3.2.           Deliveries.

 

 

 

 

4.1.           Organization and Qualification.  The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.   Each of the Company and its Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not reasonably be expected to result in (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document or the authority or ability of the Company to perform its obligations under any Transaction Document, or (ii) a material adverse effect on the operations, results of operations, assets, business, properties or financial condition of the Company and its Subsidiaries, taken as a whole (any of (i) or (ii), a “Material Adverse Effect”).  The Company has no Subsidiaries other than as set forth on Schedule 4.1 of the Disclosure Schedule.

 

 

 

4.3.           Capitalization.  As of July 16, 2009, the authorized capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, of which 33,077,424 shares were issued and outstanding and (ii) 10,000,000 shares of Preferred Stock, $0.001 par value, of which no shares were issued and outstanding.  All such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable.  Except as disclosed on Schedule 4.3 of the Disclosure Schedule, (i) no shares of the Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding debt securities, (iii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except the Registration Rights Agreement, the Registration Rights Agreement dated November 5, 2008 between the Company and Fusion Capital Fund II, LLC, the Amended and Restated Registration Rights Agreement dated March 23, 2005 among the Company, Aspen Select Healthcare, LP, John Elliot, Steven Jones, Larry Kunert and Michael T. Dent, M.D., and the Registration Rights Agreement dated March 30, 2006 among the Company, Aspen Select Healthcare, LP and Steven C. Jones), (v) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement.  The Company has furnished or otherwise made available to Abbott true and correct copies of the Company's articles of incorporation, as amended and as in effect on the date hereof, and the Company's by-laws, as amended and as in effect on the date hereof, and copies of any documents containing the material rights of the holders of securities convertible into or exercisable for Common Stock (or forms of such documents).  Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issue thereof.

 

 

4.4.           No Conflicts.  The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated thereby do not and will not (i) conflict with or violate any material provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject, or by which any property or asset of the Company or a Subsidiary is bound or affected, except in the case of clause (ii) or (iii), such as could not reasonably be expected to result in a Material Adverse Effect.

 

4.5.           Brokers’ Fees.  The Company has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.

 

4.6.           SEC Reports.  The Company has made available to Abbott, including through the SEC EDGAR system, complete and accurate copies of each report and registration statement filed by the Company with the SEC between January 1, 2007 and the date of this Agreement (the “SEC Reports”).  At the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) each of the SEC Reports complied in all material respects with the applicable requirements of the Exchange Act or the Securities Act, as applicable.

 

4.7.           No Material Changes.  Since June 30, 2009, except as specifically disclosed in the SEC Reports, there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, except as has been reasonably cured by the Company.

 

4.8.           Litigation.  Except as disclosed on Schedule 4.8 of the Disclosure Schedule, there is no action, suit or proceeding pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Shares or (ii) could reasonably be expected to result in a Material Adverse Effect.  

 

 

 

 

 

5.1.           Authorization; Enforcement.  Abbott has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents and otherwise to carry out its obligations thereunder.  The execution and delivery of each of the Transaction Documents by Abbott and the consummation by it of the transactions contemplated thereby have been duly authorized by all necessary action on the part of Abbott.  Each Transaction Document has been (or upon delivery will have been) duly executed by Abbott and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of Abbott enforceable against Abbott in accordance with its terms except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

5.2.           No Registration.  Abbott understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Abbott's compliance with, the representations, warranties, agreements, acknowledgments and understandings of Abbott set forth herein in order to determine the availability of such exemptions and the eligibility of Abbott to acquire the Shares.

 

5.3.           Investment Intent.  Abbott is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof, and Abbott has no present intention of selling, granting any participation in, or otherwise distributing the same.  Abbott further represents that it does not have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participation to such person or entity or to any third person or entity with respect to any of the Shares.

 

5.4.           Investment Experience.  Abbott has sufficient experience in evaluating and investing in private placement transactions of securities in companies similar to the Company and acknowledges that Abbott can protect its own interests.  Abbott has such knowledge and experience in financial and business matters so that Abbott is capable of evaluating the merits and risks of its investment in the Company.

 

5.5.           Speculative Nature of Investment.  Abbott can bear the economic risk of its investment and is able, without impairing its financial condition, to hold the Shares for an indefinite period of time and to suffer a complete loss of its investment.  Abbott acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8.1.           Assignment.  This Agreement shall inure to the benefit of and be binding upon and enforceable by the parties and their successors and permitted assigns. However, neither party may assign or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party.

 

8.2.           Severability.  If any part of this Agreement is declared invalid or unenforceable by any court of competent jurisdiction, such declaration shall not affect the remainder of the Agreement and the invalidated provision shall be revised in a manner that will render such provision valid while preserving the parties’ original intent to the maximum extent possible.

 

8.3.           Entire Agreement.  This Agreement and the Registration Rights Agreement constitute the entire agreement between the parties relating to the subject matter hereof and all previous agreements or arrangements between the parties, written or oral, relating to the subject matter hereof are superseded.

 

8.4.           No Amendment.  No amendment, alteration or modification of any of the provisions of this Agreement will be binding unless made in writing and signed by each of the parties hereto.

 

8.5.           Compliance with Laws.  In performing this Agreement, each party shall comply with all applicable laws, rules and regulations and shall not be required to perform or omit to perform any act required or permitted under this Agreement if such performance or omission would violate the provisions of any such law, rule or regulation.

 

8.6.           Counterparts.  This Agreement may be executed in two counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument.

 

8.7.           Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to its conflicts of laws principles.

 

8.8.           Notices.  All notices required or permitted under this Agreement must be in writing and sent to the address or facsimile number identified below. Notices must be given: (a) by personal delivery, with receipt acknowledged; (b) by facsimile followed by hard copy delivered by the methods under (c) or (d); (c) by prepaid certified or registered mail, return receipt requested; or (d) by prepaid reputable overnight delivery service. Notices will be effective upon receipt. Either party may change its notice address by providing the other party written notice of such change. Notices shall be delivered as follows:

 

 

8.10.         Headings.  The titles of the Articles and Sections contained in this Agreement are for convenience only and shall not be considered in construing this Agreement.

 

8.11.         Parties in Interest.  Nothing in this Agreement is intended to provide any rights or remedies to any Person other than the parties hereto.

 

8.12.         Waiver.  No failure on the part of either party hereto to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of either party hereto in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver thereof; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.