respective
Subsidiary
now existing or
hereinafter acquired granted pursuant to a guarantor security
agreement dated of
even date herewith
between the Company and each Subsidiary set forth in Section
5.4(f) hereof
("Guarantor Security
Agreement"),
which, except for Permitted
Liens, shall be a first lien.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to the Purchaser as of the
date
of this Agreement as follows:
3.1
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 and its Subsidiaries 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).
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3.2
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"). 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.
3.3 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.
3.4
Capitalization.
(a) As of the date hereof, the Company's authorized capital stock
consists of (i) 100,000,000 shares of Common Stock, par value
$.0005 per share,
of which 21,121,302
shares are
outstanding
and 40,600,182 shares have been
reserved for
issuance upon the exercise of all of the
outstanding
options,
warrants and other
securities issued by
the Company that are convertible into
Common Stock; and (ii)
25,000,000 shares of
Preferred Stock, no
par value per
share, of which 4,311,842 shares are outstanding. All of such
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 3.4(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) except for annual
issuances of Common Stock that will be
issued in connection
with the Company's
ESOP and to an advisory board that in
the aggregate will not exceed, during any calendar year, 1.576% of
the Company's
outstanding Common
Stock calculated
on a fully-diluted basis at a per share
price of $.17, 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;
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<PAGE>
(iii) there are no outstanding debt securities, notes, credit
agreements, credit
facilities or other
agreements,
documents or
instruments
evidencing
Indebtedness (as
defined in Section
3.14 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");
(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;
(vii) there
are no securities or instruments containing
antidilution or similar provisions that will be triggered by the
issuance of the
Note; and
(viii) the Company does not have any stock appreciation rights
or "phantom stock" plans or agreements or any similar plan or
agreement.
3.5
Issuance of the Note.
(a) The Note to be issued hereunder is duly authorized and, upon
payment and issuance in accordance with the terms hereof, shall be
free from all
taxes, Liens and
charges with respect to the issuance thereof. As of the
Closing, the Company
has authorized or reserved the necessary number of shares
of Common Stock for the issuance of the Note Shares.
All actions by the
Board,
the Company and its
stockholders necessary
for the valid issuance
of the Note
and the Note Shares pursuant to the terms of the Note has been
taken.
(b) The Note Shares, when issued and paid for upon conversion of
the
Note, will be validly
issued, fully paid and
nonassessable
and free from all
taxes, Liens and
charges with respect
to the issue thereof,
with the holders
being entitled to all rights accorded to a holder of the Common
Stock.
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3.6
Authorization;
Enforcement; Validity.
The Company has the
requisite
corporate power and
authority to enter into and perform its obligations under
this Agreement, the
Registration Rights Agreement, the Security Agreement, the
Stock Pledge
Agreement,
and the Note, 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 Note 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 Note, 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.
3.7
Dilutive Effect. The
Company understands
and acknowledges
that its
obligation to issue
the Note Shares upon
conversion of the Note
in accordance
therewith is absolute and unconditional regardless of the dilutive effect
that
such issuance may have on the ownership interests of other stockholders of the
Company.
3.8
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 (including, without
limitation, the
reservation for
issuance of the Note Shares) 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.
3.9 Governmental
Consents. Except for
the filing of a Form D with the SEC
and the registration
of the Note Shares
under the Securities Act for resale by
the Purchaser, 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.
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<PAGE>
3.10
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 Note.
3.11 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
Note under
the Securities Act or cause this offering of the Note to be
integrated with prior
offerings by the
Company for purposes of the Securities
Act or any applicable stockholder approval provisions.
3.12
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.
3.13
Litigation.
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.
3.14
Indebtedness
and Other Contracts. Except as disclosed in the SEC
Documents or otherwise set forth on Schedule 3.14, 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.
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3.15
Financial Information; SEC Documents. 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.
3.16
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.
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3.17
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.
3.18
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.
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3.19
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.
3.20
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.
3.21
Title. 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.
3.22
Intellectual Property Rights. Schedule 3.22 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.
9
<PAGE>
3.23
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.
3.24 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.
3.25
Sarbanes-Oxley
Act. The Company is in
compliance
with any and all
requirements of the Sarbanes-Oxley 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.
3.26
Investment Company
Status. The Company is not, and immediately after
receipt of
payment for the Note will not be, an "investment company," an
"affiliated person"
of, "promoter" for or
"principal
underwriter" for, or
an
entity "controlled"
by an
