STOCK PURCHASE AGREEMENT

 

 

THIS STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of October 22, 2007, is made by and between Longfoot Communications Corp. a Delaware corporation (the “Company”), the Investors listed on Exhibit A hereto (each, an “Investor” and collectively, the “Investors”) and Sim Farar, Justin Farar, Joel Farar, PP6O, LLC, Gusmail, LLC and 32 Mayall, LLC (collectively, the “Existing Stockholders”).

 

 

A.           The Investors desire to acquire from the Company, and the Company desires to issue and sell to the Investors, in the manner and on the terms and conditions hereinafter set forth, shares of Common Stock of the Company as set forth herein (collectively, the “Shares”).

 

B.           In connection with the Investors’ purchase of the Shares, the Company and the Investors desire to establish certain rights and obligations between themselves.

 

 

NOW, THEREFORE, in consideration of these premises, the mutual covenants and agreements herein contained and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and the Investors hereby agree as follows:

 

SECTION I    DEFINITIONS.

 

The following terms when used in this Agreement have the following respective meanings:

 

“1933 Act” means the Securities Act of 1933, as amended.

 

“1934 Act” means the Securities Exchange Act of 1934, as amended.

 

“Affiliate” means with respect to any Person, any (i) officer, director, partner or holder of more than 10% of the outstanding shares or equity interests of such Person, (ii) any Relation of such Person, or (iii) any other Person which directly or indirectly controls, is controlled by, or is under common control with such Person.  A Person will be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the “Controlled” Person, whether through ownership of voting securities, by contract, or otherwise.

 

“Business Day” means a day other than Saturday, Sunday or statutory holiday in the State of New York and in the event that any action to be taken hereunder falls on a day which is not a Business Day, then such action shall be taken on the next succeeding Business Day.

 

“Businesses” has the meaning set forth in Section 4.1(k).

 

“Bylaws” means the Bylaws of the Company.

 

“Certificate of Incorporation” means the Certificate of Incorporation of the Company, as amended and restated and as on file with the Secretary of State of the State of Delaware on the date of this Agreement.

 

“Closing Date” has the meaning set forth in Section 3.1 hereof.

 

“Closing” has the meaning set forth in Section 3.1 hereof.

 

“Common Stock” means shares of the common stock, $0.001 par value, of the Company.

 

“Company Stockholder Approval” means the approval by the requisite vote of the stockholders of the Company of the Company Stockholder Proposals.

 

“Company Stockholder Proposals” means  (i) the consummation of the Divestment, (ii) the consummation of the Reverse Split, (iii) the proposed amendment to the Certificate of Incorporation of the Company (A) increasing the number of shares of Common Stock that the Company shall be authorized to issue to 225 million shares of common stock, $0.001 par value, of the Company and 25 million shares of preferred stock, $0.001 par value, of the Company, (B) providing for indemnification of and advancement of expenses for officers and directors to the maximum extent permitted by applicable law, (C) providing that the size of the Board shall be determined as provided in the Company’s bylaws, and (D) such other changes reasonably satisfactory to the Investors and (iv) adoption of new bylaws in a form reasonably satisfactory to the Investors.

 

“Divestment” has the meaning set forth in Section 5.3.

 

“End Date” shall have the meaning as used in Section 7.1(b)(i).

 

“Existing Stockholders” has the meaning set forth in the introductory paragraph hereto.

 

“GAAP” means generally accepted accounting principles.

 

“Governmental Authority” means the United States, any state or municipality, the government of any foreign country, any subdivision of any of the foregoing, or any authority, department, commission, board, bureau, agency, court, or instrumentality of any of the foregoing.

 

“Knowledge” as to the Company means the actual knowledge of the officers of the Company after due and diligence inquiry of the employees or agents of the Company reasonably believed to have knowledge of such matters.

 

“Lien” means any mortgage, lien, pledge, security interest, easement, conditional sale or other title retention agreement, or other encumbrance of any kind.

 

“Material Adverse Effect” means a change or effect in the condition (financial or otherwise), properties, assets, liabilities, rights, operations or business of the Company which change or effect, individually or in the aggregate, could reasonably be expected to be materially adverse to such condition, properties, assets, liabilities, rights, operations or business.

 

“Person” means an individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, or Governmental Authority.

 

“Proxy Statement” means the proxy statement or information statement for the Stockholders Meeting, together with any amendments or supplements thereof.

 

“Purchase Price” means the cash and cash equivalents of the Company at the Closing Date after deducting any and all liabilities, including liabilities related in any manner to (i)  the Stockholders Consent, (ii) soliciting approval of the Company Stockholder Proposals and (iii) the costs and expenses of the transactions contemplated hereby.

 

“Reverse Split” means a one-for-three (1:3) combination, consolidation or “reverse split” of the currently outstanding shares of the Company so that approximately 1,631,616 shares of common stock shall thereupon be outstanding.

 

“SEC” means the Securities and Exchange Commission.

 

“SEC Filings” has the meaning set forth in Section 4.2(f) hereof.

 

“Shares” shall have the meaning set forth in the recitals hereto.

 

“Stockholders” mean the record holders of shares of capital stock of the Company.

 

“Stockholders Consent” means the written consent  of the Existing Stockholders and other stockholders of the Company to approve and effect the  Company Stockholder Approval.

 

SECTION II    PURCHASE AND SALE OF COMMON STOCK.

 

2.1  Issuance and Purchase of Common Stock   At the Closing and after giving effect to the Reverse Split, based upon the representations, warranties, covenants and agreements of the parties set forth in this Agreement, the Company shall issue and sell to the Investors, and the Investors shall purchase from the Company, an aggregate of 1,698,212 Shares, which are being allocated among the Investors as provided in Exhibit A attached hereto.  At the Closing, the Company will issue and deliver to each of the Investors a stock certificate registered in the name of each such Investor representing the number of Shares set forth opposite such Investor’s name on Exhibit A, against payment of the percentage of the Purchase Price set forth opposite such Investor’s name on Exhibit A.  At the Closing, no more than 3,329,828 shares of common stock shall be issued and outstanding. The Shares to be issued to the Investors will equal, in the aggregate, fifty-one percent (51%) of the outstanding capital stock of the Company on the Closing Date, on a fully-diluted basis, after giving effect to the exercise of all exercisable instruments and securities.  The Company represents and warrants that without limitation, this calculation takes into account any shares of Common Stock issuable upon the exercise of outstanding options or warrants to purchase shares of Common Stock and that no convertible securities are issued and outstanding.

 

2.2  Payment for Common Stock   At the Closing Date, for all of the Shares, the Investors shall pay to the Company, in the aggregate, the Purchase Price.  The Investors will pay the Purchase Price by wire transfers of immediately available funds to an account designated in writing by the Company.

 

SECTION III    THE CLOSING.

 

3.1  Closing   The closing of the issuance and sale of the Shares pursuant to Section 2.1 hereof and certain of the other transactions contemplated hereby (the “Closing”) will take place at the offices of the Company located at 9229 Sunset Blvd., Suite 810, West Hollywood. California 90069 on the next business day (or such later date as the parties hereto may agree) following the satisfaction or waiver of the conditions set forth in Section VI hereof (the “Closing Date”), or at such other time or place as the parties mutually agree.

 

3.2  Deliveries by the Company   At the Closing, the Company shall deliver or cause to be delivered to the Investors the following items (in addition to any other items required to be delivered to the Investors pursuant to any other provision of this Agreement):

 

(a)  certificates representing the Shares being issued and sold by the Company to the Investors pursuant to Section 2.1 hereof, duly recorded on the books of the Company in the names of each of the Investors as set forth on Exhibit A;

 

(b)  a certificate of the Secretary of State of the State of Delaware as to the good standing of the Company dated within five days prior to the Closing Date;

 

(c)  resignations of such of the current directors and officers  from their positions as directors and officers of the Company as requested by the Investors;

 

(d)  Duly executed corporate actions fixing the size of the Board at a number satisfactory to the Investors, accepting any resignations pursuant to Section 3.2(c) and appointing persons reasonably satisfactory to the Investors as directors and officers of the Company; and

 

(e)  Evidence satisfactory to the Investors that the Company Stockholder Proposals have been approved and as to the amount of cash, cash equivalents and liabilities of the Company at the Closing.

 

3.3  Deliveries by the Investors   At the Closing, each of the Investors shall deliver or cause to be delivered to the Company (in addition to any other items required to be delivered to the Company pursuant to any other provision of this Agreement) payment by wire transfer of immediately available funds necessary to satisfy each Investor’s obligations to the Company under Section 2.2 hereof and to result in payment to the Company of the Purchase Price.

 

SECTION IV    REPRESENTATIONS AND WARRANTIES.

 

4.1  Representations and Warranties of the Company   In order to induce each of the Investors to purchase the Common Stock that it is purchasing hereunder, the Company and the Existing Stockholders represent and warrant to the Investors that:

 

(a)  Organization and Standing.  The Company is duly incorporated and validly existing under the laws of the State of Delaware, and has all requisite corporate power and authority to own or lease its properties and assets and to conduct its business as it is presently being conducted.  The Company does not own any equity interest, directly or indirectly, in any other Person or business enterprise.  The Company is qualified to do business and is in good standing in each jurisdiction in which the failure to so qualify could reasonably be expected to have a material adverse effect upon its assets, properties, financial condition, results of operations or business.  The Company has one subsidiary.

 

(b)  Capitalization.  At the date of this Agreement and before giving effect to the Reverse Split, the authorized capital stock of the Company consists of (i) 50,000,000 shares of Common Stock, of which 4,894,848 shares are issued and outstanding, and (ii) 1,000,000 shares of Preferred Stock, of which no shares are issued and outstanding. The Company has no other equity securities of any class issued, reserved for issuance or outstanding.  Except as set forth below, there are (x) no outstanding options, offers, warrants, conversion rights, contracts or other rights to subscribe for or to purchase from the Company, or agreements obligating the Company to issue, transfer, or sell (whether formal or informal, written or oral, firm or contingent), shares of capital stock or other securities of the Company (whether debt, equity, or a combination thereof) or obligating the Company to grant, extend, or enter into any such agreement and (y) no agreements or other understandings (whether formal or informal, written or oral, firm or contingent) which require or may require the Company to repurchase any of its Common Stock.  There are no preemptive or similar rights with respect to the Company’s capital stock.  There are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders).  

 

The Company is not a party to, and to the Knowledge of the Company and the Existing Stockholders, no Stockholder is a party to, any voting agreements, voting trusts, proxies or any other agreements, instruments or understandings with respect to the voting of any shares of the capital stock of the Company, or any agreement with respect to the transferability, purchase or redemption of any shares of the capital stock of the Company.  The issue and sale of the Shares to the Investors does not obligate the Company to issue any shares of capital stock or other securities to any Person (other than the Investors) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities.  The outstanding Common Stock is all duly and validly authorized and issued, fully paid and nonassessable. As of the date hereof, there are:  no shares of common stock reserved for issuance upon exercise of outstanding stock options and no shares reserved for issuance upon exercise of outstanding warrants.  The Company does not have issued or outstanding any convertible securities.  Upon issuance of the Shares to the Investors at the Closing, the Investors shall own 51% of the issued and outstanding Shares of the Company on a fully-diluted basis.

 

(c)  Capacity of the Company and the Existing Stockholders; Authorization; Execution of Agreements.  Each of the Company and each of the Existing Stockholders has all requisite power, authority and capacity to enter into this Agreement and to perform the transactions and obligations to be performed by it hereunder.  Subject to the Company Stockholder Approval as contemplated by this Agreement, the execution and delivery of this Agreement by the Company, and the performance by the Company of the transactions and obligations contemplated hereby, including, without limitation, the issuance and delivery of the Shares to the Investors hereunder, have been duly authorized by all requisite action of the Company.  This Agreement has been duly executed and delivered by a duly authorized officer of the Company and, where applicable, the Existing Stockholders, and constitutes a valid and legally binding agreement of the Company and each of the Existing Stockholders, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of the United States (both state and federal), affecting the enforcement of creditors’ rights or remedies in general from time to time in effect and the exercise by courts of equity powers or their application of principles of public policy.

 

(d)  Status of Shares.  The Shares being issued and purchased hereunder, all of which are to be issued by the Company to the Investors and paid for by the Investors pursuant to the terms of this Agreement, are and will be, when issued, (i) duly authorized, validly issued, fully paid and nonassessable, (ii) issued in compliance with all applicable United States federal and state securities laws, (iii) subject to restrictions under this Agreement, and applicable United States federal and state securities laws, have the rights and preferences set forth in the Certificate of Incorporation, and (iv) free and clear of all Liens.

 

(e)  Conflicts; Defaults.  Subject to the Company Stockholder Approval, as contemplated by this Agreement, the execution and delivery of this Agreement by the Company and each of the Existing Stockholders and the performance by the Company and each of the Existing Stockholders of the transactions and obligations contemplated hereby and thereby to be performed by it do not (i) violate, conflict with, or constitute a default under any of the terms or provisions of, the Certificate of Incorporation, the Bylaws, or any provisions of, or result in the acceleration of any obligation under, any contract, note, debt instrument, security agreement or other instrument to which the Company or any of the Existing Stockholders is a party or by which the Company or any of the Existing Stockholders, or any of its assets is bound; (ii) result in the creation or imposition of any Liens or claims upon the Company’s assets or upon any of the shares of capital stock of the Company; (iii) constitute a violation of any law, statute, judgment, decree, order, rule, or regulation of a Governmental Authority applicable to the Company or any of the Existing Stockholders; or (iv) constitute an event which, after notice or lapse of time or both, would result in any of the foregoing.  The Company is not presently in violation of its Certificate of Incorporation or Bylaws.

 

(f)  SEC Filings.  The SEC Filings, when filed, complied in all material respects with the requirements of Section 15(d) of the 1934 Act, did not, as of the dates when filed, contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The SEC Filings are all of the filings that the Company was required to file with the SEC during the periods covered thereby and all such filings were made on a timely basis when due.  The financial statements of the Company included in the SEC Filings complied in all material respects with the rules and regulations of the SEC with respect thereto as in effect at the time of filing.  Such financial statements have been prepared in accordance with U.S. GAAP applied on a consistent basis during the periods covered by such financial statements, except as may be otherwise specified in such financial statements or the notes thereto, and fairly present in all material respects the financial position of the Company as of and for the dates thereof and for the periods indicated, and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.  All material agreements to which the Company is a party or to which the property or assets of the Company are subject and which are required to be disclosed pursuant to the 1934 Act are included as part of or specifically identified in the SEC Filings.

 

(g)  Material Changes. Since the date of the latest audited financial statements included within the SEC Filings, except as specifically disclosed in the SEC Filings, (i) there has been no event that could result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of the business of a shell corporation consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to U.S. GAAP as required to be disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting or the identity of its auditors, except as disclosed in its SEC Filings (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or affiliate, except 129,870 shares issued to PP6O, LLC on August 23, 2007 and 259,740 shares issued to PP6O, LLC on October 4, 2007, in each instance for valid consideration consisting of conversion of debt.

 

(h)  Absence of Litigation.  There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company.

 

(i)  Brokers, Finders, and Agents.  The Company is not, directly or indirectly, obligated to anyone acting as broker, finder or in any other similar capacity in connection with this Agreement or the transactions contemplated hereby.  No Person has or, immediately following the consummation of the transactions contemplated by this Agreement, will have, any right, interest or valid claim against the Company or the Investors for any commission, fee or other compensation as a finder or broker in connection with the transactions contemplated by this Agreement, nor are there any brokers’ or finders’ fees or any payments or promises of payment of similar nature, however characterized, that have been paid or that are or may become payable in connection with the transactions contemplated by this Agreement, as a result of any agreement or arrangement made by the Company.

 

(j)  Application of Takeover Protections.  Except as provided in Delaware General Corporation Law Section 203 (“GCL 203”), there is no control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Certificate of Incorporation or Bylaws that is or could become applicable to any of the Investors as a result of the Investors and the Company fulfilling their obligations or exercising their rights under this Agreement, including without limitation, as a result of the Company’s issuance of the Shares and the Investors’ ownership of the Shares.

 

(k)  Absence of Businesses.  Neither the Company nor any subsidiary is engaged in any business other than the businesses relating to the construction, development, acquisition, management and operation of low power television (“LPTV”) stations and AM/FM stations in the United States (the “Businesses”), which Businesses shall be divested by December 7, 2007, as provided in Section 5.3 and neither the Company nor any subsidiary has any liability or obligation of any kind or nature other than liabilities or obligations that ordinarily and customarily directly relate to the maintenance of a public company or liabilities and obligations of the Businesses that will be divested by the Company and assumed by the Existing Stockholders or a third party satisfactory to the Investors pursuant to Section 5.3.  Such divestment shall be in compliance with all applicable laws, rules and regulations

 

(l)  Disclosure.  All disclosure materials provided to the Investors regarding the Company, its business and the transactions contemplated hereby, including the Schedules to this Agreement, furnished by or on behalf of the Company are true and correct in all material respects and as otherwise contemplated in this Agreement and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not misleading.  No event or circumstance has occurred or information exists with respect to the Company or its business, properties, operations or financial condition, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company, but which has not been so publicly announced or disclosed.  The Company acknowledges and agrees that no Investor makes or has made (i) any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 4.2 or (ii) any statement, commitment or promise to the Company or any of its representatives which is or was an inducement to the Company to enter into this Agreement.

 

4.2  Representations and Warranties of the Investors   Each of the Investors hereby severally, but not jointly, represents and warrants to the Company that:

 

(a)  Investment Intent.  The Shares being purchased by the Investor hereunder is being purchased for its own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the 1933 Act.  The Investor understands that such Shares have not been registered under the 1933 Act by reason of their issuance in a transaction exempt from the registration and prospectus delivery requirements of the 1933 Act pursuant to Section 4(2) thereof and/or the provisions of Rule 506 of Regulation D promulgated thereunder, and under the securities laws of applicable states and agrees to deliver to the Company, if requested by the Company, an investment letter in customary form.  The Investor further understands that the certificates representing such Shares bear a legend substantially similar to the following and agrees that it will hold such Shares subject thereto:

 

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID ACTS AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE COMPANY SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE COMPANY (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY).

 

(b)  Capacity of the Investor; Execution of Agreement.  Such Investor has all requisite power, authority, and capacity to enter into this Agreement and to perform the transactions and obligations to be performed by it hereunder. The execution and delivery of this Agreement, and the performance by the Investor of the transactions and obligations contemplated hereby have been duly authorized by all requisite corporate or individual, as the case may be, action of the Investor.  This Agreement has been duly executed and delivered by the Investor and constitutes a valid and legally binding agreement of the Investor, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws, both state and federal, affecting the enforcement of creditors’ rights or remedies in general from time to time in effect and the exercise by courts of equity powers or their application of principles of public policy.

 

(c)  Accredited Investor.  Each Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the 1933 Act.

 

(d)  Suitability and Sophistication.  The Investor has (i) such knowledge and experience in financial and business matters that it is capable of independently evaluating the risks and merits of purchasing the Shares it is purchasing; (ii) independently evaluated the risks and merits of purchasing such Shares and has independently determined that the Shares are a suitable investment for it; and (iii) sufficient financial resources to bear the loss of its entire investment in such Shares.  The Investor has had an opportunity to review: the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 and the Company’s quarterly reports on Form 10-Q for the periods ended March 31, 2007 and June 30, 2007 and other filings made by the Company under Section 13(a) of the Exchange Act since January 1, 2004 or such later time as the Company commenced such filings (the “SEC Filings”).

 

(e)  Brokers, Finders, and Agents.  The Investor is not, directly or indirectly, obligated to anyone acting as broker, finder, or in any other similar capacity in connection with this Agreement or the transactions contemplated hereby.  No Person has or, immediately following the consummation of the transactions contemplated by this Agreement, will have, any right, interest or valid claim against the Company or the Investor for any commission, fee or other compensation as a finder or broker in connection with the transactions contemplated by this Agreement, nor are there any brokers’ or finders’ fees or any payments or promises of payment of similar nature, however characterized, that have been paid or that are or may become payable in connection with the transactions contemplated by this Agreement, as a result of any agreement or arrangement made by the Investor.

 

(f)  Nationality; Residence.  Each Investor is a citizen of the United States of America and a resident of, or organized within, the state set forth underneath such Investor’s name on Exhibit A attached to this Agreement.

 

4.3  Rule 144   Each the Investor acknowledges that the Shares it will be purchasing must be held indefinitely unless subsequently registered under the 1933 Act or unless an exemption from such registration is available.  Each of the Investors is aware of the provisions of Rule 144 promulgated under the 1933 Act which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things, the availability of certain current public information about the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a “broker’s transaction” or in transactions directly with a “market maker” and the number of shares being sold during any three-month period not exceeding specified limitations.

 

SECTION V    COVENANTS OF THE PARTIES.

 

5.1  Commercially Reasonable Efforts   Subject to the terms and conditions hereof, each party will use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement as promptly as practicable after the date hereof, including (i) preparing and filing as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, tax ruling requests and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, tax rulings and authorizations necessary or advisable to be obtained from any Person and/or any Governmental Authority in order to consummate any of the transactions contemplated by this Agreement, (ii) executing and delivering such other documents, instruments and agreements as any party hereto shall reasonably request, and (iii) taking all reasonable steps as may be necessary to obtain all such material consents, waivers, licenses, registrations, permits, authorizations, tax rulings, orders and approvals.  In furtherance and not in limitation of the foregoing, each party hereto agrees to vigorously defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any Governmental Authority vacated or reversed.  Notwithstanding the foregoing, in no event shall any party have any obligation, in order to consummate the transactions contemplated hereby, to (a) take any action(s) that would result in a material adverse change in the benefits to the Company on the one hand or to the Investors on the other of this Agreement, or (b) dispose of any material assets or make any material change in its business other than as contemplated by this Agreement, or (c) expend any material amount of funds or otherwise incur any material burden other than those contemplated by this Agreement.

 

5.2  Certain Filings; Cooperation in Receipt of Consents.

 

(a)  The Company and the Investors shall cooperate with one another in (i) determining whether any other action by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated hereby, and (ii) taking or seeking any such other actions, consents, approvals or waivers or making any such filings, furnishing information required in connection therewith.  Each party shall permit the other party to review any communication given by it to, and shall consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the applicable Governmental Authority or other Person, give the other party the opportunity to attend and participate in such meetings and conferences, in each case in connection with the transactions contemplated hereby.

 

(b)  The Company shall timely file all reports required to be filed by it pursuant to Section 13(a) of the 1934 Act and all other documents required to be filed by it with the SEC under the 1933 Act or the 1934 Act from the date of this Agreement to the Closing.

 

5.3  Divestment of Businesses   Each of the Company and the Existing Stockholders covenants and agrees that by December 7, 2007, the Company will, and that they will cause the Company to, divest itself of the Businesses.  The Company and the Existing Stockholders also covenant and agree that, by December 7, 2007, the Company will, and that they will cause the Company to, also divest itself of any and all assets and liabilities related in any manner to the Businesses, including, without limitation, all shares of capital stock of Village Broadcasting Corp., a Delaware corporation (“VBC”), provided, that in no event shall the Company transfer any cash or cash equivalents of VBC (other than accounts receivable related to the Businesses) (the transactions in the preceding two sentences are hereinafter referred to collectively as the “Divestment”).  Notwithstanding the foregoing, the terms of the Divestment must be satisfactory to and approved by the stockholders of the Company as provided in Section 5.2.  

 

In addition, any and all such liabilities and obligations being divested shall be assumed by the Existing Stockholders or a third party and the Company shall be released from all such liabilities and obligations, and the Divestment shall be in compliance with any and all applicable laws, rules and regulations.

 

5.4  Stockholders Consent   The Company shall cause a meeting of its stockholders to be duly called and held, or the Existing Stockholders shall execute the Stockholders Consent, for the purposes of obtaining the Company Stockholder Approval as soon as reasonably practicable.  Except as provided in the next sentence, (a) the Board of Directors of the Company shall recommend approval and adoption by its stockholders of the Company Stockholder Proposals (the “Company Recommendation”), and (b) the Company shall use commercially reasonable efforts to solicit the Company Stockholder Approval.  The Board of Directors of the Company shall be permitted to (i) not recommend to the Company’s Stockholders that they give the Company Stockholder Approval, or (ii) withdraw or modify in a manner materially adverse to the Investors the Company Recommendation, only if the Board of Directors by a majority vote determines in its good faith judgment (after consultation with outside legal counsel) that it is necessary to withdraw or modify the Company Recommendation to comply with its fiduciary duties under applicable law.

 

5.5  Public Announcements   The parties shall consult with each other before issuing, and provide each other a reasonable opportunity to review and comment upon, any press release or public statement with respect to this Agreement and the transactions contemplated hereby and, except as may be required by applicable law, will not issue any such press release or make any such public statement prior to such consultation.

 

5.6  Access to Information; Notification of Certain Matters.

 

(a)  From the date hereof to the Closing and subject to applicable law, the Company shall (i) give to each of the Investors, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of the Company, and (ii) furnish or make available to each of the Investors, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as such Persons may reasonably request.

 

(b)  Each party hereto shall give notice to each other party hereto, as promptly as practicable after the event giving rise to the requirement of such notice, of:

 

(i)  any communication received by such party from, or given by such party to, any Governmental Authority in connection with any of the transactions contemplated hereby;

 

(ii)  any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; and

 

(iii)  any actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting such party or any of its Affiliates that, if pending on the date of this Agreement, would have been required to have been disclosed, or that relate to the consummation of the transactions contemplated by this Agreement; provided, however, that the delivery of any notice pursuant to this Section 5.6(b) shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice.

 

5.7  Anti-Takeover Provisions   The Company’s Board of Directors will take such action as may be necessary to waive the applicability of the provisions of GCL 203 to the transactions contemplated by this Agreement.

 

5.8  Board of Directors   The Company agrees to set the size of its Board of Directors at five members, appoint three designees of Phillip Frost, M.D. to the Board at Closing and obtain any necessary resignations from members of the Board so that immediately after the Closing the Board of Directors shall consist of five members.

 

5.9  Interim Operations of the Company   During the period from the date of this Agreement to the Closing, the Company shall conduct its business only in the ordinary course of business consistent with past practice, except to the extent otherwise necessary to comply with the provisions hereof and with applicable laws and regulations.  Additionally, during the period from the date of this Agreement to the Closing, except as required hereby in connection with this Agreement, the Company shall not, without the prior consent of a majority in interest of the Investors, (i) amend or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell or authorize for issuance or sale (including, but not limited to, by way of stock split or dividend), shares of any class of its securities or enter into any agreements or commitments of any character obligating it to issue such securities, other than in connection with the exercise of outstanding warrants or outstanding stock options granted to directors, officers or employees of the Company prior to the date of this Agreement; (iii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) with respect to its common stock, (iv) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, (v) enter into any material contract or agreement or material transaction or make any material capital expenditure other than those relating to the transactions contemplated by this Agreement, (vi) create, incur, assume, maintain or permit to exist any indebtedness except as otherwise incurred in the ordinary course of business, consistent with past practice, (vii) pay, discharge or satisfy claims or liabilities (absolute, accrued, contingent or otherwise) other than in the ordinary course of business consistent with past practice, (viii) cancel any material debts or waive any material claims or rights, (ix) make any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other commitments of any other Person, (xi) grant any increase in the compensation payable or to become payable by the Company to any of its employees, officers or directors or any increase in any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such employees, officers or directors, (xii) enter into any employment contract or grant any severance or termination pay or make any such payment with or to any officer, director or employee of the Company, (xiii) alter in any material way the manner of keeping the books, accounts or records of the Company or the accounting practices therein reflected other than alterations or changes required by GAAP or applicable law, (xiv) enter into any indemnification, contribution or similar contract pursuant to which the Company may be required to indemnify any other Person or make contributions to any other Person, (xv) amend or terminate any existing contracts in any manner that would result in any material liability to the Company for or on account of such amendment or termination or (xvi) or change any existing or adopt any new tax accounting principle, method of accounting or tax election except as provided herein or agreed to in writing by the Investors.

 

5.10  Indemnification   Each of the Existing Stockholders hereby agrees to indemnify and hold harmless each of the Investors and their respective officers, directors, stockholders, members, partners, agents and representatives from and against any and all claims, demands, losses, damages, expenses or liabilities (including reasonable attorneys’ fees) due to or arising out of a material breach of any representation, warranty, covenant, agreement or obligation provided by the Company or the Existing Stockholders hereunder or in any other certificate, instrument or document contemplated hereby or thereby or (ii) any breach of Section 5.3 or any liabilities or obligations of the Company or any subsidiary of any kind or nature whatsoever relating to the Businesses, the Divestment (including any claims related to divestment to affiliates or the exercise of fiduciary duties) or any other business operated by the Company or any subsidiary prior to the Closing as provided in Section 5.3, but excluding only those liabilities and obligations that ordinarily and customarily directly relate to the maintenance of a public shell company.

 

5.11  No Further Reverse Splits. Each Party covenants that for a period of twenty-four (24) full months following the Closing to take no action to effect or permit any further reverse splits, reverse combinations or reverse consolidations of the outstanding shares of the Company.

 

SECTION VI    CONDITIONS.

 

6.1  Conditions to the Obligations of Each Party   The obligations of the Company and the Investors to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following conditions:

 

(a)  The Company Stockholder Approval shall have been obtained and the actions referred to therein shall have been consummated;

 

(b)  No Governmental Authority of competent authority or jurisdiction shall have issued any order, injunction or decree, or taken any other action, that is in effect and restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby; and

 

(c)  The parties shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by this Agreement.

 

6.2  Conditions to the Obligations of the Company   The obligations of the Company to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following further conditions:

 

(a)  The Investors shall have performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Closing;

 

(b)  The representations and warranties of each of the Investors contained in this Agreement shall have been true and correct when made and at and as of the time of the Closing as if made at and as of such time (except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case it shall be true and correct as of such date); and

 

(c)  The Company shall have received a certificate signed by each of the Investors to the foregoing effect.

 

6.3  Conditions to the Obligations of  the Investors   The obligations of the Investors to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following further conditions:

 

(a)  The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing;

 

(b)  The representations and warranties of the Company contained in this Agreement shall have been true and correct when made and at and as of the time of the Closing as if made at and as of such time (except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case it shall be true and correct as of such date);

 

(c)  The Investors shall have received a certificate signed by the president or acting president of the Company to the foregoing effect; and

 

(d)  The Shares being sold to the Investors hereunder for the Purchase Price shall represent 51% of the issued and outstanding shares of capital stock of the Company on a fully-diluted basis.

 

SECTION VII    TERMINATION.

 

7.1  Termination   This Agreement may be terminated at any time prior to the Closing by written notice by the terminating party to the other party (except if such termination is pursuant to Section 7.1(a)), whether before or after the Company Stockholder Approval shall have been obtained.

 

(a)  by mutual written agreement of the Investors and the Company;

 

(b)  by either the Investors or the Company, if

 

(i)  the transactions contemplated by this Agreement shall not have been consummated by December 7, 2007 (the “End Date”); provided, however, that the right to terminate this Agreement under this Section 7.1(b)(i) shall not be available to any party whose breach of any provision of or whose failure to perform any obligation under this Agreement has been the cause of, or has resulted in, the failure of the transactions to occur on or before the End Date; or

 

(ii)  a judgment, injunction, order or decree of any Governmental Authority having competent jurisdiction enjoining the Company or the Investors from consummating the transactions contemplated by this Agreement is entered and such judgment, injunction, judgment or order shall have become final and nonappealable and, prior to such termination, the parties shall have used their respective commercially reasonable efforts to resist, resolve or lift, as applicable, such judgment, injunction, order or decree; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to any party whose breach of any provision of or whose failure to perform any obligation under this Agreement has been the cause of such judgment, injunction, order or decree.

 

(iii)  at the Company Stockholder Meeting (including any adjournment or postponement thereof), the Company Stockholder Approval shall not have been obtained; or

 

(c)  by the Company:

 

(i)  if a breach of or failure to perform any representation, warranty, covenant or agreement on the part of the Investors  set forth in this Agreement shall have occurred which would cause the conditions set forth in Sections 6.2(a), 6.2(b) or 6.2(c) not to be satisfied, and any such condition shall be incapable of being satisfied by the End Date or such breach or failure to perform has not been cured within ten days after notice of such breach or failure to perform has been given by the Company to the Investors.

 

(d)  by the Investors:

 

(i)  if a breach of or failure to perform any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement shall have occurred which would cause the conditions set forth in Sections 6.3(a), 6.3(b), 6.3(c) or 6.3(d) not to be satisfied, and any such condition is incapable of being satisfied by the End Date or such breach or failure to perform has not been cured within ten days after notice of such breach or failure to perform has been given by the Investors to the Company.

 

7.2  Effect of Termination   If this Agreement is terminated pursuant to Section 7.1, except as set forth in Section 7.3 below, there shall be no liability or obligation on the part of the Investors or the Company, or any of their respective officers, directors, shareholders, agents or Affiliates, except that the provisions of this Section 7.2, Section 7.3 and Section VIII of this Agreement shall remain in full force and effect and survive any termination of this Agreement and except that, notwithstanding anything to the contrary contained in this Agreement, neither the Company nor the Investors shall be relieved of or released from any liabilities or damages arising out of its material breach of or material failure to perform its obligations under this Agreement.

 

7.3  Expenses.   Whether or not the transactions contemplated by this Agreement are consummated, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.

 

SECTION VIII                                MISCELLANEOUS.

 

8.1  Waivers and Amendments   This Agreement may be amended or modified in whole or in part only by a writing which makes reference to this Agreement executed by the Investors, the Company and the Existing Stockholders.  The obligations of any party hereunder may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the party claimed to have given the waiver; provided, however, that any waiver by any party of any violation of, breach of, or default under any provision of this Agreement or any other agreement provided for herein shall not be construed as, or constitute, a continuing waiver of such provision, or waiver of any other violation of, breach of or default under any other provision of this Agreement or any other agreement provided for herein.

 

8.2  Entire Agreement   This Agreement (together with the Schedules and the Exhibits hereto) and the other agreements and instruments expressly provided for herein, together set forth the entire understanding of the parties hereto and supersede in their entirety all prior contracts, agreements, arrangements, communications, discussions, representations, and warranties, whether oral or written, among the parties with respect to the subject matter hereof.

 

8.3  Governing Law   This Agreement shall in all respects be governed by and construed in accordance with the internal substantive laws of the State of Delaware without giving effect to the principles of conflicts of law thereof.

 

8.4  Public Announcements   The parties shall consult with each other before issuing, and provide each other a reasonable opportunity to review and comment upon, any press release or public statement with respect to this Agreement and the transactions contemplated hereby and, except as may be required by applicable law, will not issue any such press release or make any such public statement prior to such consultation.

 

8.5  Notices   Any notice, request or other communication required or permitted hereunder shall be in writing and be deemed to have been duly given (a) when personally delivered or sent by facsimile transmission (the receipt of which is confirmed in writing), (b) one Business Day after being sent by a nationally recognized overnight courier service or (c) five Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, to the parties at their respective addresses set forth below.

 

 

If to the Company or the Existing Stockholders:	Longfoot Communications Corp 9229 Sunset Blvd, Suite 810 West Hollywood, CA 90069 Attention:  Arthur Lyons, CEO
with a courtesy copy (not constituting notice)  to:	Aaron A. Grunfeld, Esq. Law Offices of Aaron A. Grunfeld and Associates 9200 Sunset Blvd., 9th Floor Los Angeles, California 90069 Facsimile:   ###-###-####
if to Investors:	At the addresses set forth across from each Investor’s name on Exhibit A hereto.
with a copy to:	Robert L. Grossman, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Facsimile:   ###-###-####   and   Any party by written notice to the other may change the address or the persons to whom notices or copies thereof shall be directed.

8.6  Counterparts; Facsimile Signatures   This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together will constitute one and the same instrument.  Any facsimile copy of this Agreement will be deemed an original for all purposes.

 

8.7  Successors and Assigns   This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that the Company may not assign or transfer its rights hereunder without the prior written consent of the Investors.

 

8.8  Third Parties   Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any Person other than the parties hereto and their successors and assigns any rights or remedies under or by reason of this Agreement.

 

8.9  Schedules   The Schedules and Exhibit A attached to this Agreement are incorporated herein and shall be part of this Agreement for all purposes.

 

8.10  Headings   The headings in this Agreement are solely for convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.

 

8.11  Interpretation   Whenever the context may require, any pronoun used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.

 

[Signature Page Follows]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the Company and each of the Investors have executed this Agreement as of the date first above written.

 

	THE COMPANY:
	Longfoot Communications Corp.
	a Delaware corporation
	By:	/s/ ARTHUR LYONS
		Name: Arthur Lyons
		Title: CEO

 

 

 

 

 

 

	PP6O, LLC
	By:	/s/ SIM FARAR
	Its:	Member

 

 

 

 

 

 

 

 

 

 

 

 

Name, Address and State of Residence	Number of Shares of Common Stock to be Purchased	Percentage of Shares Purchased
Frost Gamma Investments Trust 4400 Biscayne Boulevard Suite 1500 Miami, Florida 33137	1,222,713	72%
Dr. Jane Hsiao 4400 Biscayne Boulevard Suite 1500 Miami, Florida 33137	305,677	18%
Steven D. Rubin 4400 Biscayne Boulevard Suite 1500 Miami, Florida 33137	84,911	5%
Subbarao Uppaluri 4400 Biscayne Boulevard Suite 1500 Miami, Florida 33137	84,911	5%