MERGER AGREEMENT
This Merger Agreement (this "Agreement") is dated May __, 2005, and is by
and among African American Medical Network, Inc., a company duly organized and
existing under the laws of the State of Florida, having a place of business
located at 0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
(hereinafter referred to as "Target Company"); AFMN, Inc., a company duly
organized and existing under the laws of the State of Delaware, having a place
of business located at 0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "AFMN"); Medical Media Television,
Inc. f/k/a PetCARE Television Network, Inc., a company duly organized and
existing under the laws of the State of Florida, having a place of business
located at 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Medical Media"); and AAMN Acquisition Sub, Inc., a company duly
organized and existing under the laws of the State of Florida, having a place of
business located at 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "Acquisition Sub").
RECITALS
WHEREAS, Medical Media desires to acquire one hundred percent (100%) of
the capital stock of Target Company by issuing 14,865,657 shares of the common
stock of Medical Media to AFMN;
WHEREAS, in order to accomplish the above and enable AFMN to receive the
shares of Medical Media without having to recognize income for federal income
tax purposes, the acquisition of Target Company is being structured as a
"reverse triangular merger," intended to qualify as a tax-free reorganization
within the meaning of Section 368(a)(2)(E) of the Internal Revenue Code of 1986,
as amended (the "Code");
WHEREAS, the respective Boards of Directors of Medical Media, Acquisition
Sub, and Target Company have determined that it is in the best interests of
their respective companies and stockholders that Acquisition Sub merge with and
into Target Company (the "Merger") with Target Company being the surviving
corporation;
WHEREAS, Medical Media, as the sole stockholder of Acquisition Sub, and
AFMN, as the sole stockholder of Target Company, have approved this Agreement,
the Merger and the transactions contemplated by this Agreement pursuant to
action taken by written consent in accordance with the requirements of the
Florida Business Corporation Act ("FBCA") and the requirements of Delaware
General Corporation Law ("DGCL");
WHEREAS, pursuant to the terms and conditions set forth herein,
Acquisition Sub will be merged with and into Target Company, and AFMN will
receive 14,865,657 shares of the common stock of Medical Media in exchange for
all of AFMN's shares of the capital stock of Target Company.
NOW THEREFORE, the parties hereto hereby agree as follows:
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ARTICLE 1
THE MERGER
1.1. The Merger. Upon the terms and subject to the conditions set forth in
this Agreement, Acquisition Sub shall be merged with and into Target Company on
the Closing Date (as defined in Section 3.1 below), by filing with the Florida
Secretary of State fully executed Articles of Merger, in a form identical in all
material respects to that attached hereto as Exhibit "A" (the "Articles of
Merger"), and such other documents as may be required by applicable law to
effectuate the Merger. As a result of the Merger, the separate existence of
Acquisition Sub shall cease; all of the outstanding shares of common stock of
Target Company shall be exchanged for the shares of the common stock of Medical
Media in accordance with Article 2. below; and upon the filing of the Articles
of Merger with the Florida Secretary of State, Target Company shall possess all
the rights, privileges, immunities, powers, purposes and all property, causes of
action and every other asset of Acquisition Sub that it merged with, and shall
assume and be liable for all the liabilities, obligations and penalties of
Acquisition Sub in accordance with Florida law. The Articles of Incorporation
and Bylaws of Target Company, as in effect immediately prior to the Effective
Date, shall continue in full force and effect and shall not be changed in any
manner by the Merger.
ARTICLE 2
MERGER CONSIDERATION
2.1. The Merger Consideration. As of the Effective Date (as defined in
Section 3.2 below), as a result of the Merger and without any other action on
the part of the stockholders, AFMN shall receive 14,865,657 shares of the
authorized, but previously unissued, common capital stock of Medical Media (the
"Medical Media Shares") in exchange for all of the issued and outstanding
capital stock of Target Company.
ARTICLE 3
CLOSING; EFFECTIVE DATE
3.1 Closing. The closing contemplated by Sections 1.1 and 2.1 above (the
"Closing") shall be held at the offices of Xxxx Xxxx, P.A., 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx 00000, within three (3) business days of the date upon
which the registration statement on Form S-4 is declared effective by the
Securities and Exchange Commission (the "Commission"), unless another place or
time is agreed upon in writing by the parties (the "Closing Date").
3.2 Effective Date of Merger. After the Closing, the Articles of Merger
executed by the parties on the Closing Date shall be immediately submitted for
filing with the Secretary of State of the State of Florida. The date of such
filing, or such other date as the parties may agree upon in writing pursuant to
applicable law, shall be the effective date of the Merger (the "Effective
Date").
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ARTICLE 4
RELATED TRANSACTIONS AND ADDITIONAL AGREEMENTS
4.1 Registration Statement. Medical Media hereby agrees to file, as soon
as practicable after the execution of this Agreement, a registration statement
on Form S-4 ("Registration Statement") with the Commission registering for sale
the Medical Media Shares. AFMN hereby agrees that, as soon as practicable after
the Closing Date, AFMN will distribute the Medical Media Shares to its
shareholders on a pro-rata basis; provided, however, the Medical Media Shares
distributed by AFMN will have the same characteristics as the shares held by the
AFMN shareholders as of the Closing Date of this Agreement, i.e., if a
shareholder has restricted shares of AFMN then such shareholder will receive
restricted shares of Medical Media (regardless of registration), and likewise if
a shareholder has unrestricted shares of AFMN then such shareholder will receive
unrestricted shares of Medical Media; provided, however, prior to making such
distribution, AFMN shall make reasonable efforts to redeem outstanding shares
from each of its shareholders owning twenty (20) or less shares of common stock.
AFMN hereby acknowledges that, at Medical Media's option, shares underlying
convertible preferred shares, convertible debentures, warrants, or options
outstanding as of the Closing Date also will be registered pursuant to the
Registration Statement.
4.2 Board of Directors of Medical Media; Target Company and Newco.
(a) On the Closing Date, shareholders of Medical Media will execute
a Written Action in Lieu of Special Meeting of Shareholders to elect
Xxxxxx X. Xxxxx (Chairman of the Board), Xxxxxxxxxxx Xxxxxxxx, X. Xxxx
Xxxxx, Xxxxxxx X. Xxxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, and Xxxxxxx X.
Xxxxxx to serve as members of its Board of Directors until December 31,
2005.
(b) On the Closing Date, shareholders of Newco (as defined in
Section 4.4(a) hereof) will execute a Written Action in Lieu of Special
Meeting of Shareholders to elect Xxxxxx X. Xxxxx (Chairman of the Board),
Xxxxxxxxxxx Xxxxxxxx, X. Xxxx Xxxxx, Xxxxxxx Xxxxx, and Xxxxxxx X. Xxxxxx
to serve as members of its Board of Directors until December 31, 2005.
(c) On the Closing Date, shareholders of Target Company will execute
a Written Action in Lieu of Special Meeting of Shareholders to elect
Xxxxxx X. Xxxxx (Chairman of the Board), Xxxxxxxxxxx Xxxxxxxx, X. Xxxx
Xxxxx, Xxxxxxx X. Xxxxxxxxxx, and Xxxxxxx Xxxxx to serve as members of its
Board of Directors until December 31, 2005.
4.3 Employment Agreements.
(a) On and after the Closing Date, the employment agreement by and
between Medical Media and Xxxxxx X. Xxxxx, a copy of which is attached
hereto as Schedule 4.3(a), shall remain in full force and effect.
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(b) On the Closing Date, Medical Media and Xxxxxx X. Xxxxxxxxxxxx
shall execute an employment agreement substantially in the form attached
hereto as Exhibit "B".
(c) On the Closing Date, Medical Media and Xxxxxx X. Xxxx shall
execute an employment agreement substantially in the form attached hereto
as Exhibit "C".
4.4 Medical Media Restructuring.
(a) Formation of Wholly-Owned Subsidiary.. On or before the Closing
Date, Medical Media shall (i) form a corporation under the laws of the
State of Florida, which shall be a wholly-owned subsidiary of Medical
Media having the corporate name "PetCARE Television Network, Inc."
("Newco").
(b) Conversion of Promissory Notes.
(i) Medical Media is the obligor under the following
convertible promissory notes issued to Pet Edge, LLC (collectively,
the "Pet Edge Notes"):
(A) that certain Senior Convertible Promissory Note
issued to Pet Edge, LLC, dated March 10, 2003 in the original
principal amount of $1,000,000;
(B) that certain Senior Convertible Promissory Note
issued to Pet Edge, LLC, dated May 28, 2003 in the original
principal amount of $50,000;
(C) that certain Senior Convertible Promissory Note
issued to Pet Edge, LLC, dated June 6, 2003 in the original
principal amount of $50,000; and
(D) that certain Senior Convertible Promissory Note
issued to Pet Edge, LLC, dated July 1, 2003 in the original
principal amount of $275,000.
The Pet Edge Notes were amended by that certain Amendment to Senior
Convertible Promissory Notes, dated November 10, 2003 (the "Pet Edge
Note Amendment"). A copy of each Pet Edge Note and the Pet Edge Note
Amendment is attached hereto as Schedule 4.4(b)(i).
On or before the Closing Date, Medical Media shall convert the Pet
Edge Notes into (1) "Series A Zero Coupon Preferred Stock," which
preferred stock shall (i) have a senior liquidation preference of
$1,375,000, (ii) be convertible into shares of Medical Media's
common stock at a fixed conversion price of Two and 40/100 Dollars
($2.40) per share, and (iii) have preemptive rights on an as
converted basis; or (2) the number of shares of common stock
issuable pursuant to the terms of the Pet Edge Notes. If the holders
of the Pet Edge Notes elect to convert the Pet Edge Notes into
Series A Zero Coupon Preferred Stock, Medical Media shall issue to
Pet Edge, LLC three hundred percent (300%) warrant coverage,
calculated on the number of shares of Medical Media's common stock
issuable upon conversion of the Series A Zero Coupon Preferred Stock
(the "Pet Edge Stock Warrants"). The Pet Edge Stock Warrants shall
have a term of five (5) years and a strike price of fifteen cents
($0.15).
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(ii) Medical Media is the obligor under the following
convertible promissory notes (the "Convertible Promissory Notes"):
(A) that certain Convertible Promissory Note issued to
Xxxx Xxxxxxx dated June 10, 2003, in the original principal
amount of $50,000;
(B) that certain Subordinated Convertible Promissory
Note issued to Victus Capital, LLC, dated February 13, 2004,
in the original principal amount of $1,000,000, which note was
subsequently assigned to Vicis Capital, LLC;
(C) that certain Subordinated Convertible Promissory
Note issued to Victus Capital, LLC, dated July 27, 2004 in the
original principal amount of $1,000,000, which note was
subsequently assigned to Vicis Capital, LLC; and
(D) that certain Series A Convertible Debenture issued
to Vicis Capital, LLC, dated March 11, 2005 in the original
principal amount of $250,000.
A copy of each Convertible Promissory Note is attached hereto as
Schedule 4.4(b)(ii). On or before the Closing Date, Medical Media
shall convert the Convertible Promissory Notes into (1) "Series B
Zero Coupon Preferred Stock," which preferred stock, after giving
effect to the Series A Zero Coupon Preferred Stock liquidation
preference described in Section 4.4(b)(i) hereof, shall have a
liquidation preference of $2,300,000, and shall be convertible into
shares of Medical Media's common stock at a fixed conversion price
of Three Dollars ($3.00) per share; or (2) the number of shares of
Medical Media's common stock issuable pursuant to the terms of the
Convertible Promissory Notes. If the holders of the Convertible
Promissory Notes elect to convert the Convertible Promissory Notes
into Series B Zero Coupon Preferred Stock, Medical Media shall issue
to the holders of the Convertible Promissory Notes two hundred
twenty five percent (225%) warrant coverage, calculated on the
number of shares of Medical Media's common stock issuable upon
conversion of the Series B Zero Coupon Preferred Stock (the
"Convertible Note Stock Warrants"). The Convertible Note Stock
Warrants shall have a term of five (5) years and a strike price of
fifteen cents ($0.15).
(c) Payment of Obligations. On or before the Closing Date, Medical
Media shall have satisfied the following liabilities:
(i) Promissory Note dated May 16, 2002 by and between PetCARE
Television Network, Inc. and Xxxxx Xxxxxxx in the principal amount
of $100,000. The parties agree the current balance on this
obligation is $91,500.
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(ii) Promissory Note dated June 7, 2002 by and between PetCARE
Television Network, Inc. and Xxxxxx X. Xxxx in the principal amount
of $25,000. The parties agree the current balance on this obligation
is $25,000.
(iii) Promissory Note dated June 5, 2002 by and between PetCARE
Television Network, Inc. and Xxxxxx and Xxxxx Xxxx in the principal
amount of $6,000. The parties agree the current balance on this
obligation is $6,000.
(iv) Promissory Note dated June 5, 2002 by and between PetCARE
Television Network, Inc. and Xxxxxx and Xxxxx Xxxxxx in the
principal amount of $5,000. The parties agree the current balance on
this obligation is $5,000.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF AFMN AND TARGET COMPANY
AFMN and Target Company, jointly and severally, represent and warrant to
Medical Media and Acquisition Sub as follows:
5.1 Organization, Power, Standing and Qualification. Target Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida and has full corporate or other power and authority
to carry on its business as it is now being conducted and to own and operate the
properties and assets now owned and operated by it. AFMN is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has full corporate or other power and authority to carry on its
business as it is now being conducted and to own and operate the properties and
assets now owned and operated by it. Each of Target Company and AFMN is duly
qualified to do business and is in good standing in each and every jurisdiction
where the failure to qualify or to be in good standing would have an adverse
effect upon its financial condition, the conduct of its business or the
ownership of its assets.
5.2 Authority. Each of Target Company and AFMN has the requisite corporate
power and authority to enter into this Agreement and to carry out its respective
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and approved by the Board of Directors of Target Company and AFMN and the
shareholders of Target Company and AFMN; and no other corporate proceedings on
the part of Target Company or AFMN is necessary to approve and adopt this
Agreement or to approve the consummation of the Merger contemplated hereby. This
Agreement has been duly and validly executed and delivered by Target Company and
AFMN and constitutes a valid and binding agreement of Target Company and AFMN,
enforceable in accordance with its terms.
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5.3 Absence of Breach; No Consents. Except as set forth in Schedule 5.3
attached hereto, the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby does not and will not
(a) conflict with, and will not result in a breach of, any provision of the
Articles of Incorporation or Bylaws of Target Company; (b) conflict with, result
in a breach of or a default under, cause the acceleration of any payments
pursuant to, or otherwise impair the good standing, validity or effectiveness of
any material agreement, contract, indenture, loan or credit agreement, lease,
mortgage, or any other material agreement or instrument to which Target Company
is a party or by which it or any of its material properties may be affected or
bound; (c) violate any material provision of law, rule or regulation to which
Target Company is subject or any order, writ, judgment, injunction, decree,
determination, or award affecting or binding upon Target Company or any of its
material properties, or cause the suspension or revocation of any authorization,
consent, permit, approval or license, presently in effect, which affects or
binds Target Company or any of its material properties; (d) constitute grounds
for the loss or suspension of any permits, licenses or other authorizations
material to the business, condition (financial or otherwise), operations or
prospects of Target Company; or (e) require the authorization, consent, approval
or license of any third party of such a nature that the failure to obtain the
same would have a material adverse effect on the business, condition (financial
or otherwise), operations or prospects of Target Company.
5.4 Capitalization of Target Company; Title to Target Shares. The
authorized and outstanding capital stock of Target Company (the "Target Shares")
is set forth on Schedule 5.4 attached hereto. Except as set forth on Schedule
5.4, there are no outstanding options, warrants, conversion privileges,
subscriptions, calls, commitments or rights of any character relating to any
authorized but unissued capital stock of Target Company. The shareholders
reflected on Schedule 5.4 are and will be on the Closing Date the record and
beneficial owners and holders of the Target Shares, free and clear of all liens,
claims, encumbrances, and restrictions of any kind. All of the outstanding
equity securities of Target Company have been duly authorized and validly issued
and are fully paid and nonassessable. On the Closing Date, Medical Media will
acquire good, absolute, and marketable title in the Target Shares, free and
clear of all liens, claims, encumbrances, rights of first refusal, or
restrictions of any kind, including any restriction on use, voting, transfer,
receipt of income, or exercise of any other attribute of ownership.
5.5 Subsidiaries. Target Company owns no shares of capital stock or other
equity interest in any corporation, partnership, joint venture, trust or other
business organization or enterprise.
5.6 Financial Statements. Target Company has delivered to Medical Media:
(a) an unaudited balance sheet of Target Company as of December 31, 2004
(including the notes thereto, the "Balance Sheet"), and the related statements
of income, changes in stockholders' equity, and cash flow for each of the fiscal
years then ended; and (b) an unaudited balance sheet of Target Company as of
March 31, 2005 (the "Interim Balance Sheet"), and the related unaudited
statements of income, changes in stockholders' equity, and cash flow for the
three-month period then ended. Such financial statements and notes fairly
present the financial condition and the results of operations, changes in
stockholders' equity, and cash flow of Target Company as at the respective dates
of and for the periods referred to in such financial statements and are prepared
in accordance with GAAP, subject, in the case of the Interim Balance Sheet and
related financial statements, to normal year end adjustments. The financial
statements referred to in this Section 5.6 reflect the consistent application of
such accounting principles throughout the periods involved, except as disclosed
in the notes to such financial statements. No financial statement of any person
other than Target Company is required by GAAP to be included in the financial
statements of Target Company.
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5.7 Title to Properties. Except as set forth on Schedule 5.7 hereto,
Target Company has good, valid and marketable title to all of its assets, free
and clear of all mortgages, liens, pledges, security interests and other
encumbrances. Target Company owns no real property. Target Company owns all the
properties and assets (whether tangible or intangible) that it purports to own
and the property located in the facilities owned or operated by Target Company
or reflected as owned in the books and records of Target Company, including all
of the properties and assets reflected in Target Company's Balance Sheet and
Target Company's Interim Balance Sheet (as such terms are defined herein)(except
for assets held under capitalized leases disclosed as such and personal property
purchased or sold since the date of Target Company's Balance Sheet and Target
Company's Interim Balance Sheet, as the case may be, in the Ordinary Course of
Business (as defined herein), and consistent with past practice.
5.8 Absence of Undisclosed Liabilities. Target Company has no liabilities
or obligations except for those: (a) reflected on the Interim Balance Sheet; (b)
reflecting contractual liabilities or obligations incurred in the Ordinary
Course of Business that are not required by GAAP to be reflected in a balance
sheet; (c) specifically disclosed on Schedule 5.12 attached hereto; and (d)
specifically disclosed on Schedule 5.8 attached hereto. Except as otherwise
provided in this Agreement, the term "liabilities or obligations" as used in
this Agreement shall include any direct or indirect indebtedness, claim, loss,
damage, deficiency (including deferred income tax and other net tax
deficiencies), cost, expense, obligation, guarantee, or responsibility, whether
accrued, absolute, or contingent, known or unknown, fixed or unfixed, liquidated
or unliquidated, secured or unsecured.
5.9 Certain Tax Matters. Except as set forth in Schedule 5.9 attached
hereto, Target Company has duly filed all federal, state, and local tax returns
and reports required to be filed by it for all periods ending on or prior to
March 31, 2005, and all taxes, including income, payroll, gross receipts, sales,
communication and other taxes and any penalties with respect thereto, shown
thereon to be due and payable, have been paid, withheld, or reserved for or are
reflected as a liability in the Interim Balance Sheet. Target Company has not
entered into any agreement for the extension of time for the assessment of any
tax or tax delinquency, has received no outstanding or unresolved notices from
the Internal Revenue Service or any taxing body of any proposed examination or
of any proposed deficiency or assessment, and Target Company has properly
withheld all amounts required by law to be withheld for income taxes and
unemployment taxes, including, without limitation, social security and
unemployment compensation relating to its employees, and remitted such withheld
amounts to the appropriate taxing authority as required by law.
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5.10 Litigation; Compliance with Laws. Except as set forth in Schedule
5.10 attached hereto, there is no suit, action, claim, arbitration,
administrative or legal or other proceeding, or governmental investigation
pending or, to the knowledge of AFMN, threatened against or related to Target
Company. Except as set forth in Schedule 5.10 attached hereto, there has been no
failure to comply with, nor any default under, any law, ordinance, requirement,
regulation, or order applicable to Target Company or its business operations,
nor any violation of, or default with respect to, any order, writ, injunction,
judgment or decree of any court or federal, state or local department, official,
commission, authority, board, bureau, agency, or other instrumentality issued or
pending against Target Company which might have a material adverse effect on the
financial condition, its business, results of operations, properties or assets
of Target Company. In addition to the foregoing, Schedule 5.10 contains a
complete and accurate list of all permits, licenses, zoning variances, approvals
and other authorizations necessary for the operation of Target Company's
business. All such permits, licenses, approvals and authorizations are currently
valid and in full force, and no revocation, cancellation or withdrawal thereof
has been effected or threatened. The execution of this Agreement and the
performance of the transactions contemplated hereby have not and will not change
in any respect, or result in the termination of, any such material permits,
licenses, certificates, zoning variances and authorizations.
5.11 Proprietary Information. Target Company owns, possesses or lawfully
uses all trademarks, trademark applications, service marks, service xxxx
applications, trade names, franchises, copyrights, copyright applications and
similar intangible rights used in its business and trade secrets or other
proprietary information similarly used (collectively, the "Trademarks"), each
item of which is listed in Schedule 5.11 attached hereto, and those Trademarks
designated on Schedule 5.11 are owned exclusively by Target Company, are valid
and enforceable, and none infringe (nor has any claim been made that there is
any such infringement) on the trademarks, service marks, trade names, trade
secrets, copyrights or similar intangible rights of others. After due inquiry,
to the best of AFMN's knowledge, there are no claims against Target Company that
it is or may be infringing on or otherwise acting adversely to the rights of any
person under or in respect of any trademark, service xxxx, trade name,
copyright, license, franchise, permission, or other intangible right. Target
Company is not obligated or under any liability to make any payments by way of
royalties, fees, or otherwise to any owner or licensee of, or other claimant to,
any trademark, trade name, copyright, or other intangible asset with respect to
the use thereof, in connection with the conduct of its business or otherwise.
5.12 Contracts. Except as set forth in Schedule 5.12 or in another
Schedule to this Agreement, Target Company is not a party to any material
contract, agreement, commitment, lease, indenture, fringe benefit or other plan.
For purposes of this Section 5.12 "material" shall mean any contract, agreement,
commitment, lease, indenture, fringe benefit or other plan entered into which is
not in the Ordinary Course of Business or, if entered into in the Ordinary
Course of Business, which involves a payment, commitment or entitlement in
excess of $10,000. True and correct copies of all of the contracts, agreements,
commitments, leases, indentures, fringe benefits or other plans, documents and
instruments identified in Schedule 5.12, have been delivered to Medical Media.
5.13 Other Transactions. Except as disclosed on Schedule 5.13 hereto,
Target Company has, since March 31, 2005, (a) operated its business in the
Ordinary Course of Business, (b) not incurred any debts, liabilities or
obligations except in the Ordinary Course of Business, or (c) not pledged or
subjected to lien or other encumbrance any of its assets, tangible or
intangible, except in the Ordinary Course of Business.
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5.14 No Changes. Since March 31, 2005 there has not been:
(a) Any change in the financial or other condition, assets,
liabilities or business of Target Company, except changes described in
Schedule 5.14 hereto, none of which individually or in the aggregate has
been materially adverse to Target Company;
(b) Any damage, destruction or loss (whether or not covered by
insurance) or any condemnation by governmental authorities which has or
may adversely affect the business or assets of Target Company to a
material degree;
(c) Any declaration, setting aside or payment of any dividend or
other distribution in respect of any of Target Company's shares or any
direct or indirect redemption, purchase or other acquisition of Target
Company's shares or any direct or indirect payment or incurring of
management fees or other transactions between AFMN or the shareholders of
AFMN and Target Company; or
(d) Any increase in the compensation payable or to become payable by
Target Company to any of its officers, employees or agents, or any known
payment or arrangement made to or with any thereof, except in the Ordinary
Course of Business as disclosed to Medical Media.
5.15 Disclosure. No representation or warranty of Target Company or AFMN
in this Agreement omits to state a material fact necessary to make the
statements herein or therein, in light of the circumstances in which they were
made, not misleading. There is no fact known to AFMN that has specific
application to Target Company (other than general economic or industry
conditions) and that materially adversely affects or, as far as AFMN can
reasonably foresee, materially threatens, the assets, business, prospects,
financial condition, or results of operations of Target Company that has not
been set forth in this Agreement.
5.16 Copies of Articles, Bylaws and Stock Records.
(a) A copy of Target Company's Articles of Incorporation (certified
by the Secretary of State of the State of Florida), Bylaws and stock
records (each certified by the Secretary of Target Company) have been
delivered to Medical Media and each is correct and in effect as of and at
the date of this Agreement. Such books and records have been regularly and
properly kept and are complete, accurate and legally sufficient under
applicable law.
(b) A copy of AFMN's Articles of Incorporation (certified by the
Secretary of State of the State of Delaware), Bylaws and stock records
(each certified by the Secretary of AFMN) have been delivered to Medical
Media and each is correct and in effect as of and at the date of this
Agreement. Such books and records have been regularly and properly kept
and are complete, accurate and legally sufficient under applicable law.
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5.17 Directors and Officers of Target Company and AFMN. Target Company and
AFMN have each delivered to Medical Media a true and complete list of each
entity's directors and officers, each of whom has been duly elected.
5.18 Investment Representations. AFMN is acquiring the Medical Media
Shares for its own account for investment only, and not with a view towards
their distribution other than in compliance with all applicable securities laws.
AFMN has had an opportunity to ask questions and receive answers from Medical
Media and its representatives concerning the terms and conditions of the
investment, the properties, assets, liabilities, business, operations, financial
condition, and prospects of Medical Media and all other matters deemed relevant
to AFMN. AFMN has independently evaluated the transactions contemplated by this
Agreement and has reached its own decision to enter into this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
OF MEDICAL MEDIA AND ACQUISITION SUB
Medical Media and Acquisition Sub, jointly and severally, represent and
warrant to AFMN and Target Company as follows:
6.1 Organization, Power, Standing and Qualification. Each of Medical Media
and Acquisition Sub is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and each has full corporate
power and authority to carry on its business as it is now being conducted and to
own and operate the properties and assets now owned and operated by them. Each
of Medical Media and Acquisition Sub is duly qualified to do business and is in
good standing in each and every jurisdiction where the failure to qualify or to
be in good standing would have an adverse effect upon its financial condition,
the conduct of its business or the ownership of its assets.
6.2 Authority. Each of Acquisition Sub and Medical Media has the power and
authority to execute, deliver and perform this Agreement; and this Agreement is
a valid and binding obligation of Medical Media and Acquisition Sub, enforceable
in accordance with its terms.
6.3 Validity of Contemplated Transactions. To the knowledge of Medical
Media, except as set forth in Schedule 6.3 attached hereto, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby does not and will not, (a) conflict with, and
will not result in a breach of, any provision of the Articles of Incorporation
or Bylaws of Medical Media or its subsidiaries; (b) conflict with, result in a
breach of or a default under, cause the acceleration of any payments pursuant
to, or otherwise impair the good standing, validity, or effectiveness of any
material agreement, contract, indenture, loan or credit agreement, lease,
mortgage, or any other material agreement or instrument to which Medical Media
or any of its subsidiaries is a party or by which it or they or any of its or
their material properties may be affected or bound; (c) violate any material
provision of law, rule or regulation to which Medical Media or its subsidiaries
is subject to or any order, writ, judgment, injunction, decree, determination,
or award affecting or binding upon Medical Media or any of its subsidiaries or
any of its or their material properties, or cause the suspension or revocation
of any authorization, consent, permit, approval or license, presently in effect,
which affects or binds Medical Media or any of its subsidiaries or any of its or
their material properties; (d) constitute grounds for the loss or suspension of
any permits, licenses or other authorizations material to the business,
condition (financial or otherwise), operations or prospects of Medical Media; or
(e) require the authorization, consent, approval or license of any third party
of such a nature that the failure to obtain the same would have a material
adverse effect on the business, condition (financial or otherwise), operations
or prospects of Medical Media.
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6.4 Capitalization of Medical Media and Acquisition Sub. The authorized
and outstanding capital stock of Medical Media and Acquisition Sub is set forth
on Schedule 6.4 attached hereto. Other than the securities issuable pursuant to
Section 4.4(b) hereof and except as set forth on Schedule 6.4, there are no
outstanding options, warrants, conversion privileges, subscriptions, calls,
commitments or rights of any character relating to any authorized but unissued
capital stock of Medical Media or Acquisition Sub. All of the shares to be
issued by Medical Media to AFMN will have been duly authorized and validly
issued and be fully paid and nonassessable. On the Closing Date, AFMN will
acquire good, absolute, and marketable title in the Medical Media Shares, free
and clear of all liens, claims, encumbrances, or restriction of any kind, except
for certain restrictions on transfer imposed by federal and state securities
laws.
6.5 Subsidiaries. Other than Acquisition Sub and Newco, Medical Media owns
no shares of capital stock or other equity interest in any corporation,
partnership, joint venture or other business organization or enterprise.
6.6 Financial Statements. Medical Media has delivered to AFMN: (a) an
audited balance sheet of Medical Media as at December 31, 2004 (including the
notes thereto, the "Balance Sheet"), and the related statements of income,
changes in stockholders' equity, and cash flow for each of the fiscal years then
ended; and (b) an unaudited balance sheet of Medical Media as at March 31, 2005
(the "Interim Balance Sheet"), and the related unaudited statements of income,
changes in stockholders' equity, and cash flow for the three-month period then
ended. Such financial statements and notes fairly present the financial
condition and the results of operations, changes in stockholders' equity, and
cash flow of Medical Media as at the respective dates of and for the periods
referred to in such financial statements and are prepared in accordance with
GAAP, subject, in the case of the Interim Balance Sheet and related financial
statements, to normal year end adjustments. The financial statements referred to
in this Section 6.6 reflect the consistent application of such accounting
principles throughout the periods involved, except as disclosed in the notes to
such financial statements. No financial statement of any person other than
Medical Media is required by GAAP to be included in the financial statements of
Medical Media.
6.7 Absence of Undisclosed Liabilities. To the knowledge of Medical Media,
except as set forth on Schedule 6.7 attached hereto, Medical Media has no
liabilities or obligations except for those (a) reflected in its Interim Balance
Sheet; (b) reflecting contractual liabilities or obligations incurred in the
Ordinary Course of Business that are not required by GAAP to be reflected in a
balance sheet; and (c) incurred in the Ordinary Course of Business subsequent to
the date of the Interim Balance Sheet and not required to be disclosed pursuant
to the terms of this Agreement. Except as otherwise provided in this Agreement,
the term "liabilities or obligations" as used in this Agreement shall include
any direct or indirect indebtedness, claim, loss, damage, deficiency (including
deferred income tax and other net tax deficiencies), cost, expense, obligation,
guarantee, or responsibility, whether accrued, absolute, or contingent, known or
unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured.
-12-
6.8 Certain Tax Matters. Except as set forth on Schedule 6.8 attached
hereto, Medical Media has duly filed all federal, state, and local tax returns
and reports required to be filed by it for all periods ending on or prior to
March 31, 2005 and all taxes, including income, sales, excise, travel, payroll,
gross receipts, and other taxes and any penalties with respect thereto, shown
thereon to be due and payable, have been paid, withheld, or reserved for or are
reflected as a liability in the Interim Balance Sheet. Medical Media has not
entered into any agreements for the extension of time for the assessment of any
tax or tax delinquency, has received no outstanding or unresolved notices from
the Internal Revenue Service or any taxing body of any proposed examination or
of any proposed deficiency or assessment, and to the knowledge of Medical Media,
has properly withheld all amounts required by law to be withheld for income
taxes and unemployment taxes, including without limitation social security and
unemployment compensation, relating to its employees, and remitted such withheld
amounts to the appropriate taxing authority as required by law.
6.9 Litigation; Compliance with Laws. Except as set forth in Schedule 6.9
attached hereto, there is no suit, action, claim, arbitration, administrative or
legal or other proceeding, or governmental investigation pending or, to the
knowledge of Medical Media, threatened against or related to Medical Media.
Except as set forth in Schedule 6.9 attached hereto, there has been no failure
to comply with, nor any default under, any law, ordinance, requirement,
regulation, or order applicable to Medical Media or its business operations, nor
any violation of or default with respect to any order, writ, injunction,
judgment, or decree of any court or federal, state or local department,
official, commission, authority, board, bureau, agency, or other instrumentality
issued or pending against Medical Media which might have a material adverse
effect on the financial condition, its business, results of operations,
properties or assets of Medical Media.
6.10 No Changes. To the knowledge of Medical Media, except as set forth on
Schedule 6.10 attached hereto, since March 31, 2005, there has not been:
(a) Any change in the financial or other condition, assets,
liabilities or business of Medical Media, except changes described in
Schedule 6.10 hereto, none of which individually or in the aggregate has
been materially adverse to Medical Media;
(b) Any damage, destruction or loss (whether or not covered by
insurance) or any condemnation by governmental authorities which has or
may adversely affect the business or assets of Medical Media to a material
degree;
(c) Any declaration, setting aside or payment of any dividend or
other distribution in respect of any of Medical Media's shares or any
direct or indirect redemption, purchase or other acquisition of Medical
Media's shares or any direct or indirect payment or incurring of
management fees or other transactions between the shareholders of Medical
Media and Medical Media; or
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(d) Any increase in the compensation payable or to become payable by
Medical Media to any of its officers, employees or agents, or any known
payment or arrangement made to or with any thereof, except in the Ordinary
Course of Business as disclosed to AFMN.
6.11 Disclosure. To the knowledge of Medical Media, no representation or
warranty of Medical Media or Acquisition Sub in this Agreement omits to state a
material fact necessary to make the statements herein or therein, in light of
the circumstances in which they were made, not misleading. There is no fact
known to Medical Media that has specific application to Medical Media (other
than general economic or industry conditions) and that materially adversely
affects or, as far as Medical Media can reasonably foresee, materially
threatens, the assets, business, prospects, financial condition, or results of
operations of Medical Media that has not been set forth in this Agreement.
6.12 Copies of Articles, Bylaws and Stock Records. A copy of Medical
Media's and Acquisition Subs' Articles of Incorporation (each certified by the
Secretary of State of the State of Florida), Bylaws and stock records (each
certified by the Secretary of each entity) has been delivered to AFMN and each
is correct and in effect as at the date of this Agreement. Such books and
records have been regularly and properly kept and are complete, accurate and
legally sufficient under applicable law.
ARTICLE 7
COVENANTS OF AFMN PRIOR TO CLOSING DATE
7.1 Operation of the Business of Target Company. Between the date of this
Agreement and the Closing Date, AFMN will, and will cause Target Company to: (a)
conduct the business of Target Company only in the Ordinary Course of Business;
(b) use their best efforts to preserve intact the current business organization
of Target Company, keep available the services of the current officers,
employees, and agents of Target Company, and maintain the relations and good
will with suppliers, customers, landlords, creditors, employees, agents, and
others having business relationships with Target Company; (c) confer with
Medical Media concerning operational matters of a material nature; (d) otherwise
report periodically to Medical Media concerning the status of the business,
operations, and finances of Target Company; (e) not declare, set aside or pay
any dividend or other distribution in respect of any of Target Company's shares
or any direct or indirect redemption, purchase or other acquisition of Target
Company's shares or any direct or indirect payment or incurring of management
fees or other transactions between AFMN and Target Company, and (f) not issue
any options, warrants, puts, calls, right of first refusal, or any other stock
rights.
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ARTICLE 8
CONDITIONS PRECEDENT TO THE CLOSING
8.1 Obligation of Medical Media and Acquisition Sub to Close. The
obligation of Medical Media and Acquisition Sub to consummate the Merger on the
Closing Date shall be subject to the satisfaction or the waiver by Medical Media
and Acquisition Sub of the following conditions on or prior to the Closing Date:
(a) Representations and Warranties; Compliance with Agreement. The
representations and warranties of Target Company and AFMN set forth in
this Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though made on
the Closing Date, and Target Company and AFMN shall have performed all
covenants and agreements to be performed by any of them under this
Agreement on or prior to the Closing Date; and Target Company and AFMN
shall have delivered to Medical Media certificates to such effect dated as
of the Closing Date and signed by Target Company and AFMN.
(b) Litigation Affecting Closing. On the Closing Date, no proceeding
shall be pending or threatened before any court or governmental agency in
which it is sought to restrain or prohibit or to obtain damages or other
relief in connection with this Agreement or the consummation of the
transactions contemplated hereby, and no investigation that might
eventuate in any such suit, action or proceeding shall be pending or
threatened;
(c) Required Consents. The holders of any material indebtedness of
Target Company, the lessors of any material real or personal property
assets leased by Target Company, the parties to any other material
contract, commitment or agreement to which Target Company is a party, any
governmental agency or body or any other individual or entity which owns
or has authority to grant any franchise, license, permit, easement, right
or other authorization necessary for the business of Target Company and
any governmental body or regulatory agency having jurisdiction over Target
Company, to the extent that their consent or approval is required under
the pertinent debt, lease, contract, commitment or agreement or other
document or instrument or under applicable laws, rules or regulations for
the consummation of the Merger with Acquisition Sub and the transaction
contemplated hereby in the manner herein provided, shall have granted such
consent or approval;
(d) No Material Damage to Business. The assets of Target Company
shall not have been and shall not be threatened to be materially adversely
affected in any way as a result of fire, explosion, disaster, accident,
labor dispute, any action by any governmental authority, flood, riot,
civil disturbance, uprising, activity of armed forces or act of God or
public enemy;
(e) Conversion of Convertible Promissory Notes. Medical Media shall
have converted (i) the Pet Edge Notes into Series A Zero Coupon Preferred
Stock or common stock, whichever is applicable, upon the terms and
conditions set forth in Section 4.4(b)(i) hereof; and (ii) the Convertible
Promissory Notes into Series B Zero Coupon Preferred Stock or common
stock, whichever is applicable, upon the terms and conditions set forth in
Section 4.4(b)(ii) hereof; and
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(f) Delivery of Audited Financial Statements of Target Company.
Target Company shall have delivered to Medical Media an audited balance
sheet of Target Company as of December 31, 2004 (including the notes
thereto), and the related statements of income, changes in stockholders'
equity, and cash flow for each of the fiscal years then ended.
8.2 Obligation of Target Company and AFMN to Close. The obligation of
Target Company and AFMN to consummate the Merger contemplated by this Agreement
on the Closing Date shall be subject to the satisfaction of the following
conditions on or prior to the Closing Date:
(a) Representations and Warranties; Compliance with Agreement. The
representations and warranties of Medical Media and Acquisition Sub set
forth in this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing Date as though made
on the Closing Date, and Medical Media and Acquisition Sub shall have
performed all covenants and agreements to be performed by it under this
Agreement on or prior to the Closing Date, and Medical Media and
Acquisition Sub shall have delivered to AFMN certificates to such effect
dated as of the Closing Date and signed by Medical Media and Acquisition
Sub.
(b) Litigation Affecting Closing. On the Closing Date, no proceeding
shall be pending or threatened before any court or governmental agency in
which it is sought to restrain or prohibit or to obtain damages or other
relief in connection with this Agreement or the consummation of the
transaction contemplated hereby, and no investigation that might eventuate
in any such suit, action or proceeding shall be pending or threatened.
(c) Shareholder Approval. The shareholders of AFMN shall have
approved the Merger and all actions contemplated hereby which require the
approval of the AFMN shareholders, in accordance with the requirements of
DGCL.
ARTICLE 9
INDEMNIFICATION
9.1 By AFMN and Target Company. From and after the Closing Date, AFMN and
Target Company, jointly and severally, shall indemnify and hold harmless Medical
Media and Acquisition Sub from and against (a) any and all damages, losses,
obligations, deficiencies, liabilities, claims, encumbrances, penalties, costs,
and expenses, including reasonable attorneys' fees (together, "Loss"), which
Medical Media or Acquisition Sub may suffer or incur, resulting from, related
to, or arising out of any misrepresentation, breach of warranty, or
nonfulfillment of any of the covenants or agreements of Target Company or AFMN
in this Agreement or from any misrepresentation in or omission from any schedule
to this Agreement, certificate, financial statement, or from any other document
furnished or to be furnished to Medical Media or Acquisition Sub hereunder, (b)
any Loss based upon injuries to persons, property or business arising out of
events on or before the Closing Date whether known or unknown, currently
asserted or arising hereafter, and (c) any and all actions, suits,
investigations, proceedings, demands, assessments, audits, judgments and claims
(including employment-related claims) arising out of any of the foregoing;
provided, however, that before Medical Media or Acquisition Sub may assert a
claim for indemnity under this Article, Medical Media or Acquisition Sub must
give or cause to be given written notice of such claim to AFMN or Target Company
as provided in Section 9.3.
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9.2 By Medical Media. From and after the Closing Date, Medical Media shall
indemnify and hold harmless AFMN from and against any and all Loss which AFMN
may suffer or incur, resulting from, related to, or arising out of any
misrepresentation, breach of warranty, or nonfulfillment of any of the covenants
or agreements of Medical Media or Acquisition Sub in this Agreement or from any
misrepresentation in or omission from any certificate or document furnished or
to be furnished to AFMN or Target Company hereunder; provided, however, that
before AFMN may assert a claim for indemnity under this Article, AFMN must give
or cause to be given written notice of such claim to Medical Media as provided
in Section 9.3.
9.3 Notice. Promptly after acquiring knowledge of any Loss or action,
suit, investigation, proceeding, demand, assessment, audit, judgment, or claim
against which AFMN and Target Company may be required to indemnify Medical Media
or Acquisition Sub or against which Medical Media may be required to indemnify
AFMN, as the case may be, the non-indemnifying party shall give to the other
party written notice thereof. Each indemnifying party shall, at its own expense,
promptly defend, contest or otherwise protect against any Loss or action, suit,
investigation, proceeding, demand, assessment, audit, judgment, or claim against
which it has indemnified an indemnified party, and each indemnified party shall
receive from the other party all necessary and reasonable cooperation in said
defense including, but not limited to, the services of employees of the other
party who are familiar with the transactions out of which any such Loss or
action, suit, investigation, proceeding, demand, assessment, audit, judgment, or
claim may have arisen. The indemnifying party shall have the right to control
the defense of any such proceeding unless relieved of its liability hereunder
with respect to such defense by the indemnified party. The indemnifying party
shall have the right, at its option, and, unless so relieved, to compromise or
defend, at its own expense by its own counsel, any such matter involving the
asserted liability of the indemnified party. In the event that the indemnifying
party shall undertake to compromise or defend any such asserted liability, it
shall promptly notify the indemnified party of its intention to do so. In the
event that an indemnifying party, after written notice from an indemnified
party, fails to take timely action to defend the same, the indemnified party
shall have the right to defend the same by counsel of its own choosing, but at
the cost and expense of the indemnifying party.
9.4 Money Damages. If the Losses indemnified against pursuant to the
provisions of Sections 9.1 and 9.2 hereof can be compensated by the payment of
money to the other party, the indemnifying party shall, within thirty (30) days
after receipt of a written notice of a claim pursuant to Section 9.3, deliver to
the other party either: (a) the amount of such claim by check or by wire
transfer to the bank account of that party's choosing, or (b) a written notice
stating that it or he objects to the validity of such claim and setting forth in
reasonable detail the grounds on which it is contesting the validity of the
claim.
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ARTICLE 10
SURVIVAL OF REPRESENTATIONS,
WARRANTIES, AND COVENANTS
10.1 Survival. All representations, warranties, covenants and obligations
in this Agreement shall survive the Closing Date and the consummation of the
Agreement for a period of two (2) years. Medical Media and Acquisition Sub shall
have no liability with respect to any representation or warranty, or covenant or
obligation to be performed and complied with prior to the Closing Date, unless
on or before the date which is two (2) years subsequent to the Closing Date,
AFMN notifies Medical Media or Acquisition Sub of a claim specifying the factual
basis of that claim in reasonable detail to the extent then known by AFMN.
Target Company and AFMN shall have no liability with respect to any
representation or warranty, or covenant or obligation to be performed and
complied with prior to the Closing Date, unless on or before the date which is
two (2) years subsequent to the Closing Date, Medical Media or Acquisition Sub
notifies Target Company or AFMN of a claim specifying the factual basis of that
claim in reasonable detail to the extent then known by Medical Media or
Acquisition Sub.
ARTICLE 11
CONDUCT OF TARGET COMPANY AND ACQUISITION SUB AFTER CLOSING DATE
11.1 Additional Actions and Cooperation. After the Closing Date, at the
request of either party and at the requesting party's expense, but without
additional consideration, the other party shall execute and deliver from time to
time such further instruments of assignment, conveyance and transfer, shall
cooperate in the conduct of litigation and the processing and collection of
insurance claims, and shall take such other actions as may reasonably be
required to confirm and perfect the title to the assets of Target Company, and
otherwise to accomplish the orderly transfer of the business and assets of
Target Company as contemplated by this Agreement and Merger.
11.2 Audit Access. Medical Media will preserve the books, records,
reports, documents and lists obtained by it pursuant to this Agreement for a
period of at least three years from the Closing Date, will not thereafter
destroy or otherwise dispose of such records without giving AFMN notice and the
opportunity to take possession thereof, and, while in possession of such
records, will permit representatives of AFMN to have access at reasonable times
to such books, records, reports, documents and files, to make such copies
therefrom as such representatives reasonably request.
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ARTICLE 12
BROKERAGE; EXPENSES
12.1 Brokerage; Expenses. None of the parties has employed or will employ
any broker, agent, finder, or consultant (collectively, "Broker") or has
incurred or will incur any liability for any brokerage fees, commissions,
finders' fees, or other fees, in connection with the negotiation or consummation
of the transactions contemplated by this Agreement. AFMN and Target Company is
responsible for and hereby agrees to indemnify and hold Medical Media and
Acquisition Sub harmless against and in respect of any claim for brokerage fees,
commissions, or other finders' fees or commissions of any such Broker employed
by Target Company or AFMN and any attorneys' fees incurred by Medical Media or
Acquisition Sub in relation to any such claim by a Broker. Similarly, Medical
Media is responsible for and hereby agrees to indemnify and hold AFMN and Target
Company harmless against and in respect of any claim for brokerage fees,
commissions, or other finders' fees or commissions of any such Broker employed
by Medical Media or Acquisition Sub and any attorneys' fees incurred by AFMN or
Target Company in relation to any such claim by a Broker. Except as otherwise
expressly provided in this Agreement, the parties hereto agree to bear their
respective expenses individually, each in respect of all expenses of any
character incurred by it in connection with this Agreement or the transactions
contemplated hereby.
ARTICLE 13
TERMINATION
13.1 Events of Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated by written notice of
termination at any time before the Closing Date only as follows:
(a) By mutual consent of AFMN and Medical Media;
(b) Provided that Medical Media or Acquisition Sub is not in default
hereunder, by Medical Media or Acquisition Sub upon three days' written
notice to AFMN or Target Company, if all of the conditions precedent to
Closing set forth in Section 8.1 hereof have not been met; or
(c) Provided that AFMN or Target Company is not in material default
hereunder, by AFMN or Target Company upon three days' written notice to
Medical Media if all of the conditions precedent to Closing set forth in
Section 8.2 hereof have not been met.
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ARTICLE 14
GENERAL
14.1 Conflicts between Documents. In the event of any conflict between the
terms of this Agreement and the terms of any other document or instrument, the
terms of this Agreement shall control and such documents and instruments shall
be deemed amended and reformed to the extent required to eliminate any such
conflict or inconsistency.
14.2 Entire Agreement; Amendments. This Agreement constitutes the entire
understanding among the parties with respect to the subject matter contained
herein and supersedes any prior understandings and agreements among them
respecting such subject matter. This Agreement may be amended, supplemented, and
terminated only by a written instrument duly executed by all of the parties.
14.3 Headings. The headings in this Agreement are for convenience of
reference only and shall not affect its interpretation.
14.4 Gender; Number. Words of gender may be read as masculine, feminine,
or neuter, as required by context. Words of number may be read as singular or
plural, as required by context.
14.5 Exhibits and Schedules. The Recitals and each Exhibit and Schedule
referred to herein is incorporated into this Agreement by such reference.
14.6 Severability. If any provision of this Agreement is held illegal,
invalid, or unenforceable, such illegality, invalidity, or unenforceability will
not affect any other provision hereof. This Agreement shall, in such
circumstances, be deemed modified to the extent necessary to render enforceable
the provisions hereof.
14.7 Notices. All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be made by:
(a) certified mail, return receipt requested; (b) Federal Express, Express Mail,
or similar overnight delivery or courier service; or (c) delivery (in person or
by facsimile or similar telecommunication transmission)
If to Medical Media or Acquisition Sub, to:
Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xx., Xxxxx X
Xxxxx, XX 00000
Fax No.: 000-000-0000
E-mail Address: xxxxxx@xxxxxxxxx.xxx
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with a copy to:
Xxxx X. Xxxxxxxx, Esq.
Xxxx Xxxx Xxxxxxx Xxxxxx & Xxxx, P.A.
000 X. Xxxxxxxx Xx.
Xxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
E-Mail Address: xxxxxxxxx@xxxxxxxx.xxx
If to Target Company or AFMN:
Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax No.: 000-000-0000
E-mail Address: XXXXXX0@xxx.xxx
with a copy to:
X. Xxxx Xxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxx, LLP
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Fax No.: 000-000-0000
E-Mail Address: xxxxxxxxxx@xxxxxxxxx.xxx
Notice of any change in any such address shall also be given in the manner set
forth above. Whenever the giving of notice is required, the giving of such
notice may be waived by the party entitled to receive such notice.
14.8 Waiver. The failure of any party to insist upon strict performance of
any of the terms or conditions of this Agreement will not constitute a waiver of
any of its rights hereunder.
14.9 Assignment. No party may assign any of its rights or delegate any of
its obligations hereunder without the prior written consent of the other
parties.
14.10 Successors and Assigns; Binding Effect. This Agreement binds, inures
to the benefit of, and is enforceable by the successors and assigns of the
parties, and does not confer any rights on any other persons or entities.
14.11 Governing Law; Venue. This Agreement shall be construed and enforced
in accordance with Florida law. Venue for any such action shall be deemed proper
in Hillsborough County, Florida. The parties agree that, irrespective of any
wording that might be construed to be in conflict with this paragraph, this
Agreement is subject to the jurisdiction of the courts in the State of Florida.
The parties to this Agreement agree that they waive any objection,
constitutional, statutory or otherwise, to a Florida court's having jurisdiction
of any dispute between or among them. By entering into this Agreement, the
parties, and each of them understand that they might be called upon to answer
and defend a claim asserted in a Florida court.
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14.12 Publicity. Prior to the Closing Date, all notices to third parties
and all other publicity relating to the transactions contemplated by this
Agreement shall be jointly planned, coordinated and agreed to by AFMN and
Medical Media. Except as may be required by law, prior to the Closing Date, none
of the parties hereto shall act unilaterally in this regard without the prior
approval of AFMN and Medical Media; provided, however, that such approval shall
not be unreasonably withheld.
14.13 Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. The execution of this Agreement by any party hereto will not become
effective until counterparts hereof have been executed by all the parties
hereto. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
14.14 Form of Consent: All consents of any kind required under this
Agreement shall be in writing. Whenever, under the terms of this Agreement,
Medical Media, Acquisition Sub, AFMN or Target Company is authorized to give
consent, such consent may be given and shall be conclusively evidenced by the
Chairman of the Board of Directors or the President of each respective
corporation giving such consent.
14.15 Attorneys' Fees and Court Actions: If a legal action is initiated by
any party to this Agreement against another, arising out of or relating to the
alleged performance or non-performance of any right or obligation established
hereunder, or any dispute concerning the same, any and all fees, costs and
expenses reasonably incurred by each prevailing party or its legal counsel in
investigating, preparing for, prosecuting, defending against, or providing
evidence, producing documents or taking any other action in respect of, such
action shall be the joint and several obligation of, and shall be paid or
reimbursed by, the nonprevailing party.
ARTICLE 15
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified
or referred to in this Section 15:
15.1 "GAAP" shall mean generally accepted United States accounting
principles.
15.2 "Ordinary Course of Business" shall mean any action taken by a person
or entity if: (a) such action is consistent with the past practices of such
person or entity and is taken in the ordinary course of the normal day-to-day
operations of such person or entity; (b) such action is not required to be
authorized by the board of directors of such person or entity (or by any person
or group of persons exercising similar authority); and (c) such action is
similar in nature and magnitude to actions customarily taken, without any
authorization by the board of directors (or by any person or group of persons
exercising similar authority), in the ordinary course of the normal day-to-day
operations of other persons or entities that are in the same line of business as
such person.
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15.3 "Securities Act" shall mean the Securities Act of 1933 or any
successor law, and regulations and rules issued pursuant to that Act or any
successor law.
15.4 "To the knowledge of" shall mean, when used with respect to any
representation or warranty or other statement in this Agreement qualified by the
knowledge of any party, the knowledge of the President of the party making such
representation or warranty unless otherwise stated in such representation or
warranty or other statement in this Agreement.
[SIGNATURE PAGES TO FOLLOW]
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In witness whereof, the parties have executed this Agreement on the date
first above written.
Medical Media Television, Inc. f/k/a
PetCARE Television Network, Inc.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx, President
AAMN Acquisition Sub, Inc.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx, President
African American Medical Network, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxxx, President
AFMN, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxxx, President
[SIGNATURE PAGE FOR THE AGREEMENT AND PLAN OF MERGER]
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EXHIBIT "A"
ARTICLES OF MERGER
OF
AAMN ACQUISITION SUB, INC.
INTO
AFRICAN AMERICAN MEDICAL NETWORK, INC.
***********************************************
AAMN ACQUISITION SUB, INC. ("Acquisition Sub") and AFRICAN AMERICAN
MEDICAL NETWORK, INC. ("Medical Network"), acting in compliance with the
provisions of ss.607.1105, Florida Statutes, hereby certify as follows:
1. A Merger Agreement (the "Merger Agreement") was approved by the board
of directors of each of Acquisition Sub and Medical Network and the sole
shareholders of Acquisition Sub and Medical Network on May 10, 2005. Pursuant to
the Merger Agreement, Acquisition Sub is to be merged into Medical Network, with
Medical Network as the surviving or resulting entity. The terms of the merger
are set forth in the copy of the Merger Agreement attached hereto as Exhibit "A"
and made a part hereof.
2. The merger shall be effective as of the date of filing these Articles
of Merger with the Florida Secretary of State.
Dated: May __, 2005. AAMN Acquisition Sub, Inc.
By:
-------------------------------------
Its:
-------------------------------------
African American Medical Network, Inc.
By:
-------------------------------------
Its:
-------------------------------------
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Exhibit "B"
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of ____________, 2005,
by and between Medical Media Television, Inc., a Florida corporation with a
mailing address of 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000 (the
"Company"), and Xxxxxx X. Xxxx, an individual maintaining a mailing address of
Xxxx Xxxxxx Xxx 00000, Xxxxxxxx, Xxxxxxx 00000 ("Employee").
WITNESSETH:
In consideration of the covenants and agreements herein contained and the
monies to be paid hereunder, the Company agrees to hire the Employee, and the
Employee agrees to work for the Company upon the following terms and conditions:
1. Duties of Employee: The Employee is employed by the Company to render
services on behalf of the Company as Vice President of Administration/Compliance
and Corporate Secretary.
2. Devotion of Time to Employment: The Employee shall devote such time and
attention to the business and affairs of the Company as is reasonably necessary
to carry out her duties hereunder, provided, however, the Employee shall devote
no less than forty (40) hours per week to her duties hereunder.
3. Compensation: For the services to be rendered by Employee under this
Agreement, the Company shall pay Employee a salary of $118,400 per year, payable
in arrears in equal semi-monthly installments of $4,933.33. Any salary increases
will be at the discretion of the Board of Directors of the Company.
The Company shall purchase at its expense, a major medical insurance policy
insuring the Employee and her dependents, which policies shall be reasonably
acceptable to the parties hereto. The Employee warrants that neither she nor the
dependents, currently or historically, have any exceptional medical problems
which would cause them to be either uninsurable or for which coverage would be
excessively expensive.
Employee shall be eligible to participate in such stock option or stock bonus
plan or similar plans as are established by the Company's Board of Directors.
4. Term of Agreement: The term of this five-year Agreement shall commence on
__________, 2005 and terminate on ________________, 2010.
5. Reimbursable Expenses: Except as herein otherwise provided, the Company shall
reimburse the Employee for all expenses, or the Employee is entitled to charge
to the Company all expenses incurred by her, in and about the course of her
employment by the Company, provided that sufficient proof is furnished to
Employer. Such expenses shall include but not be limited to:
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a) License fees, membership dues in professional organizations, and
subscriptions to professional journals.
b) The Employee's necessary travel hotel and entertainment expenses incurred
in connection with overnight, out-of-town trips for educational,
professional or other related meetings or in connection with other events
that contribute to the benefit of the Company.
c) The Employee's necessary travel and entertainment expenses in connection
with in-town events for education professional and other related meetings
or in connection with other events that contribute to the benefit of the
Company;
d) Other expense as pre-approved.
6. Vacation: The Employee shall be entitled to two weeks of fully paid vacation
per calendar year or such additional time as is authorized by the Company from
time to time.
7. Sick or Other Leave: The Employee shall be entitled to such sick or other
leave on the same basis as the Company shall establish for all its employees
holding positions and performing duties substantially similar to those performed
by Employee.
8. Termination of Agreement:
a) Termination by Company for Cause: The Company may terminate this
Agreement at any time for cause if Employee becomes unfit to properly
render services to Company hereunder because of: (i) alcohol or drug
related abuses consistent with applicable laws and Employer's procedures,
(ii) proven commission of a felony, or (iii) a material breach of this
Agreement which is not cured within sixty (60) days after written notice
is given by Company to Employee which notice shall specify in reasonable
detail the circumstances claimed to provide the basis for such
termination. Except for termination pursuant to Section 8.a.iii. hereof,
termination shall be effective upon the delivery of written notice thereof
to the Employee or at such later time as may be designated in said notice.
In the event Company shall terminate Employee pursuant to Section 8.a.iii.
hereof, said termination shall be effective sixty (60) days after written
notice is delivered to the Employee or at such later time as may be
designated in said notice provided said breach is not cured within the
sixty day period. Upon termination, the Employee shall vacate the offices
of the Company on or before such effective date. All compensation due
hereunder shall cease as of said effective date.
b) Termination by Employee for Cause: The Employee may elect to terminate
this Agreement at any time for cause provided he delivers written notice
of such intention to terminate not less than sixty (60) days prior to the
date of such termination, which notice shall specify in reasonable detail
the circumstances claimed to provide the basis for such termination. As
used in this subsection, the term for "cause" shall mean if the Company
unreasonably changes Employee's duties, responsibilities, or working
conditions or takes any other actions which impede Employee in the
performance of his duties hereunder. If the Employee terminates this
Agreement for cause, the Company shall, as severance pay, pay the Employee
an amount equal to six (6) months of his compensation then in effect.
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c) Termination by Company Not for Cause: The Company may terminate this
Agreement at any time not for cause, provided however, that the Company
shall, as severance pay, pay the Employee an amount equal to six (6)
months of her compensation then in effect.
d) Termination by Employee Not for Cause: The Employee may elect to
terminate this Agreement at any time not for cause provided she delivers
written notice of such intention to terminate not less than one month
prior to the date of such termination. All compensation shall cease as of
the effective date specified in such notice.
9. Non-Disclosure; Prohibited Activities.
a) Confidentiality; Return of Company Property. Employee agrees that
during the course of her employment with the Company and until the date ending
two (2) years following the termination of her employment, Employee will keep
confidential information confidential and, except as necessary during the course
of her employment, will not disclose any confidential information to any person
or entity or, directly or indirectly, use for her own account, any confidential
information. Upon the termination of employment, Employee promptly will supply
to the Company all property (including all files, customer lists, etc.) that has
been produced or received by Employee during her employment with the Company,
whether or not related to the confidential information. The obligations of this
Section 11.a) will be in addition to any other agreements that Employee has
entered into with the Company regarding the receipt of confidential information.
b) Non-Solicitation; Non-Disparagement. Employee will not, during the term
of the Agreement and for the two (2) year period following the termination of
the Agreement for any reason, directly or indirectly: (i) solicit for
employment, or employ any person who, at the time of such solicitation or
employment, is employed by the Company or was employed by the Company during the
twelve (12) month period prior to the solicitation or employment or induce or
attempt to induce any person to terminate employment with the Company; (ii) do
business with or solicit customers, except as necessary during the course of her
employment, or engage in any activity intended to terminate, disrupt or
interfere with the Company's relationships with its customers; and (iii) engage
in any conduct or make any statement disparaging or criticizing the Company, or
any products or services offered by the Company.
c) Non-Competition. During the term of the Agreement and for the two (2)
year period following the termination of the Agreement for any reason, the
Employee will not, directly or indirectly, alone or in conjunction with any
other person or entity, own, manage, operate or control or participate in the
ownership, management, operation or control of, or become associated, as an
employee, director, officer, advisor, agent, consultant, principal, partner,
member or independent contractor with or lender to, any person or entity engaged
in or aiding others to engage in business competitive with the Company, located
anywhere in the United States of America.
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d) Divisibility of Covenant Period. If any covenant contained in the
Agreement is held to be unreasonable, arbitrary or against public policy, such
covenant shall be considered divisible both as to time, customers, competitive
services and geographical area, such that each month within the specified period
shall be deemed a separate period of time, each customer a separate customer,
each competitive service a separate service and each geographical area a
separate geographical area, resulting in an intended requirement that the
longest lesser time and largest lesser customer base, service offering and
geographical area determined not to be unreasonable, arbitrary or against public
policy shall remain effective and be specifically enforceable against Employee.
e) Enforcement. Employee acknowledges that (i) confidential information is
a valuable asset of the Company and use of such confidential information would
allow Employee to unfairly compete against the Company, (ii) the restrictions
contained in the Agreement are reasonable in scope and are necessary to protect
the Company's legitimate interests in protecting its business, and (iii) any
violation of the restrictions contained in the Agreement will cause significant
and irreparable harm to the Company for which the Company has no adequate remedy
at law. The parties agree that damages at law, including, but not limited to,
monetary damages, will or may be an insufficient remedy to the Company and that
(in addition to any remedies that are available to the Company, all of which
shall be deemed to be cumulative and retained by the Company and not waived by
the enforcement of any remedy available hereunder) the Company shall also be
entitled to obtain injunctive relief, including but not limited to a temporary
restraining order, a temporary or preliminary injunction or a permanent
injunction, to enforce the provisions of the Agreement, as well as an equitable
accounting of and constructive trust for all profits or other benefits arising
out of or related to any such violation, all of which shall constitute rights
and remedies to which the Company may be entitled.
f) Intent of Parties; Survival. The covenants of Employee contained in the
Section 11 shall be construed as agreements independent of any other provision
of Employee's employment (including employment under the Agreement) and the
existence of any claim of the Employee against the Company shall not constitute
a defense to the enforcement by the Company of any covenant contained in the
section. The covenants contained in this Section 11 shall survive termination,
expiration, non-renewal or cancellation of the Agreement.
10. Bonus: To provide greater incentive for the Employee by rewarding her with
additional compensation, a bonus in the form of cash or stock may be paid to the
Employee after a vote of the Board of Directors in the light of the Employee's
contribution to the Company.
11. Limitations on Authority: Without the express written consent from the Board
of Directors of the Company, the Employee shall have no apparent or implied
authority to:
a) Pledge the credit of the Company other than in the ordinary course
of business.
b) Release or discharge any debt due the Company unless the Company has
received the full amount thereof other than in the ordinary course
of business.
c) Sell, mortgage, transfer or otherwise dispose of any assets of the
Company.
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12. Survival of Representations and Warranties: The warranties, representations,
covenants and agreements set forth herein shall be continuous and shall survive
the termination of this Agreement or any part hereof.
13. Entire Agreement: This Agreement contains the entire understanding between
the parties hereto with respect to the transactions contemplated hereby, and
this Agreement supersedes in all respects all written or oral understandings and
agreements heretofore existing between the parties hereto.
14. Amendment and Waiver: This Agreement may not be modified or amended except
by an instrument in writing duly executed by the parties hereto. No waiver of
compliance with any provision or condition hereof and no consent provided for
herein shall be effective unless evidenced by an instrument in writing duly
executed by the party hereto sought to be charged with such waiver or consent.
15. Notices. Notices and requests required or permitted hereunder shall be
deemed to be delivered hereunder if mailed with postage prepaid or delivered, in
writing as follows:
As to Company: As to Employee:
Medical Media Television, Inc. Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxxx, Xxxxx X XX Xxx 00000
Xxxxx, XX 33634 Xxxxxxxx, XX 00000
16. Counterparts: This Agreement may be executed in one or more counterparts,
and all counterparts shall constitute one and the same instrument.
17. Captions: Captions used herein are for convenience only and are not a part
of this Agreement and shall not be used in construing it.
18. Execution of Document: At any time and from time to time, the parties hereto
shall execute such documents as are necessary to effectuate this Agreement.
19. Arbitration: Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, or regarding the failure or refusal to perform
the whole or any part of this Agreement shall be settled by arbitration in a
mutually agreeable location, in accordance with the rules of the American
Arbitration Association, and the judgment upon the award rendered may be entered
in any court having jurisdiction hereof. Any decision made by an arbitrator or
by the arbitrators under the provision shall be enforceable as a final and
binding decision as it if were a final decision or decree of a court of
competent jurisdiction.
20. General Provisions:
a) Assignability: This Agreement shall not be assignable by any of the
parties to this Agreement without the prior written consent of all other
parties to this Agreement.
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b) Service of Process: The parties agree that the mailing of any process
shall constitute valid and lawful process against them if sent via U.S.
certified mail to the address set forth in Section 17 herein.
c) The parties further agree that the mailing of any process shall
constitute valid and lawful process against them.
d) Governing Law: The validity, construction and enforcement of, and the
remedies hereunder, this Agreement shall be governed in accordance with
the laws of the State of Florida. Venue for all purposes shall be deemed
to lie within Hillsborough County, Florida. The parties agree that the
Agreement is one for performance in Florida. The parties to the Agreement
agree that they waive any objection, constitutional, statutory or
otherwise, to a Florida court's exercise of jurisdiction over any dispute
between them and specifically consent to the jurisdiction of the Florida
courts. By entering into the Agreement, the parties, and each of them
understand that they may be called upon to answer a claim asserted in a
Florida court.
e) Severability of Provisions: The invalidity or unenforceability of any
particular provisions hereof shall not affect the remaining provisions of
this Agreement, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provisions were omitted.
f) Successors and Assigns: The rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding and enforceable
upon the respective heirs, successors, assigns and transferees of either
party.
g) Reliance: All representations and warranties contained herein, or any
certificate of other instrument delivered in connection herewith, shall be
deemed to have been relied upon by the parties hereto, notwithstanding any
independent investigation made by or on behalf of such parties.
h) Attorney's Fees: The parties hereby agree that in the event any of the
terms and conditions contained in this Agreement must be enforced by
reason of any past, existing or future delinquency of payment, or failure
of observance or of performance by any of the parties hereto, in such
instance, the defaulting party shall be liable for reasonable collection
and/or legal fees, trial and appellate levels, any expenses and legal fees
incurred, including time spent in supervision of paralegal work and
paralegal time, and any other expenses, and costs incurred in connection
with the enforcement of any available remedy.
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[SIGNATURE PAGE TO ___________EMPLOYMENT AGREEMENT]
IN WITNESS WHEREOF, the parties have executed the Agreement on the day and
year first written above.
"COMPANY"
MEDICAL MEDIA TELEVISION, INC.
By:
-------------------------------------
Xxxxxx X. Xxxxx, President
"EMPLOYEE"
-----------------------------------------
Xxxxxx X. Xxxx
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Exhibit "C"
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of ____________, 2005,
is by and between Medical Media Television, Inc., a Florida corporation with a
mailing address of 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000 (the
"Company"), and Xxxxxx X. Xxxxxxxxxxxx, an individual maintaining a mailing
address of 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 ("Employee").
WITNESSETH:
In consideration of the covenants and agreements herein contained and the
monies to be paid hereunder, the Company agrees to hire the Employee, and the
Employee agrees to work for the Company upon the following terms and conditions:
1. Duties of Employee: The Employee is employed by the Company to render
services on behalf of the Company as Senior Vice President of Finance and Chief
Financial Officer.
2. Devotion of Time to Employment: The Employee shall devote such time and
attention to the business and affairs of the Company as is reasonably necessary
to carry out his duties hereunder, provided, however, the Employee shall devote
no less than forty (40) hours per week to his duties hereunder.
3. Compensation: For the services to be rendered by Employee under this
Agreement, the Company shall pay Employee a salary of $128,400 per year, payable
in arrears in equal semi-monthly installments of $5,350.00. Any salary increases
will be at the discretion of the Board of Directors of the Company.
The Company shall purchase at its expense, a major medical insurance policy
insuring the Employee and his dependents, which policies shall be reasonably
acceptable to the parties hereto. The Employee warrants that neither he nor the
dependents, currently or historically, have any exceptional medical problems
which would cause them to be either uninsurable or for which coverage would be
excessively expensive.
Employee shall be eligible to participate in such stock option or stock bonus
plan or similar plans as are established by the Company's Board of Directors.
4. Term of Agreement: The term of this five-year Agreement shall commence on
__________, 2005 and terminate on ________________, 2010.
5. Reimbursable Expenses: Except as herein otherwise provided, the Company shall
reimburse the Employee for all expenses, or the Employee is entitled to charge
to the Company all expenses incurred by him, in and about the course of his
employment by the Company, provided that sufficient proof is furnished to
Employer. Such expenses shall include but not be limited to:
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a) License fees, membership dues in professional organizations, and
subscriptions to professional journals.
b) The Employee's necessary travel hotel and entertainment expenses
incurred in connection with overnight, out-of-town trips for
educational, professional or other related meetings or in connection
with other events that contribute to the benefit of the Company.
c) The Employee's necessary travel and entertainment expenses in
connection with in-town events for education professional and other
related meetings or in connection with other events that contribute
to the benefit of the Company;
d) Other expense as pre-approved.
6. Vacation: The Employee shall be entitled to two weeks of fully paid vacation
per calendar year or such additional time as is authorized by the Company from
time to time.
7. Sick or Other Leave: The Employee shall be entitled to such sick or other
leave on the same basis as the Company shall establish for its employees holding
positions and performing duties substantially similar to those performed by
Employee.
8. Termination of Agreement:
a) Termination by Company for Cause: The Company may terminate this
Agreement at any time for cause if Employee becomes unfit to properly
render services to Company hereunder because of: (i) alcohol or drug
related abuses consistent with applicable laws and Employer's procedures,
(ii) proven commission of a felony, or (iii) a material breach of this
Agreement which is not cured within sixty (60) days after written notice
is given by Company to Employee which notice shall specify in reasonable
detail the circumstances claimed to provide the basis for such
termination. Except for termination pursuant to Section 8.a.iii. hereof,
termination shall be effective upon the delivery of written notice thereof
to the Employee or at such later time as may be designated in said notice.
In the event Company shall terminate Employee pursuant to Section 8.a.iii.
hereof, said termination shall be effective sixty (60) days after written
notice is delivered to the Employee or at such later time as may be
designated in said notice provided said breach is not cured within the
sixty day period. Upon termination, the Employee shall vacate the offices
of the Company on or before such effective date. All compensation due
hereunder shall cease as of said effective date.
b) Termination by Employee for Cause: The Employee may elect to terminate
this Agreement at any time for cause provided he delivers written notice
of such intention to terminate not less than sixty (60) days prior to the
date of such termination, which notice shall specify in reasonable detail
the circumstances claimed to provide the basis for such termination. As
used in this subsection, the term for "cause" shall mean if the Company
unreasonably changes Employee's duties, responsibilities, or working
conditions or takes any other actions which impede Employee in the
performance of his duties hereunder. If the Employee terminates this
Agreement for cause, the Company shall, as severance pay, pay the Employee
an amount equal to six (6) months of his compensation then in effect.
-34-
c) Termination by Company Not for Cause: The Company may terminate this
Agreement at any time not for cause, provided however, that the Company
shall, as severance pay, pay the Employee an amount equal to six (6)
months of his compensation then in effect.
d) Termination by Employee Not for Cause: The Employee may elect to
terminate this Agreement at any time not for cause provided he delivers
written notice of such intention to terminate not less than one month
prior to the date of such termination. All compensation shall cease as of
the effective date specified in such notice.
9. Non-Disclosure; Prohibited Activities:
a) Confidentiality; Return of Company Property. Employee agrees that
during the course of his employment with the Company and until the date ending
two (2) years following the termination of his employment, Employee will keep
confidential information confidential and, except as necessary during the course
of his employment, will not disclose any confidential information to any person
or entity or, directly or indirectly, use for his own account, any confidential
information. Upon the termination of employment, Employee promptly will supply
to the Company all property (including all files, customer lists, etc.) that has
been produced or received by Employee during his employment with the Company,
whether or not related to the confidential information. The obligations of this
Section 11.a) will be in addition to any other agreements that Employee has
entered into with the Company regarding the receipt of confidential information.
b) Non-Solicitation; Non-Disparagement. Employee will not, during the term
of the Agreement and for the two (2) year period following the termination of
the Agreement for any reason, directly or indirectly: (i) solicit for
employment, or employ any person who, at the time of such solicitation or
employment, is employed by the Company or was employed by the Company during the
twelve (12) month period prior to the solicitation or employment or induce or
attempt to induce any person to terminate employment with the Company; (ii) do
business with or solicit customers, except as necessary during the course of his
employment, or engage in any activity intended to terminate, disrupt or
interfere with the Company's relationships with its customers; and (iii) engage
in any conduct or make any statement disparaging or criticizing the Company, or
any products or services offered by the Company.
c) Non-Competition. During the term of the Agreement and for the two (2)
year period following the termination of the Agreement for any reason, the
Employee will not, directly or indirectly, alone or in conjunction with any
other person or entity, own, manage, operate or control or participate in the
ownership, management, operation or control of, or become associated, as an
employee, director, officer, advisor, agent, consultant, principal, partner,
member or independent contractor with or lender to, any person or entity engaged
in or aiding others to engage in business competitive with the Company, located
anywhere in the United States of America.
-35-
d) Divisibility of Covenant Period. If any covenant contained in the
Agreement is held to be unreasonable, arbitrary or against public policy, such
covenant shall be considered divisible both as to time, customers, competitive
services and geographical area, such that each month within the specified period
shall be deemed a separate period of time, each customer a separate customer,
each competitive service a separate service and each geographical area a
separate geographical area, resulting in an intended requirement that the
longest lesser time and largest lesser customer base, service offering and
geographical area determined not to be unreasonable, arbitrary or against public
policy shall remain effective and be specifically enforceable against Employee.
e) Enforcement. Employee acknowledges that (i) confidential information is
a valuable asset of the Company and use of such confidential information would
allow Employee to unfairly compete against the Company, (ii) the restrictions
contained in the Agreement are reasonable in scope and are necessary to protect
the Company's legitimate interests in protecting its business, and (iii) any
violation of the restrictions contained in the Agreement will cause significant
and irreparable harm to the Company for which the Company has no adequate remedy
at law. The parties agree that damages at law, including, but not limited to,
monetary damages, will or may be an insufficient remedy to the Company and that
(in addition to any remedies that are available to the Company, all of which
shall be deemed to be cumulative and retained by the Company and not waived by
the enforcement of any remedy available hereunder) the Company shall also be
entitled to obtain injunctive relief, including but not limited to a temporary
restraining order, a temporary or preliminary injunction or a permanent
injunction, to enforce the provisions of the Agreement, as well as an equitable
accounting of and constructive trust for all profits or other benefits arising
out of or related to any such violation, all of which shall constitute rights
and remedies to which the Company may be entitled.
f) Intent of Parties; Survival. The covenants of Employee contained in the
Section 11 shall be construed as agreements independent of any other provision
of Employee's employment (including employment under the Agreement) and the
existence of any claim of the Employee against the Company shall not constitute
a defense to the enforcement by the Company of any covenant contained in the
section. The covenants contained in this Section 11 shall survive termination,
expiration, non-renewal or cancellation of the Agreement.
10. Bonus: To provide greater incentive for the Employee by rewarding him with
additional compensation, a bonus in the form of cash or stock may be paid to the
Employee after a vote of the Board of Directors in the light of the Employee's
contribution to the Company.
11. Limitations on Authority: Without the express written consent from the Board
of Directors of the Company, the Employee shall have no apparent or implied
authority to:
a) Pledge the credit of the Company other than in the ordinary course
of business.
b) Release or discharge any debt due the Company unless the Company has
received the full amount thereof other than in the ordinary course
of business.
c) Sell, mortgage, transfer or otherwise dispose of any assets of the
Company.
-36-
12. Survival of Representations and Warranties: The warranties, representations,
covenants and agreements set forth herein shall be continuous and shall survive
the termination of this Agreement or any part hereof.
13. Entire Agreement: This Agreement contains the entire understanding between
the parties hereto with respect to the transactions contemplated hereby, and
this Agreement supersedes in all respects all written or oral understandings and
agreements heretofore existing between the parties hereto.
14. Amendment and Waiver: This Agreement may not be modified or amended except
by an instrument in writing duly executed by the parties hereto. No waiver of
compliance with any provision or condition hereof and no consent provided for
herein shall be effective unless evidenced by an instrument in writing duly
executed by the party hereto sought to be charged with such waiver or consent.
15. Notices. Notices and requests required or permitted hereunder shall be
deemed to be delivered hereunder if mailed with postage prepaid or delivered, in
writing as follows:
As to Company: As to Employee:
Medical Media Television, Inc. Xxxxxx X. Xxxxxxxxxxxx
0000 Xxxxxxxx Xxxx, Xxxxx X 000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000 Xxxxxxxx, XX 00000
16. Counterparts: This Agreement may be executed in one or more counterparts,
and all counterparts shall constitute one and the same instrument.
17. Captions: Captions used herein are for convenience only and are not a part
of this Agreement and shall not be used in construing it.
18. Execution of Document: At any time and from time to time, the parties hereto
shall execute such documents as are necessary to effectuate this Agreement.
19. Arbitration: Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, or regarding the failure or refusal to perform
the whole or any part of this Agreement shall be settled by arbitration in a
mutually agreeable location, in accordance with the rules of the American
Arbitration Association, and the judgment upon the award rendered may be entered
in any court having jurisdiction hereof. Any decision made by an arbitrator or
by the arbitrators under the provision shall be enforceable as a final and
binding decision as it if were a final decision or decree of a court of
competent jurisdiction.
20. General Provisions:
a) Assignability: This Agreement shall not be assignable by any of the
parties to this Agreement without the prior written consent of all other
parties to this Agreement.
-37-
b) Service of Process: The parties agree that the mailing of any process
shall constitute valid and lawful process against them if sent via U.S.
certified mail to the address set forth in Section 17 herein.
c) Governing Law: The validity, construction and enforcement of, and the
remedies hereunder, this Agreement shall be governed in accordance with
the laws of the State of Florida. Venue for all purposes shall be deemed
to lie within Hillsborough County, Florida. The parties agree that the
Agreement is one for performance in Florida. The parties to the Agreement
agree that they waive any objection, constitutional, statutory or
otherwise, to a Florida court's exercise of jurisdiction over any dispute
between them and specifically consent to the jurisdiction of the Florida
courts. By entering into the Agreement, the parties, and each of them
understand that they may be called upon to answer a claim asserted in a
Florida court.
d) Severability of Provisions: The invalidity or unenforceability of any
particular provisions hereof shall not affect the remaining provisions of
this Agreement, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provisions were omitted.
e) Successors and Assigns: The rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding and enforceable
upon the respective heirs, successors, assigns and transferees of either
party.
f) Reliance: All representations and warranties contained herein, or any
certificate of other instrument delivered in connection herewith, shall be
deemed to have been relied upon by the parties hereto, notwithstanding any
independent investigation made by or on behalf of such parties.
g) Attorney's Fees: The parties hereby agree that in the event any of the
terms and conditions contained in this Agreement must be enforced by
reason of any past, existing or future delinquency of payment, or failure
of observance or of performance by any of the parties hereto, in such
instance, the defaulting party shall be liable for reasonable collection
and/or legal fees, trial and appellate levels, any expenses and legal fees
incurred, including time spent in supervision of paralegal work and
paralegal time, and any other expenses, and costs incurred in connection
with the enforcement of any available remedy.
-38-
[SIGNATURE PAGE TO ___________EMPLOYMENT AGREEMENT]
IN WITNESS WHEREOF, the parties have executed the Agreement on the day and
year first written above.
"COMPANY"
MEDICAL MEDIA TELEVISION, INC.
By:
-------------------------------------
Xxxxxx X. Xxxxx, President
"EMPLOYEE"
-----------------------------------------
Xxxxxx X. Xxxxxxxxxxxx