rm names are on the s8 here.
SHARE EXCHANGE AGREEMENT http://www.inovet.com.ar/pantallas.html
Effective September 17, 2009, the Board of Directors of the Company authorized the execution of a share exchange agreement (the "Share Exchange Agreement") with Inovet, Ltd., a Delawawre corporation ("Inovet") and the shareholders of Inovet (the "Inovet Shareholders"). In accordance with the terms and provisions of the Share Exchange Agreement, the Company agreed to: (i) acquire all of the issued and outstanding shares of common stock of Inovet from the Inovet Shareholders; and (ii) issue an aggregate of 10,000,000 shares of its resticted common stock to the Inovet Shareholders.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
SEPTEMBER 17, 2009
Date of Report (Date of earliest event reported)
INOLIFE TECHNOLGIES, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 0-50863 30-0299889
________ _______ __________
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
8601 SIX FORKS ROAD, SUITE 400
RALEIGH, NORTH CAORLINA 27615
_______________________ _____
(Address of principal executive offices) (Zip Code)
(919) 676-5334
______________
Registrant's telephone number, including area code
NEXXNOW INC.
13700 ALTON PARKWAY, SUITE 154-277
IRVINE, CALIFORNIA 92618
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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SECTION 1. REGISTRANT'S BUSINESS AND OPERATIONS
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
STOCK PURCHASE AGREEMENT
Effective July 29, 2009, Kenneth Keller ("Keller"), the majority shareholder of Nexxnow Inc., now known as Inolife Technologies, Inc., a New York corporation (the "Company"), entered into an agreement for the purchase of common stock (the "Stock Purchase Agreement") with Gary Berthold, the current President/Chief Executrive Officer and a director of the Company ("Berthold"). In accordance with the terms and provisions of the Stock Purchase Agreement, Keller sold an aggregate of 35,013,540 shares of the Company held of record to Berthold. Therefore, as of the date of this Current Report, Berthold holds of record an aggregate 35,013,540 shares of restricted common stock of the Company representing an equity interest of approximately 70.8%.
FINANCIAL SERVICES ADVISORY AGREEMENT
Effective September 9, 2009, the Board of Directors of the Company authorizied the execution of an investment banking and financial advisory agreement (the "Financial Advisory Agreement") with New York Consulting Group LLC. (the "Consultant"). In accordance with the terms and provisions of the Financial Advisory Agreement: (i) the Consultant has agreed to provide the Company with regular and customary investment banking and financial advisory services, including advice regarding formation of corporate goals and implementation thereof, to the Company; and (ii) the Company has agreed to issue an aggregate of 14,000,000 shares of restricted common stock to the Consultant and/or its designees.
SHARE EXCHANGE AGREEMENT
Effective September 17, 2009, the Board of Directors of the Company authorized the execution of a share exchange agreement (the "Share Exchange Agreement") with Inovet, Ltd., a Delawawre corporation ("Inovet") and the shareholders of Inovet (the "Inovet Shareholders"). In accordance with the terms and provisions of the Share Exchange Agreement, the Company agreed to: (i) acquire all of the issued and outstanding shares of common stock of Inovet from the Inovet Shareholders; and (ii) issue an aggregate of 10,000,000 shares of its resticted common stock to the Inovet Shareholders.
EXCHANGE OF ASSETS FOR STOCK
Effective September 17, 2009, the Board of Directors of the Company authorized the execution of a tax free exchange of assets for stock agreement (the "Asset Agreement") with My Complete Care, Inc., a Florida corporation ("My Complete Care") and the shareholders of My Complete Care (the "My Complete Care Shareholders"). In accordance with the terms and provisions of the Asset Agreement: (i) My Complete Care shall deliver to the Company and the Company shall acquire all of My Complete Care's right, title and interest in and to certain assets free and clear of all liens, which assets include but are not limited to all patents, all brands, trade names, trademarks, service marks and logos (the "Brands"), the goodwill relating to the Brands, all research and marketing studies owned by My Complete Care associated with the Brands and product development efforts, rights of My Complete Care to copyrights associated with the Brands, all trade secrets, technical information, manuals, material specifications, qualitfy assurance and control procedures, and all customer lists, supplier lists, accounts, invoices, credit record associated with the products and services of My Complete Care (the "Assets"); (ii) the Company shall pay a purchase price consisting of the issuance of 2,000,000 shares of the restricted common stock of the Company.
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SECTION 2. FINANCIAL INFORMATION
ITEM 2.01 COMPLETION OF ACQUISITION OF DISPOSITION OF ASSETS
The Company refers to Item 1.01 above, "Entry into Material Definitive Agreement" and upon completion of the audited financial statements of Inovet, Inc. and My Complete Care, the Company will file an additional Current Report on Form 8-K detailing the current and proposed future business operations of the Company.
SECTION 3. SECURITIES AND TRADING MATTERS
ITEM 3.02 UNREGISTERED SALES
STOCK PURCHASE AGREEMENT
In accordance with the terms and provisions of the Financial Services Advisory Agreement, the Company issued to the Consultant and/or its designees an aggregate of 14,000,000 shares of its restricted common stock. The shares under the terms of the Financial Services Advisory Agreement were issued in reliance on Section 4(2) promulgated under the United States Securities Act of 1933, as amended (the "Securities Act"). The shares have not been registered under the Securities Act or under any state securities laws and may not be offered or sold without registration with the United States Securities and Exchange Commission or an applicable exemption from the registration requirements. The per share price of the shares was arbitrarily determined by the Board of Directors based upon analysis of certain factors including, but not limited to, stage of development , industry status, investment climate, perceived investment risks, the Company's assets and net estimated worth. The Consultant acknowledged that the securities to be issued have not been registered under the Securities Act, that it understood the economic risk of an investment in the securities, and that it had the opportunity to ask questions of and receive answers from the Company's management concerning any and all matters related to acquisition of the securities.
SHARE EXCHANGE AGREEMENT
In accordance with the terms and provisions of the Share Exchange Agreement, the Company issued to the Inovet Shareholders an aggregate of 10,000,000 shares of its restricted common stock. The shares under the terms of the Share Exchnage Agreement, were issued in reliance on Section 4(2) promulgated under the United States Securities Act of 1933, as amended (the "Securities Act"). The shares have not been registered under the Securities Act or under any state securities laws and may not be offered or sold without registration with the United States Securities and Exchange Commission or an applicable exemption from the registration requirements. The per share price of the shares was arbitrarily determined by the Board of Directors based upon analysis of certain factors including, but not limited to, stage of development , industry status, investment climate, perceived investment risks, the Company's assets and net estimated worth. The Inovet Shareholders acknowledged that the securities to be issued have not been registered under the Securities Act, that it understood the economic risk of an investment in the securities, and that it had the opportunity to ask questions of and receive answers from the Company's management concerning any and all matters related to acquisition of the securities.
ASSET AGREEMENT
In accordance with the terms and provisions of the Asset Agreement, the Company issued to the My Complete Care shareholders an aggregate of 2,000,000 shares of its restricted common stock. The shares under the terms of the Share Exchnage Agreement, were issued in reliance on Section 4(2) promulgated under the United States Securities Act of 1933, as amended (the "Securities Act"). The shares
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have not been registered under the Securities Act or under any state securities laws and may not be offered or sold without registration with the United States Securities and Exchange Commission or an applicable exemption from the registration requirements. The per share price of the shares was arbitrarily determined by the Board of Directors based upon analysis of certain factors including, but not limited to, stage of development , industry status, investment climate, perceived investment risks, the Company's assets and net estimated worth. The My Complete Care Shareholders acknowledged that the securities to be issued have not been registered under the Securities Act, that it understood the economic risk of an investment in the securities, and that it had the opportunity to ask questions of and receive answers from the Company's management concerning any and all matters related to acquisition of the securities. BENEFICIAL OWNERSHIP CHART The following table sets forth certain information, as of September 18, 2009, with respect to the beneficial ownership of the outstanding common stock by: (i) any holder of more than five (5%) percent; (ii) each of our executive officers and directors; and (iii) our directors and executive officers as a group. Except as otherwise indicated, each of the stockholders listed below has sole voting and investment power over the shares beneficially owned. Unless otherwise indicated, each of the stockholders named in the table below has sole voting and investment power with respect to such shares of common stock. Beneficial ownership consists of a direct interest in the shares of common stock, except as otherwise indicated. As of the date of this Current Report, there are 63,419,448 shares of common stock issued and outstanding.
NAME AND ADDRESS OF BENEFICIAL OWNER(1) AMOUNT AND NATURE OF BENEFICIAL PERCENTAGE OF BENEFICIAL
OWNERSHIP(1) OWNERSHIP
DIRECTORS AND OFFICERS:
Gary Berthold (2) 35,013,540 70.8%
8601 Six Forks Road
Suite 400
Raleigh, North Carolina 27615
Sharon Berthold (2) 35,013,540 70.8%
8601 Six Forks Road
Suite 400
Raleigh, North Carolina 27615
Sterling Shepperd
8601 Six Forks Road -0- 0%
Suite 400
Raleigh, North Carolina 27615
All executive officers and directors as a group (3
persons) 35,013,540 70.8%
BENEFICIAL SHAREHOLDERS GREATER THAN 10%
None
* Less than one percent.
(1) Under Rule 13d-3, a beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares: (i) voting power, which includes the power to vote, or to direct the voting of shares; and
(ii) investment power, which includes the power to dispose or direct the disposition of shares. Certain shares may be deemed to be beneficially owned by more than one person (if, for example, persons share the power to vote or the power to dispose of the shares). In addition, shares are deemed to be beneficially owned by a person if the person has the right to acquire the shares (for example, upon exercise of an option) within 60
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days of the date as of which the information is provided. In computing the percentage ownership of any person, the amount of shares outstanding is deemed to include the amount of shares beneficially owned by such person (and only such person) by reason of these acquisition rights. As a result, the percentage of outstanding shares of any person as shown in this table does not necessarily reflect the person's actual ownership or voting power with respect to the number of shares of common stock actually outstanding as of the date of this Annual Report. As of the date of this Current Report, there are 63,419,448 shares issued and outstanding.
(2) Represents shares owned by Gary Berthold, the spouse of Sharon Berthold.
SECTION 5 - CORPORATE GOVERNANCE AND MANAGEMENT
ITEM 5.01 CHANGES IN CONTROL OF REGISTRANT
The Company refers to Item 1.01 above, "Entry into a Material Agreement" concerning the change in control.
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF PRINCIPAL OFFICERS. Following the Stock Purchase Agreement, effective on September 9, 2009: (i) Mr. Vasili Borisov resigned as the President/Chief Executive Officer, Principal Executive Officer and a director of the Company; (ii) Ms. Nadeezda Bulicheva resigned as the Chief Financial Officer/Treasurer, Secretary, Principal Accounting Officer and as a director of the Company; (iii) Ulrik Svane Thomsen consented to act as the President, Treasurer and a director of the Company; and (iv) Jacob W. Lemmeke consented to act as the Secretary and a director of the Company.
The biographies of each of the new directors and officers are set forth below as follows:
NAME AGE POSITION WITH THE COMPANY
___________ ___ _________________________________
Gary Berthold 58 President/Chief Executive Officer and a Director
Sharon Berthold 57 Director
Sterling Shepperd 34 Chief Financial Officer --
Directors hold office until the annual meeting of the Company's stockholders and the election and qualification of their successors. Officers hold office, subject to removal at any time by the Board, until the meeting of directors immediately following the annual meeting of stockholders and until their successors are appointed and qualified.
GARY BERTHOLD. Since 2006 Mr. Berthold has been the manager-member of several companies involved in veterinary research: PharmaCom BioVet, Inc., InoVet Ltd., and PharmaCom BioVet , LLC. Since 2004 Mr. Berthold has also owned a Haulmark Motor Home dealership that he represents at AKC dog shows. From 2003 to 2007 Mr. Berthold co-owned a software development company involved in the home automation industry. From 2004 to 2006 he also served as manufacturer's rep for several pet food and pet supply companies. Since 2000 Mr. Berthold has owned and managed a series of retail pet stores. Mr. Berthold is the spouse of Sharon Berthold, a director of the Company.
SHARON BERTHOLD. Since 2007 Ms. Berthold has been engaged as owner of PharmaCom BioVet, LLC, and employed as Executive Vice President, Secretary and Treasurer of PharmaCom BioVet, Inc. and InoVet Ltd. Each of those companies is involved in veterinary research. Ms. Berthold is the spouse of Gary Berthold, a director of the Company.
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STERLING SHEPPERD. Mr. Shepperd has been an officer of NexxNow since July 2004. During the greater part of the 2009 fiscal year, Mr. Shepperd served as Chief Financial Officer of NexxNow. From November 21, 2008 until August 2009 he also served as its Chief Executive Officer. In 2003 Mr. Shepperd was employed as Sales Manager for JMT Solutions, LLC, which was engaged in the business of direct response marketing in Palm Bay, Florida. From 1999 until he joined JMT Solutions, Mr. Shepperd was employed by DanMark, Inc., an organization engaged in direct response marketing.
SECTION 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR
Effective as of September 1, 2009, the Board of Directors of the Company authorized the filing of an amendment to the Articles of Incorporation of the Company changing its name from "Nexxnow Inc." to "InoLife Technologies Inc." As of the date of this Current Report, the Company is proceeding to file appropriate documentation with FINRA in order to effect the name change on the market.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED . In accordance with Item 9.01(a), the audited financial statements of Inovet Inc. and My Complete Care Inc. willl be filed in a supplemental Current Report on Form 8-K within the next 45 days.
(b) PRO FORMA FINANCIAL INFORMATION. In accordance with Item 9.01(b), our pro forma financial statements are filed in this Current Report are incorporated by reference to thise included in the Company's Annual Report on Form 10-K.
(d) EXHIBITS. The exhibits listed in the following Exhibit Index are filed as part of this Current Report on Form 8-K.
Exhibit Description
Number
10.1 Share Exchnage Agreement by and between Nexxnow Inc., Inovet Ltd. and
the shareholders of Inovet Inc. dated September 17, 2009.
10.2 Tax Free Asset Purchase Agreement by and between Nexxnow Inc., My
Complete Care Inc., and the shareholders of My Complete Care dated
September 17, 2009.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
INOLIFE TECHNOLOGIES INC.
DATE: SEPTEMBER 18, 2009 /s/GARY BERTHOLD
___________________________________
NAME: GARY BERTHOLD
TITLE: PRESIDENT/CHIEF EXECUTIVE OFFICER
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EXHIBIT 10.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement"), effective as of September 17, 2009 (the "Effective Date"), is entered into by and between InoLife Technologies, Inc., a corporation formed under the laws of the State of New York ("Buyer"), InoVet, Ltd., a corporation formed under the laws of Delaware (the "Company"), and the shareholders of the Company, Gary Berthold and Sharon Berthold (collectively, the "Shareholders").
WHEREAS the Shareholders are the registered and beneficial owners of all of the issued and outstanding shares of common stock of the Company (the "Shares");
WHEREAS Buyer is a publicly trading company, whose stock currently trades on the on the Over-the-Counter Bulletin Board under the symbol "NXXN.OB";
WHEREAS subject to approval by the respective Board of Directors, Buyer desires to acquire one hundred percent (100%) of the total issued and outstanding Shares in exchange for 10,000,000 shares of the common stock, par value $0.01, of Buyer representing 100% of the total issued and outstanding shares of Buyer (the "Buyer Shares");
WHEREAS Buyer desires to acquire the Company in exchange for all of the issued and outstanding shares of the Company resulting in the Company becoming a wholly-owned subsidiary of Buyer in a tax-free exchange;
WHEREAS, the parties to this Agreement have agreed to the share exchange subject to the terms and conditions set forth below.
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the mutual premises and the mutual covenants and agreements contained herein, the parties covenant and agree each with the other as follows:
ARTICLE I
EXCHANGE OF STOCK
Section 1.01. EXCHANGE. Upon the terms and subject to the conditions of this Agreement, the Shareholders agree to exchange the Shares for the Buyer Shares and Buyer agrees to issue to the Shareholders 10,000,000 Buyer Shares. The parties intend that the share exchange shall qualify as a tax free reorganization under Section 368 of the Internal Revenue Code. However, Buyer makes no representations or warranties regarding the qualification of the share exchange as "tax free". Buyer shall cooperate with the Company in executing any reasonably necessary documents to qualify the share exchange as tax free.
Section 1.02. DELIVERY OF STOCK. (a) Upon the execution hereof, the Shareholders shall deliver to Buyer all of the stock certificates representing the total issued and outstanding Shares, duly endorsed in blank;
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(b) Upon execution hereof, Buyer shall deliver to the Shareholders stock certificates representing the Buyer Shares in the names and denominations as set forth on Exhibit A hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS
Section 2.01. ORGANIZATION, STANDING AND AUTHORITY; FOREIGN QUALIFICATION. (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware with all requisite power and authority to enter into, and perform the obligations under this Agreement. The Company has all requisite power and authority to own, lease and operate its assets, properties and business and to carry on its business as now being and as heretofore conducted.
(b) The Company is duly qualified or otherwise authorized as a corporation to transact business and is in good standing in each jurisdiction as necessary to conduct business as required by law. The Company does not file any franchise, income or other tax returns in any other jurisdiction other than the State of Delaware, based upon the ownership or use of property therein or the derivation of income there from.
Section 2.02. CAPITALIZATION. The authorized capital of the Company consists of 75,000,000 shares of common stock, par value $.0001 per share, A total of 50,000,000 shares of common stock are issued and outstanding. There are also 1,000,000 shares of preferred stock with a par value of $0.0001 per share. The Shares are the only class of the Company's capital stock that is outstanding. All of the outstanding Shares are duly authorized, validly issued, fully paid and non-assessable and free of preemptive rights.
Section 2.03. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Company has heretofore delivered to Buyer true, correct and complete copies of its Certificate of Incorporation or other documentation evidencing a corporation and By-laws. The minute books of the Company accurately reflect all actions taken at all meetings and consents in lieu of meetings of its stockholders, and all actions taken at all meetings and consents in lieu of meetings of its boards of directors and all committees.
Section 2.04. EXECUTION AND DELIVERY. This Agreement has been duly executed and delivered by each Shareholder and each constitutes the valid and binding agreement of each Shareholder enforceable against such Shareholder in accordance with its terms.
Section 2.05. CONSENTS AND APPROVALS. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby in accordance with the terms and conditions hereof and thereof do not require any Shareholder to obtain any consent, approval or action of, or make any filing with or give any notice to, any person or entity.
Section 2.06. NO CONFLICT. The execution, delivery and performance of each of this Agreement and the consummation of the transactions contemplated hereby and thereby in accordance with the terms and conditions hereof and thereof will not
(a) violate any provisions of the Certificate of Incorporation, By-laws or organizational document of the Company; (b) violate, conflict with or result in any modification of the effect of, otherwise give any other contracting party
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the right to terminate, or constitute (or with notice or lapse of time or both, constitute) a default under, and contract to which any Shareholder or the Company is a party to by or to which any of them or any of their respective assets or properties may be bound or subject; (c) violate any order, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body against, or binding upon or any agreement with, or condition imposed by, any governmental or regulatory body, foreign or domestic, binding upon any Shareholder or the Company or upon the Shares or the properties or business of the Company; (d) violate any statute, law or regulation of any jurisdiction as such statute, law or regulation relates to any Shareholder or the Company; or (e) result in the breach of any of the terms or conditions of, constitute a default under, or otherwise cause an impairment of, any permit.
Section 2.07. TITLE TO STOCK. Each Shareholder has valid title to their respective portion of the Shares free and clear of all liens or encumbrances, including, without limitation, any community property claim. Upon delivery of the Shares to be made on the Closing, Buyer shall acquire good and marketable title thereto, free and clear of any lien, including, without limitation, any community property claim.
Section 2.08. OPTIONS OR OTHER RIGHTS. (a) There are no outstanding rights, subscriptions, warrants, calls, preemptive rights, options, contracts or other agreements of any kind to purchase or otherwise to receive from any Shareholder or from the Company any of the outstanding, unauthorized or treasury shares of the Shares; and (b) there is no outstanding security of any kind convertible into any security of the Company, and, there is no outstanding contract or other agreement to purchase, redeem or otherwise acquire any of the Shares.
Section 2.09. MATERIAL INFORMATION. This Agreement, the financial statements of the Company and all other information provided in writing by the Shareholders or the Company or representatives thereof to Buyer, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make any statement contained herein or therein not misleading. There are no facts or conditions, which have not been disclosed to Buyer in writing which, individually or in the aggregate, could have a material adverse effect on Buyer or a material adverse effect on the ability of any Shareholder to perform any of his or her obligations pursuant to this Agreement.
Section 2.10. FINANCIAL STATEMENTS. The Company has or will have prior to the Closing furnished to Buyer certain financial statements of the Company as set forth in Section 4.11 hereof (the "Financial Statements"). The Financial Statements shall be true, correct and complete in all material respects and fairly present the financial condition of the Company and the results of its operations for the period then ended and shall be prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis.
Section 2.11. ABSENCE OF CERTAIN CHANGES. Since the date of the Financial Statements, there has been no event, change or development which could have a material adverse effect on the Company.
Section 2.12. UNDISCLOSED LIABILITIES. Except as reflected or reserved against in the Financial Statements, as of and for the period reflected therein, the Company was not on that date subject to, and since that date the Company has not incurred, any direct or indirect indebtedness, liability, claim, loss, damage, deficiency, obligation or responsibility, fixed or unfixed, choate or inchoate, liquidated or un liquidated, secured or unsecured, accrued, absolute, contingent or otherwise, of a kind required by generally accepted accounting principles to
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be reflected or reserved against on a financial statement ("Liabilities"), which individually or in the aggregate exceeds $10,000.
Section 2.13. OPERATIONS OF THE COMPANY. Except as contemplated by this Agreement, since the date of the Financial Statements, the Company has not: (a) amended its Certificate of Incorporation or By-laws or merged with or into or consolidated with any other person or entity, subdivided or in any way reclassified any shares of its capital stock or changed or agreed to change in any manner the rights of its outstanding capital stock or the character of its business; (b) issued, reserved for issuance, sold or redeemed, repurchased or otherwise acquired, or issued options or rights to subscribe to, or entered into any contract or commitment to issue, sell or redeem, repurchase or otherwise acquire, any shares of its capital stock or any bonds, notes, debentures or other evidence or indebtedness; (c) incurred any indebtedness for borrowed money or incurred or assumed any other liability in excess of $10,000 in any one case (or, in the aggregate, in the case of any related series of occurrences) or $25,000 in the aggregate; (d) declared or paid any dividends or declared or made any other distributions of any kind to its stockholders; (e) made any change in its accounting methods or practices or made any change in depreciation or amortization policies, except as required by law or generally accepted accounting principles; (f) made any loan or advance to any of its stockholders or to any of its directors, officers or employees, consultants, agents or other representatives, or made any other loan or advance, otherwise than in the ordinary course of business; (g) entered into any lease (as lessor or lessee) under which the Company is obligated to make or would receive payments in any one year of $10,000 or more; sold, abandoned or made any other disposition of any of its assets or properties; granted or suffered any lien on any of its assets or properties; entered into or amended any contracts to which it is a party, or by or to which it or its assets or properties are bound or subject;
(h) made any acquisition of all or a substantial part of the assets, properties, securities or business of any other person or entity; (i) paid, directly or indirectly, any of its material liabilities before the same became due in accordance with its terms or otherwise than in the ordinary course of business;
(j) terminated or failed to renew, or received any written threat (that was no subsequently withdrawn) to terminate or fail to renew, any contract that is or was material to the assets, liabilities, business, property, operations, prospects, results of operations or condition (financial or otherwise of the Company); or (k) entered into any other contract or other transaction that materially increases the Liabilities of the Company.
Section 2.14 COMPLIANCE WITH LAWS. The Company is not in violation of any applicable order, judgment, injunction, award or decree nor is it in violation of any Federal, provincial, state, local or foreign law, ordinance or regulation or any other requirement of any governmental or regulatory body, court or arbitrator, other than those violations which, in the aggregate, would not have a material adverse effect on the Company, neither the Company nor any Shareholder has received written notice that any violation is being alleged.
Section 2.15. ACTIONS AND PROCEEDINGS. There are no outstanding orders, judgments, injunctions, awards or decrees of any court, governmental or regulatory body or arbitration tribunal against or involving the Company, or against or involving any of the Shares. There are no actions, suits or claims or legal, regulatory, administrative or arbitration proceedings pending or, to the knowledge of any of the Shareholders threatened against or involving the Company.
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Section 2.16. CONTRACTS. (a) Schedule 2.16 sets forth all of the contracts hereinafter in this Section 2.16 referred to, to which the Company is a party or by or to which the Company or its assets or properties are bound or subject:
(i) Contracts with any current or former officer, director, employee, consultant, agent or other representative having more than three months to run from the date hereof or providing for an obligation to pay and/or accrue compensation of $10,000 or more per annum, or providing for the payment of fees or other consideration in excess of $10,000 in the aggregate to any officer or director of the Company, or to any other entity in which the Company has an interest;
(ii) Contracts for the purchase or sale of equipment or services that contain an escalation, renegotiation or predetermination clause or that can be cancelled without liability, premium or penalty only on ninety days' or more notice;
(iii) Contract for the sale of any of its assets or properties or for the grant to any person of any preferential rights to purchase any of its or their assets or properties;
(iv) Contracts (including with limitation, leases of real property) calling for an aggregate purchase price or payments in any one year of more than $10,000 in any one case (or in the aggregate, in the case of any related series of contracts);
(v) Contracts relating to the acquisition by the Company of any operating business of, or the disposition of any operating business by, any other person;
(vi) executor Contracts relating to the disposition or acquisition of any investment or of any interest in any person; (vii) Contracts under which it agrees to indemnify any party, other than in the ordinary course of business or in amounts not in excess of $10,000, or to share tax liability of any party;
(viii) Contracts containing covenants of the Company not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with in any line of business or in any geographical area;
(ix) Contracts relating to the making of any loan by the Company;
(x) Contracts relating to the borrowing of money by the Company or the direct or indirect guaranty by the Company of any obligation for, or an agreement by the Company to service, the repayment of borrowed money, or any other contingent obligations in respect of indebtedness of any other person, including, without limitation, (a) any contract relating to the maintenance of balances, (b) any contract with respect to lines of credit, (c) any contract to advance or supply funds to any other person other than in the ordinary course of business, (d) any contract to pay for property, products or services of any other person even if such property, products or services are not conveyed, delivered or rendered, (e) any keep-well, make-whole or maintenance of working capital or earnings or similar contract, or (f) any guaranty with respect to any lease or other similar periodic payments to be made by any other person;
(xi) Contracts for or relating to computers, computer equipment, computer software or computer services; and (xii) any other material contract whether or not made in the ordinary course of business.
(b) There have been delivered or made available to Buyer true, correct and complete copies of each of the contracts. Each such contract is valid, subsisting, in full force and effect and binding upon the parties thereto in
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accordance with its terms, and neither the Company nor any of the Company's other affiliates, as the case may be, is in default in any respect under any of them.
Section 2.17 INTELLECTUAL PROPERTY. All patents and other intellectual property, including all inventions, designs, models, processes, and applications for patents owned or used by the Company or in which or to which it has any rights, licenses or immunities are described and set forth with particularity in Schedule 2.17 along with information as to the Company's ownership thereof or licenses, rights or immunities therein and registrations thereof. The Company has not infringed on, misappropriated or otherwise conflicted with and is not now infringing on, misappropriating or otherwise conflicting with any patent or other intellectual property right belonging to any person. The Company is not a party to any license agreement or arrangement, whether or licensee, licensor or otherwise, with respect to any patent, application for patent, invention, design, model, process, trade secret or formula not set forth in Schedule 2.17. To the Shareholders' knowledge, the Company has the right and authority to use all patents, applications for patents, inventions, trade secrets, processes, models, designs, formulas and other intellectual property rights as are necessary to enable it to conduct and to continue to conduct all phases of the Company's business in the manner presently conducted and such use does not and will not conflict with, infringe on or misappropriate any patent or other rights of any person.
Section 2.18. LIENS. The Company has marketable title to all of its assets and properties free and clear of any lien.
Section 2.19. OFFICERS, DIRECTORS AND KEY EMPLOYEES. The Company does not have any contract or agreement with any of its officers, directors, employees or consultants whose annual salary equals or exceeds $25,000 or who received or has accrued in respect of such period a bonus equal to or in excess of $5,000; and the Company does not have any commitments or contracts to increase the wages or to modify the condition or terms of employment or consultancy of any of the employees or consultants of the Company, including the aggregate cost to the Company of all such commitments or contracts.
Section 2.20. BROKERAGE. No brokerage fees are to be paid in relation to this transaction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Shareholders as follows:
Section 3.01. ORGANIZATION, STANDING AND AUTHORITY OF BUYER. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and has all requisite corporate power and authority to own or lease its assets as now owned or leased by it and to otherwise conduct its business. All corporate proceedings required by law or by the provisions of this Agreement to be taken by Buyer on or before the Closing in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been or will be duly and validly taken.
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Section 3.02. EXECUTION AND DELIVERY. This Agreement has been duly authorized, executed and delivered by Buyer and constitutes the valid and binding agreement of Buyer enforceable against Buyer in accordance with its terms.
Section 3.03. CONSENTS AND APPROVALS. The execution, delivery and performance by Buyer of this Agreement and the consummation by Buyer of the transactions contemplated hereby do not require Buyer to obtain any consent, approval or action of, or make any filing with or give any notice to, any person.
Section 3.04. NO CONFLICT. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby in accordance with the terms and conditions hereof will not: (a) violate any provision of the Certificate of Incorporation, By-laws or other organizational document of Buyer; (b) violate, conflict with or result in the breach of any of the terms of, result in any modification of the effect of, otherwise give any other contracting party the right to terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any contract to which Buyer is a party or by or to which its assets or properties may be bound or subject;
(c) violate any order, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body against, or binding upon, or any agreement with, or condition imposed by, any governmental or regulatory body, foreign or domestic, binding upon Buyer or upon the securities, assets or business of Buyer; or (d) violate any statute, law or regulation of any jurisdiction as such statute, law or regulation relates to Buyer or to the securities, properties or business of Buyer.
Section 3.05. CAPITALIZATION. The capital of Buyer is as set forth in Buyer's public securities laws filings.
Section 3.06. BROKERAGE. No broker or finder has acted, directly or indirectly, for Buyer, nor has Buyer incurred any obligation to pay any brokerage, finder's fee or other commission in connection with the transactions contemplated by this Agreement.
Section 3.07. CERTIFICATE OF INCORPORATION AND BY-LAWS. Buyer has heretofore delivered to the Company and the Shareholders true, correct and complete copies of the Certificate of Incorporation and By-laws or comparable instruments of Buyer.
Section 3.08. STATUS OF BUYER SHARES. Upon consummation of the transactions contemplated by this Agreement, the Buyer Shares to be issued to the Shareholders, when issued and delivered, will be free of any and all liens, claims or encumbrances.
Section 3.09 NO BANKRUPTCY. Neither Buyer nor its assets are the subject of any proceeding involving either a voluntary or an involuntary bankruptcy, insolvency or receivership.
Section 3.10 CONTRACTS AND COMMITMENTS. All agreements which materially affect Buyer to which Buyer is a party or by which Buyer or any of its property is bound which exist as of the date of execution of this Agreement have been reviewed by the parties and Buyer is not in default with respect to any material term or condition of any such contract, nor has any event occurred which through the passage of time or the giving of notice, or both, would constitute a default hereunder.
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Section 3.11 COMPLIANCE WITH LAWS. To its knowledge, Buyer is not in violation of any applicable order, judgment, injunction, award or decree nor is it in violation of any Federal, state, local or foreign law, ordinance or regulation or any other requirement of any governmental or regulatory body, court or arbitrator, other than those violations which, in the aggregate, would not have a material adverse effect on Buyer and Buyer has not received written notice that any violation is being alleged.
Section 3.12 STOP TRADE ORDERS. To Buyer's knowledge, there are no pending, and there have never been any, stop trade orders issued against Buyer or any of its directors or officers or those of any affiliates of Buyer by any securities regulatory authority in the United States.
Section 3.13 REGULATORY INVESTIGATIONS. To Buyer's knowledge, there are no investigations or inquiries pending against Buyer or its directors or officers by any stock exchange, securities regulatory authority, taxing authority or any other governmental department or agency.
Section 3.14 CORPORATE RECORDS. All of the minute books and corporate and financial records of Buyer are, or prior to the Closing will be made available for review. In the event of the absence of a complete minute book, representation and warranty by the board of directors shall take precedence over the minute book and shall be incorporated to the minute book.
ARTICLE IV
COVENANTS AND AGREEMENTS
The Shareholders, the Company and Buyer covenant and agree as follows:
Section 4.01. CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing, Buyer shall be entitled, through its employees and representatives, to make such investigation of the assets, liabilities, properties, business and operations of the Company, and such examination of the books, records, tax returns, results of operations and financial condition of the Company, as Buyer wishes. Any such investigation and examination shall be conducted at reasonable times and under reasonable circumstances and the Shareholders and the Company and the employees and representatives of Buyer, including without limitation, their counsel and independent public accountants, shall cooperate fully with such representatives in connection with such review and examination.
Section 4.02. FURTHER ASSURANCES. Each of the parties shall execute such documents and other papers and take such further actions as may be reasonably required or desirable to carry out the provisions hereof and the transactions contemplated hereby. Each such party shall use its best efforts to fulfill or obtain the fulfillment of the conditions to the Closing as promptly as practicable.
Section 4.03. DELIVERY OF FINANCIAL STATEMENTS. (a) On or before the Closing, the Shareholders shall cause the Company to provide the following financial statements to Buyer, which shall collectively be referred to as the "Financial Statements".
(i) Unaudited balance sheets as of the end of each of the two most recent fiscal years or such shorter period as the Company (including its predecessors) has been in existence;
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(ii) Unaudited statements of income and cash flow for each of the three fiscal years preceding the date of the unaudited balance sheet referred to in (1) above or such shorter period as the Company (including its predecessors) has been in existence;
(b) The unaudited financial statements referred to in (a)(i) and (a)(ii) above shall be prepared by an independent certified public accountants or independent chartered accountants that have been duly registered and in good standing. The interim financial statements referred to in (a)(iii) and (a)(vi) above may be unaudited.
Section 4.04 PUBLIC ANNOUNCEMENTS. Except as required by any applicable law, rule or regulation, prior to the Closing, the Company shall not issue nor permit to be issued any press release or otherwise make or permit to be made any public statement with respect to the transactions contemplated by this Agreement without the prior written consent of Buyer.
ARTICLE V
CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE
The obligation of Buyer to enter into and complete the Closing is subject, at Buyer's option acting in accordance with the provisions of this Agreement with respect to the termination hereof, to the fulfillment on or prior to the Closing of the following conditions, any one or more of which may be waived by it, to the extent permitted by law.
Section 5.01. REPRESENTATIONS AND COVENANTS. The representations and warranties of the Shareholders contained in this Agreement shall be true and correct on and as of the Closing with the same force and effect as though made on and as of the Closing, except that any of such representations and warranties that are give as of a particular date and relate solely to a particular date or period shall be true as of such date or period. The Shareholders shall have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing. The Shareholders shall have delivered to Buyer a certificate dated the Closing, and signed by each Shareholder to the foregoing effect.
Section 5.02. GOVERNMENTAL PERMITS AND APPROVALS. All approvals, authorizations, consents, permits and licenses from governmental and regulatory bodies required for the transactions contemplated by this Agreement and to permit the business currently carried on by the Company to continue to be carried on by the Company substantially in the same manner immediately following the Closing shall have been obtained and shall be in full force and effect and without conditions or limitations reasonably unacceptable to Buyer, and Buyer shall have been furnished with appropriate evidence, reasonably satisfactory to it and its counsel, of the granting of such approvals, authorizations, consents, permits and licenses. There shall not have been any action taken by any court, governmental or regulatory body then prohibiting or making illegal on the Closing the transactions contemplated by this Agreement.
Section 5.03. THIRD PARTY CONSENTS. All consents, permits and approvals from parties to contracts with the Company that may be required in connections with the performance by the Shareholders of their obligations under this Agreement or
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the continuance of such contracts with the Company in full force and effect after the Closing shall have been obtained.
Section 5.04. LITIGATION. No action, suit or proceeding shall have been instituted and be continuing or be threatened by any person to restrain, modify or prevent the carrying out of the transactions contemplated hereby, or to seek damages in connection with such transactions, or that has or could have a material adverse effect on the Company.
Section 5.05 NO CHANGE IN CAPITALIZATION. On the Closing, the capitalization of the Company shall be as represented in Section 2.02.
Section 5.06. BOARD AND SHAREHOLDER APPROVAL. Prior to the Closing, the Company will obtain from its Board of Directors and the Shareholders approval of this Agreement and the transactions contemplated hereby.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATION OF
THE SHAREHOLDERS TO CLOSE
The obligation of the Shareholders to enter into and complete the Closing is subject, at the Shareholder's option acting in accordance with the provisions of this Agreement with respect to the termination hereof, to the fulfillment on or prior to the Closing of the following conditions, any one or more of which may be waived by it, to the extent permitted by law.
Section 6.01. REPRESENTATIONS AND COVENANTS. The representations and warranties of Buyer contained in this Agreement shall be true and correct on and as of the Closing with the same force and effect as though made on and as of the Closing, except that any of such representations and warranties that are give as of a particular date and relate solely to a particular date or period shall be true as of such date or period. Buyer shall have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing. Buyer shall have delivered to the Shareholders a certificate dated the Closing, and signed by an appropriate officer of Buyer to the foregoing effect.
Section 6.02. NO CHANGE IN CAPITALIZATION. On the Closing, the capitalization of Buyer shall be as represented in Section 3.05 hereof.
Section 6.03. FILING OF PERIODIC REPORTS. Buyer is current with respect to the filings required to be made by Buyer pursuant to the Securities Exchange Act of 1934 and the rules and regulations of promulgated thereunder and the rules and regulations of the Securities and Exchange Commission.
Section 6.04. QUOTATION ON OVER-THE-COUNTER BULLETIN BOARD. Buyer is trading on the Over-the-Counter Bulletin Board under the ticker symbol NXXN.OB.
Section 6.05. BOARD APPROVAL. Prior to the Closing, Buyer shall obtain the approval of its Board of Directors of this Agreement and the transactions contemplated hereby.
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ARTICLE VII
SURVIVAL AND INDEMNIFICATION
Section 7.01 INDEMNIFICATION BY SHAREHOLDERS. The Shareholders, jointly and severally, will indemnify Buyer, its affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of the Company or any of the Shareholders which survives the Closing, and (ii) any breach of any covenant of the Company and/or the Shareholders contained in this Agreement which requires performance after the Closing Date.
Section 7.02 INDEMNIFICATION BY BUYER. Buyer will indemnify the Shareholders, and each of their agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of Buyer which survives the Closing, and (ii) any breach of any covenant of Buyer contained in this Agreement which requires performance after the Closing Date; provided, however, that Buyer shall not have any liability under clause (i) above unless the aggregate of all losses, liabilities, costs and expenses relating thereto for which Buyer would but for this proviso be liable exceeds on a cumulative basis an amount equal to $5,000, and provided further, however, that Buyer's liability shall in no event exceed the Purchase Price.
Section 7.03 LIMITATIONS OF LIABILITY; COOPERATION. (a) Notwithstanding any provision herein, none of the parties hereto shall in any event be liable to the other parties to this Agreement or to such other parties' affiliates, officers, directors, employees, stockholders, agents or representatives on account of any indemnity obligation set forth in this Article VII for any indirect, consequential, special, incidental or punitive damages (including, but not limited to, lost profits, loss of use, damage to goodwill or loss of business).
(b) The parties hereto acknowledge and agree that their sole and exclusive remedy with respect to any and all claims relating to this Agreement, the transactions contemplated hereby, and the Assets (other than claims of, or causes of action arising from, fraud) shall be pursuant to the indemnification provisions set forth in this Article VII. In furtherance of the foregoing, the parties hereto hereby waive, from and after the Closing, to the fullest extend permitted under applicable Law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) which it may have against any of the other parties hereto and such parties' affiliates arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the indemnification provisions set forth in this Article VII).
(c) The parties shall cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to indemnify the other party hereunder including by making commercially reasonable efforts to mitigate or resolve any such claim or liability.
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Section 7.04 TERMINATION OF INDEMNIFICATION. The obligations to indemnify and hold harmless a party hereto (a) pursuant to Sections 7.01(i) or 7.02(ii) (i.e. on account of a breach of a representation or warranty), shall terminate eighteen (18) months after the date hereof; provided, however that those pursuant to Section 2.07 and 3.08 shall survive indefinitely, and (b) pursuant to any other clause(s) of Section 7.01 or 7.02 shall not terminate; provided, however, that as to clause (a) of this Section 7.04, such obligation to indemnify and hold harmless shall not terminate with respect to any item as to which the person to be indemnified or the related party thereto shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim (stating in reasonable detail the basis of such claim to the indemnifying party).
ARTICLE VIII
MISCELLANEOUS
Section 8.01 TIMING. Time is of the essence of this Agreement and each party hereto agrees and covenants to use their reasonably best efforts to complete the transactions contemplated hereby in a timely manner.
Section 8.02 ADDITIONAL DOCUMENTATION. The parties will execute and deliver such further documents and instruments and do all such acts and things as may be reasonably necessary or requisite to carry out the full intent and meaning of this Agreement and to effect the transactions contemplated by this Agreement.
Section 8.03 MERGER; ASSIGNMENT. This Agreement (a) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof; (b) is not intended to confer upon any other persons any rights or remedies hereunder, except as hereinafter provided; (c) shall be binding on the parties hereto and their respective permitted heirs, executors, personal representatives, successors and assigns, provided that this Agreement may not be assigned by any party hereto without the prior written consent of all parties to this Agreement.
Section 8.04 EXECUTION IN COUNTERPARTS. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which will together constitute one and the same instrument, and may be executed via facsimile transmission or electronic signature, and facsimile transmissions and of signed Agreements or electronic signatures shall be regarded and accepted as if they bore original signatures.
Section 8.05 EXPENSES. Each party will pay its legal expenses incurred in connection with the transactions contemplated hereby, whether or not such transactions are consummated.
Section 8.06 GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to principles of conflicts of law.
[signature page follows]
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IN WITNESS WHEREOF the parties hereto have set their hand and seal as of the day and year first above written.
INOVET, LTD
Date: September 17, 2009 By: /s/ GARY BETHOLD
_____________________________________
Title: PRESIDENT
_____________________________________
Date: September 17, 2009 /s/ GARY BETHOLD
_____________________________________
Gary Berthold
Date: September 17, 2009 /s/ SHARON BERTHOLD
_____________________________________
Sharon Berthold
INOLIFE TECHNOLOGIES, INC.
Date: September 17, 2009 By: /s/ GARY BERTHOLD
_____________________________________
Title: PRESIDENT/CEO
_____________________________________
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EXHIBIT 10.2
TAX FREE EXCHANGE OF ASSETS FOR STOCK
TAX FREE EXCHANGE OF ASSETS FOR STOCK ("this Agreement"), dated as of August 18, 2009 by and among My Complete Care, Inc. ("Seller"), a Florida corporation, and NexxNow, Inc. a New York corporation ("Buyer").
RECITALS:
WHEREAS, Seller desires to convey to Buyer, and Buyer desires to acquire from Seller, in accordance with the provisions of this Agreement, all or substantially all of the assets of Seller with the exception of certain assets (the "Excepted Assets") in exchange for 2,000,000 shares of the stock of Buyer; and,
WHEREAS, subsequent to the exchange of assets for stock, the shareholders of the Seller will agree to dissolve the Seller, and distribute the stock, the Excepted Assets, and the Excepted Liabilities to the shareholders of the Seller in a liquidating distribution which qualifies for a tax free distribution as to the stock and long term capital gains tax treatment for the Excepted Assets;
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF ASSETS FOR STOCK
SECTION 1.1 ASSETS TO BE EXCHANGED. On the terms and subject to the conditions of this Agreement including, without limitation, the provisions of Sections 4.10 and 4.11, on the Closing Date, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall acquire from Seller, all of Seller's right, title and interest in and to the following assets of Seller free and clear of all Liens, except Permitted Liens (all such assets, other than the Excluded Assets, being the "Assets"):
(a) All brands, trade names, trademarks, service marks and pending applications,( being the "Brands"), and all logos and trade dress, and any right to recover for infringement including past infringement;
(b) the goodwill relating to the Brands;
(c) All patents listed (the "Patents"), and any right to recover for infringement including past infringement;
(d) all research and marketing studies owned by Seller which are associated with the Brands and with Seller's product development efforts as related to the Brands;
(e) all formula specifications, trade secrets, technical information, manuals, material specifications, quality assurance and control procedures, material and safety procedure specifications, and documentation, in each case for all products sold or which Seller plans to sell under the Brands (such products, the "Products"), includingbany improvements or line extensions of the Products, or which are in research and development for sale under the
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Brands, and any patent applications relating thereto, and any right to recover for infringement including past infringement;
(f) all rights of Seller to television, radio and print advertisements and copy (including all physical embodiments thereof) associated with the Brands and Products;
(g) all rights of Seller in and to copyrights associated primarily with the Brands, distribution, production, and advertising sales services (the "Services") offered by the Seller and any right to recover for infringement including past infringement;
(h) all rights of Seller (including rights of refund and offset, deposits, rights to sums of money due, claims, causes of action and options) relating or pertaining to any contract or contract right;
(i) all customer lists, supplier lists, accounts, invoices, credit records and performance records associated with the Products or the Services, described more particularly;
(j) those accounts receivable of Seller and other rights of Seller to payment for the Products and Services), including, without limitation, rights to payment that are not evidenced by instruments, whether or not they have been written off or reserved against as a bad debt or doubtful account in any financial statement, together with all instruments representing any of the foregoing, and all rights, title, security and guaranties in favor of Seller with respect to any of the foregoing (the "Accounts");
(k) all Permits used by Seller in connection with the Products and Services;
(l) all insurance proceeds and insurance claims of Seller relating or pertaining to the Assets and, to the extent transferable, the benefit of and the right to enforce the covenants and warranties, if any, that Seller is entitled to enforce with respect to all or any part of the Assets against Seller's predecessors in title to the Assetsl
(m) all tax refunds, credits and/or proceeds thereof; and
(n) trade secrets, know-how, proprietary information, and other intellectual property used and useful in television broadcasting in all forms and in all media, whether now known or hereinafter discovered.
SECTION 1.2 ASSUMPTION OF LIABILITIES. On the terms and subject to the conditions set forth in this Agreement, Buyer shall assume, and agree to pay, perform and discharge when due:
(a) all of the debts, liabilities and obligations of Seller to third parties under the Scheduled Contracts that are specifically set forth on Schedule 1.3 hereto and that are not due prior to Closing, or if no contractual due date is provided for, are not more than ten (10) days past invoice date at Closing;
(b) all of the other debts listed on Schedule 1.4 attached hereto.
(The liabilities listed in clauses (a) and (b) of this Section 1.3 are collectively, the Assumed Liabilities").
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SAVE AND EXCEPT, all of the Excepted Assets, described as the assets directly or indirectly connected to or with contract rights, thereof, including, but not limited to, accounts, deposits, contract rights, and/or proceeds therefrom.
SECTION 1.3 EXCLUDED LIABILITIES. Seller's shareholders shall retain, and be responsible for paying, performing and discharging when due, and Buyer shall not assume or have any responsibility for:
(a) any federal, state or local franchise, income or other taxes or fees of any nature whatsoever attributable to the Assets for periods ending on or prior to the Closing and any penalty (or similar amount) thereon;
(b) any and all products liability lawsuits commenced by third parties or other products liability claims relating to any of the Products manufactured prior to Closing, other than Products that constitute Inventory under Section 1.1(j) and all products liability claims listed on Schedule 2.10 with respect to the Products (such lawsuits and claims, collectively, the "Products Liability Claims");
(c) any accounts due and payable to third parties by Seller as of the Closing Date whether or not arising from or primarily related to the operations of the Assets and including amounts due to third parties as of the Closing Date under the Scheduled Contracts;
(d) Any obligation or liability of Seller arising out of the Assumed Liabilities, which are payable or performable prior to Closing; and
(e) any other liability of Seller other than the Assumed Liabilities.
SECTION 1.4 PURCHASE PRICE. The aggregate purchase price payable by Buyer shall be two million (2,000,000 shares) of restricted common voting stock of the Buyer, non-assessable, and free and clear of any liens, claims, or encumbrances (the "Purchase Price"). On the Closing Date, Buyer will pay the Purchase Price.
SECTION 1.5 ALLOCATION OF PURCHASE PRICE. The purchase price shall be allocated based on the requirements of compliance with the Internal Revenue Code.
SECTION 1.6 PRORATION OF TAXES. With respect to any ad valorem tax imposed on a periodic basis that relates to a period straddling the Closing Date, such tax shall be prorated to the Closing Date, and the portion allocable to the period prior to the Closing Date shall be promptly paid or reimbursed by Seller, and the portion allocable to the period after the Closing Date shall be promptly paid or reimbursed by Buyer.
SECTION 1.7 PURCHASE PRICE ADJUSTMENT. NOT REQUIRED.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, jointly and severally, represents and warrants to Buyer as follows:
SECTION 2.1 ORGANIZATION AND QUALIFICATION. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida, with all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as presently conducted.
SECTION 2.2 AUTHORIZATION. Seller has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Seller, the performance by Seller of its obligations hereunder, and the consummation by Seller of the transactions contemplated hereby, have been duly authorized by the Board of Directors and stockholder of Seller. No other corporate action on the part of Seller is necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Seller and constitutes a valid and binding obligation of Seller, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
SECTION 2.3 NO VIOLATION. The execution and delivery of this Agreement by Seller, the performance by Seller of its respective obligations hereunder, and the consummation by Seller of the transactions contemplated hereby do not (a) violate, conflict with or result in any breach of any provision of the Certificate of Incorporation or Bylaws of Seller, (b) violate, conflict with or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which Seller is a party or by which it or any of its assets is bound, (c) violate any statute, rule, regulation, order, writ, judgment, injunction or decree of any court or Governmental Authority by which the Seller or its assets are bound, or (d) result in the creation of any Lien upon the properties or assets of Seller, except, in the case of clauses (b), (c) and (d), for such violations, breaches or defaults as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect.
SECTION 2.4 GOVERNMENT CONSENTS AND APPROVALS. No filing or registration with, no notice to and no permit, authorization, consent or approval of any Person or Governmental Authority is necessary for the consummation by Seller of the transactions contemplated by this Agreement other than (a) consents and approvals of or filings or registrations with the Antitrust Division of the United States Department of Justice (the "DOJ") pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if required (b) those already obtained and (c) consents, regulations, approvals, authorizations, permits, filings or notifications which are listed in Schedule 2.4 hereto.
SECTION 2.5 TITLE TO ASSETS. (a) Seller owns and has valid title to each of the Assets, free and clear
of all Liens other than Permitted Liens, except for the Assets described in Schedule 2.5, as to which Seller [either (i) owns and has valid title to such property, free and clear of all Liens other than Liens set forth on Schedule 2.5 that shall be released at Closing and Permitted Liens, or (ii)] has adequate, enforceable and transferable long-term licenses or other rights to use (without payment) certain Intellectual Property.
(b) On the Closing Date, each of the Assets shall be operational and all Liens set forth on Schedule 2.5 shall have been released.
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SECTION 2.6 INTELLECTUAL PROPERTY. Except as set forth in Schedule 2.6 the Seller owns or, if expressly stated on Schedule 2.6, has validly licensed, all patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service mark rights, copyrights and other proprietary intellectual property rights (collectively, "Intellectual Property"), which are part of the Assets. Except as set forth Schedule 2.6, no Claims are pending or, to the knowledge of the Seller, threatened that the Seller or any third party is infringing or otherwise adversely affecting the rights of any person with regard to the Intellectual Property. To the knowledge of the Seller, no person is infringing the rights of the Seller with respect to any of the Intellectual Property.
SECTION 2.7 FINANCIAL STATEMENTS. Schedule 2.6 sets forth the un-audited pro-forma statements of earnings before taxes of the Assets for the year ended December 31, 2008 and for the nine months ended September 30, 2009 (such statements, including the related notes thereto, the "Financial Statements"). The Financial Statements are complete and correct in all material respects and present fairly the results of operations of the Assets for the periods indicated.
SECTION 2.8 TAXES. All Taxes that are due and payable by Seller, other than those presently payable without penalty or interest, have been timely paid, and Seller has timely filed (and, through and after the Closing Date, will timely file) all Tax reports and returns required by law to be filed by it. There are no Tax liens upon any properties or assets of Seller nor has notice been given of any event which could lead to any such lien. All monies required for the payment of Taxes not yet due and payable with respect to the operations of Seller through and including the Closing Date have been approved, reserved against and entered upon the books and the Seller Financial Statements. All monies required to be withheld by Seller from employees, if any, independent contractors, or others or collected from customers for income taxes, social security and unemployment insurance taxes and sales, excise and use taxes, and the portion of any such taxes to be paid by Seller to governmental agencies or set aside in accounts for such purpose have been approved, reserved against and entered upon the books and the Seller Financial Statements. Consummation of the transactions will not result in any tax obligations on the Assets, except as set forth in Schedule 2.8.
SECTION 2.9 SCHEDULED CONTRACTS. (a) The Scheduled Contracts:
(i) do not require payment by any party thereto of more than $10,000; (ii) are terminable by Seller upon ninety (90) days' notice or less and without the payment of any material penalty or material termination fee; and (iii) have been entered into in the ordinary course of business.
(b) Schedule 2.9(c) hereto sets forth a true and correct list of all contracts of Seller that are material to the Assets (the "Scheduled Contracts"). Buyer has been provided with true and correct copies of all Scheduled Contracts(or in the case of oral agreements, complete written descriptions), and each such Scheduled Contract is in full force and effect constitute legal, valid and binding obligations of the respective parties thereto and are enforceable in accordance with their respective terms. Seller has not committed any breach or default thereunder, nor to Seller's or Parent's knowledge has any third party to such contracts committed any breach or default thereunder, in each case, which is reasonably likely to have a Material Adverse Effect. All such Scheduled Contracts are in the name of Seller and will be validly assigned to Buyer at the time of the Closing.
(c) As used in this Section 2.9, the word "contract" means and includes every written agreement of any kind which is legally enforceable by or against Seller.
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SECTION 2.10 LITIGATION. (a) Schedule 2.10 sets forth a list of all lawsuits or claims pending, or which, to Seller's or Parent's knowledge, are threatened, against Seller relating to or affecting any of the Assets and which:
(i) involve a Products Liability Claim;
(ii) involve a claim (other than a Products Liability Claim) against Seller of, or which involve an unspecified amount which is reasonably likely to result in a liability of, more than $100,000;
(iii) seek injunctive relief, or
(iv) seek any legal restraint on or prohibition against the transactions contemplated by this Agreement.
(b) The Seller is not a party or subject to any judgment, order, injunction or decree of any Governmental Authority.
SECTION 2.11 Permits. (a) Seller has all franchises, permits, licenses, waivers, authorizations and approvals ("Permits") from Governmental Authorities, including environmental Permits, which are required for Seller to own, sell and operate the Assets.
(b) There are no material defects in the Permits pertaining to the ownership, sale or operation of the Assets, and no procedure is pending or, to Seller's or Parent's knowledge, threatened to revoke or limit any such Permit.
(c) Following the Closing Date, neither Seller nor Parent will undertake, directly or indirectly, any challenges to the Permits relating to the ownership, sale or operation of the Assets.
SECTION 2.12 COMPLIANCE WITH LAWS. The Assets are owned and operated by Seller in compliance with all applicable Laws, and neither Seller nor Parent has received any written notice of violation of any Law from any Governmental Authority relating to any of the Assets or the ownership or operation thereof.
SECTION 2.13 EMPLOYEES. (a) Schedule 2.13(a) sets forth a list of all employees of Seller whose primary responsibility is the research, development, marketing, promotion, production, operation, distribution or sale of the Products or provision of the Services (the "Designated Employees").
(b) None of the Designated Employees are represented by any labor organization.
(c) Except as set forth in Schedule 2.13(c), there are no pending or threatened labor organizing activities, election petitions or proceedings, unfair labor practice complaints, slowdowns, or work stoppages known to Seller, involving any Designated Employee.
(d) Seller has complied with all laws, rules and regulations which relate to wages, hours, discrimination and employment and collective bargaining, and is not liable for any arrears of wages or any taxes or penalties for failure to so comply with any of the foregoing in connection with its employment of the Designated Employees.
SECTION 2.14 EMPLOYEE BENEFIT PLANS. Schedule 2.14 sets forth a true and complete list of each "employee benefit plan" (within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
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("ERISA")), each written employment, severance, retention, termination, consulting or retirement contract, and each bonus or other incentive compensation, stock purchase, stock option, stock award or other equity-based compensation (other than any governmental program) maintained by Seller with respect to the Designated Employees (collectively, "Employee Benefit Plans"). True, correct and complete copies of the Employee Benefit Plans or summary plan descriptions of such Employee Benefit Plans have been provided to Buyer by Seller. All employee benefits required to be paid to the Designated Employees under any Employee Benefit Plans are fully funded and in material compliance with applicable Law.
SECTION 2.15 INVENTORY. NOT APPLICABLE
SECTION 2.16 CUSTOMERS AND SUPPLIERS. Schedule 2.16 sets forth a list of names and addresses of all customers and all suppliers accounting for $10,000 or more of Seller's sales or purchases during the 2009 fiscal year. There exists no actual termination or cancellation of the business relationship of Seller with any customer or group of customers or with any supplier or group of suppliers listed in Schedule 2.16, with respect to which Seller has received written notice of termination or cancellation as the case maybe. To Seller's knowledge, no such termination or cancellation has been threatened.
SECTION 2.17 BROKERS' FEES AND COMMISSIONS. NOT APPLICABLE.
SECTION 2.18 ENVIRONMENTAL MATTERS. Except as set forth in Schedule 2.18 hereto, no notice, citation, summons or order has been issued, no complaint has been filed, no penalty has been assessed and no investigation or review is pending or threatened by any Governmental Authority with respect to
(i) any alleged violation, in the conduct of Seller's business, of any environmental statute, ordinance, rule, regulation or order of any Governmental Authority; (ii) any alleged failure to have any environmental permit, certificate, license, approval, registration or authorization required in connection with the conduct of Seller's business; or, (iii) any generation, treatment, storage, recycling, transportation or disposal of any hazardous or toxic substance or waste (including petroleum products and radioactive materials) generated or used in connection with the conduct of Seller's business. To the knowledge of Seller, Seller has complied with and is in compliance with all Environmental Requirements. To the knowledge of Seller, Seller has not stored, disposed of, arranged for or permitted the disposal of, transported, handled or released any substance, including, without limitation, any hazardous substance, pollutant, contaminant or waste, or owned or operated any facility or property, so as to give rise to liabilities of Seller pursuant to the Environmental Requirements, including, without limitation, any liability of response costs, corrective action, natural resources damages, personal injury, property damage or attorneys fees. To the knowledge of Seller, Seller has taken no action relating to the past or present facilities, properties or operations of Seller that will prevent, hinder or limit continued compliance with the Environmental Requirements, give rise to any investigatory, remedial or corrective obligations pursuant to the Environmental Requirements, or give rise to any other liabilities pursuant to the Environmental Requirements, including any Environmental Requirements relating to onsite or offsite releases or threatened releases of hazardous or otherwise regulated materials, substances or wastes, personal injury, property damages or natural resources damage. Seller has not, either expressly or by operation of law, assumed or undertaken any liability or corrective or remedial obligations of any other person relating to Environmental Requirements.
SECTION 2.19 ACCOUNTS. Schedule 2.19 hereto contains a complete and accurate list of all Seller's Accounts as of the date hereof, showing the name of each account debtor and the amount due from each by invoice number and date. All of such Accounts have arisen in the ordinary course of business for goods sold or services rendered consistent with past practices. Except as set forth on Schedule 2.19 hereto, to the knowledge of Seller there is
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no event or condition with respect to a specific customer that will cause such Accounts to not be collected in full in due course without resort to litigation and such Accounts will not be subject to counterclaim or setoff.
SECTION 2.20 INSURANCE. All the insurance policies maintained by Seller that relate or pertain to the Assets are in full force and effect, all insurance premiums have been timely paid to date, and no such policy will be cancelled by Seller prior to Closing. A description of each of such insurance policies (including, without limitation, insurance providing benefits for employees) is attached to Schedule 2.20 hereto. Such insurance policies provide adequate coverage, less deductibles, against the risks involved in the business and operation of the Assets.
SECTION 2.21 CHANGES SINCE DECEMBER 31, 2008 COMPANY FINANCIAL STATEMENTS. Except as listed or described on Schedule 2.21 hereto, since December 31, 2008 there has not been: (a) any Material Adverse Effect in the financial condition, results of operations, business, business organization or personnel of Seller, or in the relationships of Seller with vendors, suppliers, advertisers, customers, or others; (b) any controversy or unsettled grievance pending or threatened between Seller and any employee of Seller or a collective bargaining organization representing or seeking to represent any such employee, or any negotiation or execution by Seller of any collective bargaining agreement with respect to its employees; (c) any material amendment of any Scheduled Contract; or (d) any agreement by, or commitment of, Seller to do any of the foregoing.
SECTION 2.22 INTERNATIONAL SALES. Schedule 2.22 hereto contains a complete and accurate list of all companies, entities, businesses, whether subsidiaries of Seller or otherwise, that are currently involved in the selling of Assets outside of the United States.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
SECTION 3.1 ORGANIZATION AND QUALIFICATION. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its businesses as now being conducted.
SECTION 3.2 Authorization. Buyer has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. No other corporate proceeding on the part of Buyer is necessary to authorize the execution and delivery of this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Buyer and constitutes a valid and binding obligation of Buyer, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
SECTION 3.3 NO VIOLATION. Neither the execution and delivery of this Agreement by Buyer, the performance by Buyer of its obligations hereunder nor the consummation by Buyer of the transactions contemplated hereby
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will (a) violate, conflict with or result in any breach of any provision of the Certificate of Incorporation or Bylaws (or similar organizational document) of Buyer, (b) violate, conflict with or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which Buyer is a party or by which it or any of its assets is bound, (c) violate any statute, rule, regulation, order, writ, judgment, injunction or decree of any court or Governmental Authority by which Buyer or its assets is bound, or (d) result in the creation of any Lien upon the properties or assets of Buyer, except, in the case of clauses (b), (c) and (d), for such violations, breaches or defaults as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect.
SECTION 3.4 CONSENTS AND APPROVALS. No filing or registration with, no notice to and no permit, authorization, consent or approval of any Person or Governmental Authority is necessary for the consummation by Buyer of the transactions contemplated by this Agreement other than (a) consents and approvals of or filings or registrations with the DOJ pursuant to the HSR Act if required, and (b) consents, regulations, approvals, authorizations, permits, filings or notifications which, in the aggregate, are not reasonably likely to have a Material Adverse Effect.
SECTION 3.5 FEASIBILITY. (a) Buyer has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the television broadcast business. Following the Closing Date, Buyer intends to use the Assets as part of a viable, ongoing broadcast television business.
SECTION 3.6 BROKERS' FEES AND COMMISSIONS. neither Buyer nor any of its subsidiaries, directors, officers, employees or agents has employed any investment banker, broker or finder in connection with the transactions contemplated hereby.
ARTICLE IV
COVENANTS
SECTION 4.1 CONDUCT OF BUSINESS OF SELLER PRIOR TO THE CLOSING. During the period from the date of this Agreement to the Closing, Seller shall take all steps necessary to maintain and operate the Assets in compliance with laws and regulations. Further, during the period from the date of this Agreement to the Closing, Seller shall carry on its business in connection with the Assets in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact its goodwill and on-going business, keep available the services of the Designated Employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it.
SECTION 4.2 ACCESS TO INFORMATION. Between the date of this Agreement and the Closing Date, upon reasonable notice and at reasonable times without significant disruption to the businesses of Seller, Seller will give Buyer and its authorized representatives reasonable access to all offices and other physical facilities related to the Assets, and to all books and records of the Assets as Buyer may reasonably require, and will cause its officers to furnish Buyer such financial and operating data and other information with respect to the Assets, including any and all environmental and other documents and information related to Permits, and any and all financial, sales, marketing, operational information with respect to the Assets, as Buyer may from time to time reasonably request. No investigations by the Buyer or its representatives
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shall reduce or otherwise effect the obligation or liability of Seller with respect to any representations, warranties, covenants or agreements made herein or in an exhibit, schedule or certificate, instrument, agreement or document executed or delivered in connection with this Agreement.
SECTION 4.3 ACCESS TO EMPLOYEES. Between the date of this Agreement and the Closing Date, upon reasonable notice and at reasonable times, Seller will provide Buyer such information with respect to, and access to, (i) the Designated Employees and (ii) all other employees of Seller involved in the research, production, operation, development, marketing and sale of the Assets, in each case, as Buyer shall reasonably request to enable Buyer to make offers of employment to such employees. With respect to the Designated Employees only, Seller shall not otherwise interfere with any negotiations between Buyer and such Designated Employees with respect to such offers of employment, and Buyer shall be entitled to employ each of the Designated Employees subject to consummation of the transactions contemplated by this Agreement. Nothing herein shall be construed as an obligation on the part Buyer to employ the Designated Employees or any other employee of Seller. If hired, Buyer shall be under no responsibility to provide Designated Employees or any other employee of Seller with the same benefits as provided by Seller, and shall not be required to assume any of the current employment contracts of the Designated Employees.
SECTION 4.4 BEST EFFORTS; FURTHER ASSURANCES. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use their best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper and advisable under applicable Laws to consummate and make effective as expeditiously as possible and in any event on or prior to the August 30, 2009 the sale of the Assets contemplated by this Agreement. If at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, including, without limitation, the execution of additional instruments, the parties to this Agreement shall take all such necessary action.
SECTION 4.5 CONSENTS AND APPROVALS. The parties hereto each will cooperate with one another and use all reasonable efforts to prepare all necessary documentation (including, without limitation, furnishing all information required under the HSR Act if required), to effect promptly all necessary filings and to obtain all necessary permits, consents approvals, orders and authorizations of, or any exemptions by, all third parties and Governmental Authorities necessary to consummate the transactions contemplated by this Agreement. Each party will keep the other parties apprised of the status of any inquiries made of such party by the DOJ or any other Governmental Authority or members of their respective staffs with respect to this Agreement or the transactions contemplated hereby. The parties shall obtain shareholder and director approvals of the agreement for a tax-free exchange transaction in a form of corporate resolutions mutually agreeable, and Seller shall file the articles of dissolution with the Secretary of State of Florida, with the distribution of the Assets and the Excepted Assets to the shareholders of the Seller.
SECTION 4.6 PUBLIC ANNOUNCEMENTS. The parties hereto will consult with each other and will mutually agree (the agreement of each party not to be unreasonably withheld) upon the content and timing of any press release or other public statements with respect to the transactions contemplated by this Agreement and shall not issue any such press release or make any such public statement prior to such consultation and agreement, except as may be required by applicable Law or by obligations pursuant to any listing agreement with any securities exchange or any stock exchange regulations; provided, however, that a party which is required to issue a press release or make a public statement pursuant to applicable Law, a listing agreement with any securities exchange or
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a stock exchange regulation, will give reasonable prior notice to the other parties of thecontent and timing thereof.
SECTION 4.7 DISCLOSURE SUPPLEMENTS. From time to time prior to the Closing, Seller will supplement or amend the Schedules to this Agreement with respect to any matter which, if existing or occurring at or prior to the date of this Agreement, would have been required to be set forth or described in Schedule or which is necessary to correct any information in such Schedules which has been rendered inaccurate by an event occurring after the date hereof. No such disclosure made pursuant to this Section shall be considered to constitute or give rise to a waiver by Buyer of any condition set forth herein.
SECTION 4.8 NO IMPLIED REPRESENTATIONS OR WARRANTIES. Seller and Buyer each hereby acknowledge and agree that the other is not making any representation or warranty whatsoever, express or implied, except those representations and warranties explicitly set forth in this Agreement or in the Schedules hereto or in any certificate contemplated hereby and delivered in connection herewith. SECTION 4.9 Confidentiality. Buyer acknowledges that the confidential information being provided to it in connection with the sale and purchase of the Assets contemplated by this Agreement is subject to the terms of a confidentiality agreement between Buyer and Parent (the "Confidentiality Agreement"), the terms of which are incorporated herein by reference. Effective upon, and only upon, the Closing, the Confidentiality Agreement shall terminate with respect to the manner in which Buyer is obligated to treat confidential information relating to the Assets; provided that Buyer acknowledges that any and all other confidential information provided to it by Seller, and it's representatives concerning Seller's operations other than the Assets shall remain subject to the terms and conditions of the Confidentiality Agreement after the Closing Date. Further, effective upon Closing, Seller shall assume the obligations of Buyer under the Confidentiality Agreement with respect to confidential information relating to the Assets that were, prior to Closing, the obligations of Buyer, with the result that following Closing, Seller shall have the same obligations and Buyer shall have the same rights with respect to the confidential information relating to the Assets as if Buyer had been the party whose confidential information was protected under the Confidentiality Agreement.
SECTION 4.10 FORBEARANCES BY SELLER. Seller covenants that except as contemplated by this Agreement, Seller shall not, after the date hereof and prior to the Closing Date, without the prior written consent of Buyer:
(a) sell any Assets not in the ordinary course of business;
(b) encumber any of the Assets;
(c) enter into any employment, independent contractor agreement or similar arrangement with any Designated Employee;
(d) take any action, or fail to take any action, the result of which can reasonably be expected to be a termination of or default under any Scheduled Contracts or Permits;
(e) amend, modify or terminate, or agree to amend, modify or terminate any Scheduled Contracts; (f) fail to maintain the confidential treatment of or otherwise fail to preserve any of its proprietary rights; or (g) enter into any agreement to do any of the things described in clauses (a) through (f) above.
SECTION 4.11 APPROVAL OF THIRD PARTIES. As soon as practicable after the execution of this Agreement, Seller will use its best efforts to obtain all necessary approvals and consents of all third parties required for the valid assignment of the Scheduled Contracts or otherwise required on the part of Seller for the consummation of the transactions (the "Third Party
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Consents"). Buyer will reasonably cooperate with Seller in securing any necessary consents from, or in making any filings with or giving any notice to any third parties necessary for Seller to comply with this Section 4.11. Notwithstanding any other provision of this Agreement, to the extent that the assignment by Seller of any Scheduled Contracts or Permits to be assigned hereunder shall require the consent or approval of another party thereto, the consummation of the transactions shall not constitute an assignment or attempt at an assignment thereof if such assignment or attempted assignment would constitute a breach thereof. If any Third Party Consent with respect to any one or more Scheduled Contracts or Permits is not obtained at or prior to Closing, each party hereto agrees to take whatever action may be necessary to provide Buyer with the benefits of such Scheduled Contracts and Permits, subject to the assumption by Buyer of Seller's obligations thereunder. The Seller shall obtain shareholder and director approvals of the tax free exchange of assets for stock in a form mutually agreeable, and file the articles of dissolution of Seller with the distribution of the Assets and the Excepted Assets to the shareholders of the Seller.
SECTION 4.12 Seller shall give prompt written notice to Buyer and Buyer shall give prompt notice to Seller of:
(a) any representation or warranty made by it contained in this Agreement which has become untrue or inaccurate; or
(b) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement be complied with or satisfied by it under this Agreement; provided, however, that such notification shall not excuse or otherwise effect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
SECTION 4.13 EXCLUSIVITY. From and after the date hereof, to and including the Closing Date, neither Seller nor any stockholders, officers, directors, employees or agents of either shall directly or indirectly solicit, initiate or engage in or continue (including without limitation, furnishing any information concerning the Assets) discussions, inquiries or proposals, or enter into any negotiations for the purpose or with the intention of leading to any proposal, concerning the acquisition or purchase by any other party of the Assets or any part thereof, except in the latter case, in the ordinary course of business of Seller.
SECTION 4.14 MAINTENANCE OF RECORDS. Buyer and Seller will keep and maintain for a period of three (3) years from the Closing Date all material documents and records relating to the Assets. Upon request the parties shall make such documents and records available to the requesting party or its designated representatives for inspection and copying, at the requesting party's expense, during regular business hours in order to permit the requesting party to (a) prepare for, dispute or respond to any claim, law suit or proceeding, including without limitation, audits in connection with tax returns, and (b) comply with Laws applicable to Buyer or Seller or any of their affiliates; provided, however, that any such inspection pursuant to this Section 4.14 shall be conducted insuch a manner so as not to unreasonably interfere with the normal conduct of the business of the party responding to the request.
SECTION 4.15 NO SOLICITATION OR HIRING. Seller covenant and agree that for a period of twelve months following the date of this Agreement, they will not directly or indirectly on their own behalf or on behalf of any third party, employ or engage as a consultant or in any other capacity, any employee of Buyer without Buyer's consent, excepting the management consultant agreement.
ARTICLE V
CLOSING CONDITIONS
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SECTION 5.1 Conditions to Each Party's Obligations Under this Agreement. The respective obligations of each party under this Agreement shall be subject to the fulfillment at or prior to the Closing of the following conditions:
(a) any waiting period, if any, applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have expired or been terminated; and
(b) no injunction, restraining order or other ruling or order issued by any court of competent jurisdiction or Governmental Authority or other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby shall be in effect.
SECTION 5.2 CONDITIONS TO THE OBLIGATIONS OF BUYER UNDER THIS AGREEMENT. The obligations of Buyer under this Agreement shall be further subject to the satisfaction, at or prior to the Closing, of the following conditions:
(a) each of the obligations of Seller required to be performed by Seller at or prior to the Closing pursuant to this Agreement shall have been duly performed and complied with in all material respects;
(b) the representations and warranties of Seller contained in this Agreement which are not qualified with respect to materiality shall be true and correct, and the representations and warranties of Seller which are qualified with respect to materiality shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made at and as of the Closing (except as to any representation or warranty which specifically relates to an earlier date, which shall be true and correct as of such earlier date);
(c) any and all permits, consents, waivers, clearances, approvals and authorizations of all third parties and Governmental Authorities which are necessary in connection with the consummation of the transactions contemplated hereby shall have been obtained, other than items which, if not obtained, would not have a Material Adverse Effect;
(d) Seller shall have executed and delivered an affidavit, in a form reasonably satisfactory to Buyer, stating, under penalties of perjury, Seller's United States taxpayer identification number and that Seller is not a foreign person within the meaning of Section 1445 of the Code;
(e) There shall have occurred no Material Adverse Effect (whether or not covered by insurance) in the Assets or business of Seller relating to the Assets since [Jan 30, 2009];
(f) Any and all amendments or supplements to the Disclosure Schedules shall be acceptable in form and substance to Buyer, in its absolute discretion; and
(g) Sellers shall provide an agreement,
SECTION 5.3 CONDITIONS TO THE OBLIGATIONS OF SELLER UNDER THIS AGREEMENT. The obligations of Seller under this Agreement shall be further subject to the satisfaction, at or prior to the Closing, of the following conditions:
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(a) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects;
(b) the representations and warranties of Buyer contained in this Agreement which are not qualified with respect to materiality shall be true and correct, and the representations and warranties of Buyer which are qualified with respect to materiality shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made at and as of the Closing (except as to any representation or warranty which specifically relates to an earlier date, which shall be true and correct as of such earlier date);
(c) Seller shall have received a certificate signed by a duly authorized officer of Buyer certifying as to compliance with Sections 5.3 (a) and (b); and
(d) any and all permits, consents, waivers, clearances, approvals and authorizations of all Governmental Authorities which are necessary in connection with the consummation of the transactions contemplated hereby shall have been obtained, other than items which, if not obtained, would not have a Material Adverse Effect.
SECTION 5.4 CASUALTY LOSS. All risk of loss arising out of fire and casualty to the Assets prior to the Closing Date shall be that of Seller. If, prior to Closing, any of the Assets are damaged or destroyed by fire or other casualty, so as to constitute a Material Adverse Effect, Buyer may either terminate this Agreement by written notice to Seller or proceed to close the transactions made the subject of this Agreement. If Buyer elects to close despite such damage or destruction, Buyer at its option may either (a) elect to reduce the Purchase Price by an amount equal to the diminishment of the value of the damaged Assets, or (b) pay the Purchase Price upon assignment by Seller of Seller's right, title and interest in and to all insurance proceeds resulting or to result from said damage or destruction.
ARTICLE VI
CLOSING
SECTION 6.1 CLOSING. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Seller or at such other time and place and on such other date as Buyer and Seller shall agree (the "Closing Date"). Buyer shall, at its option, have the right to extend the Closing Date by not more than thirty (30) days by giving written notice thereof to Seller at least three (3) business days prior to the Closing Date. If Buyer exercises its option hereunder to extend the Closing Date, the term "Closing Date" as used herein shall mean and refer to such Closing Date as extended. At the Closing:
(a) Seller shall deliver or cause to be delivered to Buyer the following:
(i) the certificate described in Section 5.2(c);
(ii) properly executed bills of sale, certificates of title or other instruments of conveyance of title, in form reasonably acceptable to Buyer, sufficient to pass title to the Assets to Buyer, free and clear of all liens; and
(iii) the affidavit described in Section 5.2(e).
(iv) resolutions of requisite majorities of shareholders and directors approving the Tax Free Exchange of Stock for Assets and the transaction.
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(b) Buyer shall deliver or cause to be delivered to Seller the following:
(i) the certificate described in Section 5.3(c);
(ii) evidence of payment of the Purchase Price (less the Holdback Amount) by wire transfer of immediately available funds, to an account designated by Seller;
(iii) a counterpart signature page to the Transitional Manufacturing Agreement contemplated by Section 4.10; and
(iv) a counterpart signature page to the License Agreement contemplated by Section 4.11.
(v) resolutions of requisite majorities of shareholders and directors approving the Tax Free Exchange of Stock for Assets and the transaction
ARTICLE VII
TERMINATION AND ABANDONMENT
SECTION 7.1 TERMINATION. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual consent of Seller and Buyer;
(b) by either Seller or Buyer: (i) if a court of competent jurisdiction or Governmental Authority shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto shall use their best efforts to lift), in each case permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; or (ii) if the Closing shall not have occurred on or before july 31, 2009; provided, however, that the right to terminate this Agreement shall not be available to any party whose breach of this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date.
SECTION 7.2 PROCEDURE AND EFFECT OF TERMINATION. In the event of termination and abandonment of the transactions contemplated hereby pursuant to Section 7.1, written notice thereof shall forthwith be given to the other parties to this Agreement and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned, without further action by any of the parties hereto. If this Agreement is terminated as provided herein, no party hereto shall have any liability or further obligation to any other party to this Agreement resulting from such termination except (a) that the provision of this Section 7.2 and the proviso of Section 7.1(b) shall remain in full force and effect and (b) no party waives any claim or right against a breaching party to the extent that such termination results from the breach by a party hereto of any of its representations, warranties, covenants or agreements set forth in this Agreement.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
SECTION 8.1 INDEMNIFICATION BY SELLER. Seller's shareholders will jointly indemnify Buyer, its affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of Seller and/or Parent which survives the Closing, and (ii) any breach of any covenant of Seller contained in this Agreement which requires performance after the Closing Date.
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SECTION 8.2 INDEMNIFICATION BY BUYER. Buyer will indemnify Seller, it's affiliates and each of it's respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of Buyer which survives the Closing, and (ii) any breach of any covenant of Buyer contained in this Agreement which requires performance after the Closing Date; provided, however, that Buyer shall not have any liability under clause (i) above unless the aggregate of all losses, liabilities, costs and expenses relating thereto for which Buyerwould but for this proviso be liable exceeds on a cumulative basis an amount equal to $5,000, and provided further, however, that Buyer's liability under clause (i) above shall in no event exceed $10,000 and under clause (ii) above shall in no event exceed the Purchase Price.
SECTION 8.3 LIMITATIONS OF LIABILITY; Cooperation. (a) Notwithstanding any provision herein, none of the parties hereto shall in any event be liable to the other parties to this Agreement or to such other parties' affiliates, officers, directors, employees, stockholders, agents or representatives on account of any indemnity obligation set forth in this Article VIII for any indirect, consequential, special, incidental or punitive damages (including, but not limited to, lost profits, loss of use, damage to goodwill or loss of business).
(b) The parties hereto acknowledge and agree that should the Closing occur, their sole and exclusive remedy with respect to any and all claims relating to this Agreement, the transactions contemplated hereby, and the Assets (other than claims of, or causes of action arising from, fraud) shall be pursuant to the indemnification provisions set forth in this Article VIII . In furtherance of the foregoing, the parties hereto hereby waive, from and after the Closing, to the fullest extend permitted under applicable Law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) which it may have against any of the other parties hereto and such parties' affiliates arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the indemnification provisions set forth in this Article VIII).
(c) The parties shall cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to indemnify the other party hereunder including by making commercially reasonable efforts to mitigate or resolve any such claim or liability.
SECTION 8.4 TAX TREATMENT OF PAYMENTS UNDER ARTICLE VIII. Seller and Buyer mutually agree that unless otherwise required by applicable Law or a taxing authority, all payments received by an Indemnified Party from an Indemnifying Party pursuant to the provisions of this Article VIII shall be treated for tax purposes as an adjustment to the Consideration. Where the receipt of any such payment is treated for tax purposes in a manner other than an adjustment to the Consideration, the amount of the payment shall be increased to take account of any net tax cost actually incurred by the Indemnified Party in respect thereto. In computing the amount of any such tax cost, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising in respect of a payment pursuant to this Article VIII.
SECTION 8.5 Termination of Indemnification. The obligations to indemnify and hold harmless a party hereto (a) pursuant to Sections 8.1(i) or
8.2(i) (I.E. ON ACCOUNTOF A BREACH OF A REPRESENTATION OR WARRANTY), shall terminate when the applicable representation or warranty terminates pursuant to
Section 10.12 and (b) pursuant to any other clause(s) of Section 8.1 or 8.2 shall not terminate; provided, however, that as to clause (a) of this Section
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8.5, such obligation to indemnify and hold harmless shall not terminate with respect to any item as to which the person to be indemnified or the related party thereto shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim (stating in reasonable detail the basis of such claim to the indemnifying party).
ARTICLE IX
DEFINITIONS
SECTION 9.1 DEFINITIONS. As used in this Agreement, the following terms have the following meanings:
"affiliate" means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, another person.
"Agreement" means this Asset Purchase Agreement, including all Schedules and exhibits attached to it, as the same may be amended or supplemented from time to time in accordance with its terms.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Environmental Requirements": All federal, state, foreign and local laws, statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and the like of any Governmental Authority, and all obligations concerning public health and safety, worker health and safety, or pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of any hazardous or otherwise regulated materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation.
"Governmental Authority" means any government or governmental or regulatory body thereof, or political subdivision thereof, whether federal, state, local or foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).
"Law" means any federal, state, local or foreign law (including common law), statute, code, ordinance, rule, regulation or other requirement.
"Liens" means all claims, liens, security interests, pledges, leases, conditional sale contracts, rights of first refusal, options, charges, liabilities, obligations, agreements, easements, powers of attorney, limitations, reservations, restrictions and other encumbrances of any kind.
"Material Adverse Effect" means a material adverse effect on the business, operations, liabilities, properties, assets or financial condition of Seller, or in the ability of Seller to consummate the sale of the Assets contemplated by the Agreement; and in the case of Buyer, means a material adverse effect on the business, operations, liabilities, properties, assets or financial condition of Buyer or in the ability of Buyer to consummate the purchase of the Assets contemplated by the Agreement.
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"Permitted Liens" means collectively, mechanics', carriers', workmen's repairmen's or other like liens arising or incurred in the ordinary course of business; liens for taxes, assessments and other governmental charges which are not due and payable or which may thereafter be paid without penalty; and other imperfections of title or encumbrances, if any, none of which liens, title imperfections or encumbrances would individually or in the aggregate is reasonably likely to have a Material Adverse Effect. "Person" means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or, as applicable, any other entity.
"Scheduled Contracts" means contracts and agreements with third parties relating to the sale of promotion and placement of the Products or other products, which Seller plans to sell under the Brands or which are in research and development for sale under the Brands, including without limitation supply agreements, purchase and sale orders, agreements with retailers and licensing agreements.
"Taxes" means any federal, state, local or foreign income, sales, excise, real or personal property or other taxes, assessments, fees, levies, imposts, duties, deductions or other charges of any nature whatsoever (including, without limitation, inherent or implied by an law, role or regulation
SECTION 9.2 SINGULAR/PLURAL. The terms defined in the singular have a comparable meaning when used in the plural, and vice versa.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 AMENDMENTS AND WAIVERS. (a) This Agreement may be amended, modified or supplemented only by a written instrument executed by all of the parties hereto.
(b) The provisions of this Agreement may be waived only by an instrument in writing executed by the party granting the waiver. The waiver by any party to this Agreement of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
SECTION 10.2 FURTHER ASSURANCES. If at any time after the Closing, Buyer reasonably determines that any further conveyances, assignments, certificates, filings, instruments or documents or any other things are necessary or desirable to vest, perfect or confirm in Buyer title to any of the Assets or to otherwise consummate the transactions contemplated by this Agreement, Seller will, upon request, promptly execute and deliver all such proper deeds, assignments, certificates, filings, instruments and documents and do all things reasonably necessary and proper to vest, perfect or confirm title to such Assets in Buyer and otherwise to carry out the purposes of this Agreement.
SECTION 10.3 SEVERABILITY. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.
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SECTION 10.4 EXPENSES AND OBLIGATIONS. Except as otherwise provided elsewhere in this Agreement, each party shall be responsible for its costs and expenses, including all fees and expenses of attorneys, investment bankers, lenders, financial advisors and accountants, in connection with the negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, whether or not such transactions are consummated.
SECTION 10.5 PARTIES IN INTEREST. This Agreement shall inure to the benefit of and be binding upon Buyer, Seller, and their respective successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than Buyer, Seller, Parent, and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 10.6 NOTICES. All notices, requests, demands and other communications which are required or may be given under this Agreement must be in writing and be addressed to the party to be notified and sent to the address or facsimile number indicated below. All such notices, requests, demands and communications will be deemed to have been given: (a) if delivered personally when delivered, (b) if sent by telecopy or facsimile, upon transmission, (c) if delivered overnight by a recognized air courier service, with all charges prepaid, one business day after deposit with the service, and (d) if sent by registered or certified mail, return receipt requested, with proper postage prepaid, upon actual receipt.
Notices to Buyer:
NexxNow, Inc.
Notices to Seller:
My Complete Care, Inc.
SECTION 10.7 GOVERNING LAW. This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be enforced in such state and without regard to the principles thereof relating to conflicts of law.
SECTION 10.8 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. SECTION 10.9 Headings. The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not affect in any way the meaning or interpretation of this Agreement.
SECTION 10.10 ENTIRE AGREEMENT. This Agreement, including the Schedules and exhibits attached hereto, and the Confidentiality Agreement embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein or therein. There are no agreements, representations, warranties or covenants other than those expressly set forth herein or therein. This Agreement, including the Schedules and exhibits attached hereto, and the Confidentiality Agreement supersede all prior agreements and understandings between the parties with respect to such subject matter.
SECTION 10.11 ASSIGNMENT. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by Buyer, Seller (including by operation of law in connection with a merger, or sale of
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substantially all the assets, of any party hereto) without the prior consent of the other parties hereto. Any attempted assignment in violation of this Section 10.11 shall be void.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
NexxNow, Inc.
By: /s/GARY S. BERTHOLD
_______________________
Name: Gary S. Berthold
Title: Chairman/CEO
My Complete Care, Inc.
By: /s/ EDGAR ARVELO
_______________________
Name: Edgar Arvelo
Title: President
SHARE EXCHANGE AGREEMENT http://www.inovet.com.ar/pantallas.html
Effective September 17, 2009, the Board of Directors of the Company authorized the execution of a share exchange agreement (the "Share Exchange Agreement") with Inovet, Ltd., a Delawawre corporation ("Inovet") and the shareholders of Inovet (the "Inovet Shareholders"). In accordance with the terms and provisions of the Share Exchange Agreement, the Company agreed to: (i) acquire all of the issued and outstanding shares of common stock of Inovet from the Inovet Shareholders; and (ii) issue an aggregate of 10,000,000 shares of its resticted common stock to the Inovet Shareholders.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
SEPTEMBER 17, 2009
Date of Report (Date of earliest event reported)
INOLIFE TECHNOLGIES, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 0-50863 30-0299889
________ _______ __________
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
8601 SIX FORKS ROAD, SUITE 400
RALEIGH, NORTH CAORLINA 27615
_______________________ _____
(Address of principal executive offices) (Zip Code)
(919) 676-5334
______________
Registrant's telephone number, including area code
NEXXNOW INC.
13700 ALTON PARKWAY, SUITE 154-277
IRVINE, CALIFORNIA 92618
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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SECTION 1. REGISTRANT'S BUSINESS AND OPERATIONS
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
STOCK PURCHASE AGREEMENT
Effective July 29, 2009, Kenneth Keller ("Keller"), the majority shareholder of Nexxnow Inc., now known as Inolife Technologies, Inc., a New York corporation (the "Company"), entered into an agreement for the purchase of common stock (the "Stock Purchase Agreement") with Gary Berthold, the current President/Chief Executrive Officer and a director of the Company ("Berthold"). In accordance with the terms and provisions of the Stock Purchase Agreement, Keller sold an aggregate of 35,013,540 shares of the Company held of record to Berthold. Therefore, as of the date of this Current Report, Berthold holds of record an aggregate 35,013,540 shares of restricted common stock of the Company representing an equity interest of approximately 70.8%.
FINANCIAL SERVICES ADVISORY AGREEMENT
Effective September 9, 2009, the Board of Directors of the Company authorizied the execution of an investment banking and financial advisory agreement (the "Financial Advisory Agreement") with New York Consulting Group LLC. (the "Consultant"). In accordance with the terms and provisions of the Financial Advisory Agreement: (i) the Consultant has agreed to provide the Company with regular and customary investment banking and financial advisory services, including advice regarding formation of corporate goals and implementation thereof, to the Company; and (ii) the Company has agreed to issue an aggregate of 14,000,000 shares of restricted common stock to the Consultant and/or its designees.
SHARE EXCHANGE AGREEMENT
Effective September 17, 2009, the Board of Directors of the Company authorized the execution of a share exchange agreement (the "Share Exchange Agreement") with Inovet, Ltd., a Delawawre corporation ("Inovet") and the shareholders of Inovet (the "Inovet Shareholders"). In accordance with the terms and provisions of the Share Exchange Agreement, the Company agreed to: (i) acquire all of the issued and outstanding shares of common stock of Inovet from the Inovet Shareholders; and (ii) issue an aggregate of 10,000,000 shares of its resticted common stock to the Inovet Shareholders.
EXCHANGE OF ASSETS FOR STOCK
Effective September 17, 2009, the Board of Directors of the Company authorized the execution of a tax free exchange of assets for stock agreement (the "Asset Agreement") with My Complete Care, Inc., a Florida corporation ("My Complete Care") and the shareholders of My Complete Care (the "My Complete Care Shareholders"). In accordance with the terms and provisions of the Asset Agreement: (i) My Complete Care shall deliver to the Company and the Company shall acquire all of My Complete Care's right, title and interest in and to certain assets free and clear of all liens, which assets include but are not limited to all patents, all brands, trade names, trademarks, service marks and logos (the "Brands"), the goodwill relating to the Brands, all research and marketing studies owned by My Complete Care associated with the Brands and product development efforts, rights of My Complete Care to copyrights associated with the Brands, all trade secrets, technical information, manuals, material specifications, qualitfy assurance and control procedures, and all customer lists, supplier lists, accounts, invoices, credit record associated with the products and services of My Complete Care (the "Assets"); (ii) the Company shall pay a purchase price consisting of the issuance of 2,000,000 shares of the restricted common stock of the Company.
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SECTION 2. FINANCIAL INFORMATION
ITEM 2.01 COMPLETION OF ACQUISITION OF DISPOSITION OF ASSETS
The Company refers to Item 1.01 above, "Entry into Material Definitive Agreement" and upon completion of the audited financial statements of Inovet, Inc. and My Complete Care, the Company will file an additional Current Report on Form 8-K detailing the current and proposed future business operations of the Company.
SECTION 3. SECURITIES AND TRADING MATTERS
ITEM 3.02 UNREGISTERED SALES
STOCK PURCHASE AGREEMENT
In accordance with the terms and provisions of the Financial Services Advisory Agreement, the Company issued to the Consultant and/or its designees an aggregate of 14,000,000 shares of its restricted common stock. The shares under the terms of the Financial Services Advisory Agreement were issued in reliance on Section 4(2) promulgated under the United States Securities Act of 1933, as amended (the "Securities Act"). The shares have not been registered under the Securities Act or under any state securities laws and may not be offered or sold without registration with the United States Securities and Exchange Commission or an applicable exemption from the registration requirements. The per share price of the shares was arbitrarily determined by the Board of Directors based upon analysis of certain factors including, but not limited to, stage of development , industry status, investment climate, perceived investment risks, the Company's assets and net estimated worth. The Consultant acknowledged that the securities to be issued have not been registered under the Securities Act, that it understood the economic risk of an investment in the securities, and that it had the opportunity to ask questions of and receive answers from the Company's management concerning any and all matters related to acquisition of the securities.
SHARE EXCHANGE AGREEMENT
In accordance with the terms and provisions of the Share Exchange Agreement, the Company issued to the Inovet Shareholders an aggregate of 10,000,000 shares of its restricted common stock. The shares under the terms of the Share Exchnage Agreement, were issued in reliance on Section 4(2) promulgated under the United States Securities Act of 1933, as amended (the "Securities Act"). The shares have not been registered under the Securities Act or under any state securities laws and may not be offered or sold without registration with the United States Securities and Exchange Commission or an applicable exemption from the registration requirements. The per share price of the shares was arbitrarily determined by the Board of Directors based upon analysis of certain factors including, but not limited to, stage of development , industry status, investment climate, perceived investment risks, the Company's assets and net estimated worth. The Inovet Shareholders acknowledged that the securities to be issued have not been registered under the Securities Act, that it understood the economic risk of an investment in the securities, and that it had the opportunity to ask questions of and receive answers from the Company's management concerning any and all matters related to acquisition of the securities.
ASSET AGREEMENT
In accordance with the terms and provisions of the Asset Agreement, the Company issued to the My Complete Care shareholders an aggregate of 2,000,000 shares of its restricted common stock. The shares under the terms of the Share Exchnage Agreement, were issued in reliance on Section 4(2) promulgated under the United States Securities Act of 1933, as amended (the "Securities Act"). The shares
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have not been registered under the Securities Act or under any state securities laws and may not be offered or sold without registration with the United States Securities and Exchange Commission or an applicable exemption from the registration requirements. The per share price of the shares was arbitrarily determined by the Board of Directors based upon analysis of certain factors including, but not limited to, stage of development , industry status, investment climate, perceived investment risks, the Company's assets and net estimated worth. The My Complete Care Shareholders acknowledged that the securities to be issued have not been registered under the Securities Act, that it understood the economic risk of an investment in the securities, and that it had the opportunity to ask questions of and receive answers from the Company's management concerning any and all matters related to acquisition of the securities. BENEFICIAL OWNERSHIP CHART The following table sets forth certain information, as of September 18, 2009, with respect to the beneficial ownership of the outstanding common stock by: (i) any holder of more than five (5%) percent; (ii) each of our executive officers and directors; and (iii) our directors and executive officers as a group. Except as otherwise indicated, each of the stockholders listed below has sole voting and investment power over the shares beneficially owned. Unless otherwise indicated, each of the stockholders named in the table below has sole voting and investment power with respect to such shares of common stock. Beneficial ownership consists of a direct interest in the shares of common stock, except as otherwise indicated. As of the date of this Current Report, there are 63,419,448 shares of common stock issued and outstanding.
NAME AND ADDRESS OF BENEFICIAL OWNER(1) AMOUNT AND NATURE OF BENEFICIAL PERCENTAGE OF BENEFICIAL
OWNERSHIP(1) OWNERSHIP
DIRECTORS AND OFFICERS:
Gary Berthold (2) 35,013,540 70.8%
8601 Six Forks Road
Suite 400
Raleigh, North Carolina 27615
Sharon Berthold (2) 35,013,540 70.8%
8601 Six Forks Road
Suite 400
Raleigh, North Carolina 27615
Sterling Shepperd
8601 Six Forks Road -0- 0%
Suite 400
Raleigh, North Carolina 27615
All executive officers and directors as a group (3
persons) 35,013,540 70.8%
BENEFICIAL SHAREHOLDERS GREATER THAN 10%
None
* Less than one percent.
(1) Under Rule 13d-3, a beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares: (i) voting power, which includes the power to vote, or to direct the voting of shares; and
(ii) investment power, which includes the power to dispose or direct the disposition of shares. Certain shares may be deemed to be beneficially owned by more than one person (if, for example, persons share the power to vote or the power to dispose of the shares). In addition, shares are deemed to be beneficially owned by a person if the person has the right to acquire the shares (for example, upon exercise of an option) within 60
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days of the date as of which the information is provided. In computing the percentage ownership of any person, the amount of shares outstanding is deemed to include the amount of shares beneficially owned by such person (and only such person) by reason of these acquisition rights. As a result, the percentage of outstanding shares of any person as shown in this table does not necessarily reflect the person's actual ownership or voting power with respect to the number of shares of common stock actually outstanding as of the date of this Annual Report. As of the date of this Current Report, there are 63,419,448 shares issued and outstanding.
(2) Represents shares owned by Gary Berthold, the spouse of Sharon Berthold.
SECTION 5 - CORPORATE GOVERNANCE AND MANAGEMENT
ITEM 5.01 CHANGES IN CONTROL OF REGISTRANT
The Company refers to Item 1.01 above, "Entry into a Material Agreement" concerning the change in control.
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF PRINCIPAL OFFICERS. Following the Stock Purchase Agreement, effective on September 9, 2009: (i) Mr. Vasili Borisov resigned as the President/Chief Executive Officer, Principal Executive Officer and a director of the Company; (ii) Ms. Nadeezda Bulicheva resigned as the Chief Financial Officer/Treasurer, Secretary, Principal Accounting Officer and as a director of the Company; (iii) Ulrik Svane Thomsen consented to act as the President, Treasurer and a director of the Company; and (iv) Jacob W. Lemmeke consented to act as the Secretary and a director of the Company.
The biographies of each of the new directors and officers are set forth below as follows:
NAME AGE POSITION WITH THE COMPANY
___________ ___ _________________________________
Gary Berthold 58 President/Chief Executive Officer and a Director
Sharon Berthold 57 Director
Sterling Shepperd 34 Chief Financial Officer --
Directors hold office until the annual meeting of the Company's stockholders and the election and qualification of their successors. Officers hold office, subject to removal at any time by the Board, until the meeting of directors immediately following the annual meeting of stockholders and until their successors are appointed and qualified.
GARY BERTHOLD. Since 2006 Mr. Berthold has been the manager-member of several companies involved in veterinary research: PharmaCom BioVet, Inc., InoVet Ltd., and PharmaCom BioVet , LLC. Since 2004 Mr. Berthold has also owned a Haulmark Motor Home dealership that he represents at AKC dog shows. From 2003 to 2007 Mr. Berthold co-owned a software development company involved in the home automation industry. From 2004 to 2006 he also served as manufacturer's rep for several pet food and pet supply companies. Since 2000 Mr. Berthold has owned and managed a series of retail pet stores. Mr. Berthold is the spouse of Sharon Berthold, a director of the Company.
SHARON BERTHOLD. Since 2007 Ms. Berthold has been engaged as owner of PharmaCom BioVet, LLC, and employed as Executive Vice President, Secretary and Treasurer of PharmaCom BioVet, Inc. and InoVet Ltd. Each of those companies is involved in veterinary research. Ms. Berthold is the spouse of Gary Berthold, a director of the Company.
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STERLING SHEPPERD. Mr. Shepperd has been an officer of NexxNow since July 2004. During the greater part of the 2009 fiscal year, Mr. Shepperd served as Chief Financial Officer of NexxNow. From November 21, 2008 until August 2009 he also served as its Chief Executive Officer. In 2003 Mr. Shepperd was employed as Sales Manager for JMT Solutions, LLC, which was engaged in the business of direct response marketing in Palm Bay, Florida. From 1999 until he joined JMT Solutions, Mr. Shepperd was employed by DanMark, Inc., an organization engaged in direct response marketing.
SECTION 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR
Effective as of September 1, 2009, the Board of Directors of the Company authorized the filing of an amendment to the Articles of Incorporation of the Company changing its name from "Nexxnow Inc." to "InoLife Technologies Inc." As of the date of this Current Report, the Company is proceeding to file appropriate documentation with FINRA in order to effect the name change on the market.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED . In accordance with Item 9.01(a), the audited financial statements of Inovet Inc. and My Complete Care Inc. willl be filed in a supplemental Current Report on Form 8-K within the next 45 days.
(b) PRO FORMA FINANCIAL INFORMATION. In accordance with Item 9.01(b), our pro forma financial statements are filed in this Current Report are incorporated by reference to thise included in the Company's Annual Report on Form 10-K.
(d) EXHIBITS. The exhibits listed in the following Exhibit Index are filed as part of this Current Report on Form 8-K.
Exhibit Description
Number
10.1 Share Exchnage Agreement by and between Nexxnow Inc., Inovet Ltd. and
the shareholders of Inovet Inc. dated September 17, 2009.
10.2 Tax Free Asset Purchase Agreement by and between Nexxnow Inc., My
Complete Care Inc., and the shareholders of My Complete Care dated
September 17, 2009.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
INOLIFE TECHNOLOGIES INC.
DATE: SEPTEMBER 18, 2009 /s/GARY BERTHOLD
___________________________________
NAME: GARY BERTHOLD
TITLE: PRESIDENT/CHIEF EXECUTIVE OFFICER
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EXHIBIT 10.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement"), effective as of September 17, 2009 (the "Effective Date"), is entered into by and between InoLife Technologies, Inc., a corporation formed under the laws of the State of New York ("Buyer"), InoVet, Ltd., a corporation formed under the laws of Delaware (the "Company"), and the shareholders of the Company, Gary Berthold and Sharon Berthold (collectively, the "Shareholders").
WHEREAS the Shareholders are the registered and beneficial owners of all of the issued and outstanding shares of common stock of the Company (the "Shares");
WHEREAS Buyer is a publicly trading company, whose stock currently trades on the on the Over-the-Counter Bulletin Board under the symbol "NXXN.OB";
WHEREAS subject to approval by the respective Board of Directors, Buyer desires to acquire one hundred percent (100%) of the total issued and outstanding Shares in exchange for 10,000,000 shares of the common stock, par value $0.01, of Buyer representing 100% of the total issued and outstanding shares of Buyer (the "Buyer Shares");
WHEREAS Buyer desires to acquire the Company in exchange for all of the issued and outstanding shares of the Company resulting in the Company becoming a wholly-owned subsidiary of Buyer in a tax-free exchange;
WHEREAS, the parties to this Agreement have agreed to the share exchange subject to the terms and conditions set forth below.
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the mutual premises and the mutual covenants and agreements contained herein, the parties covenant and agree each with the other as follows:
ARTICLE I
EXCHANGE OF STOCK
Section 1.01. EXCHANGE. Upon the terms and subject to the conditions of this Agreement, the Shareholders agree to exchange the Shares for the Buyer Shares and Buyer agrees to issue to the Shareholders 10,000,000 Buyer Shares. The parties intend that the share exchange shall qualify as a tax free reorganization under Section 368 of the Internal Revenue Code. However, Buyer makes no representations or warranties regarding the qualification of the share exchange as "tax free". Buyer shall cooperate with the Company in executing any reasonably necessary documents to qualify the share exchange as tax free.
Section 1.02. DELIVERY OF STOCK. (a) Upon the execution hereof, the Shareholders shall deliver to Buyer all of the stock certificates representing the total issued and outstanding Shares, duly endorsed in blank;
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(b) Upon execution hereof, Buyer shall deliver to the Shareholders stock certificates representing the Buyer Shares in the names and denominations as set forth on Exhibit A hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS
Section 2.01. ORGANIZATION, STANDING AND AUTHORITY; FOREIGN QUALIFICATION. (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware with all requisite power and authority to enter into, and perform the obligations under this Agreement. The Company has all requisite power and authority to own, lease and operate its assets, properties and business and to carry on its business as now being and as heretofore conducted.
(b) The Company is duly qualified or otherwise authorized as a corporation to transact business and is in good standing in each jurisdiction as necessary to conduct business as required by law. The Company does not file any franchise, income or other tax returns in any other jurisdiction other than the State of Delaware, based upon the ownership or use of property therein or the derivation of income there from.
Section 2.02. CAPITALIZATION. The authorized capital of the Company consists of 75,000,000 shares of common stock, par value $.0001 per share, A total of 50,000,000 shares of common stock are issued and outstanding. There are also 1,000,000 shares of preferred stock with a par value of $0.0001 per share. The Shares are the only class of the Company's capital stock that is outstanding. All of the outstanding Shares are duly authorized, validly issued, fully paid and non-assessable and free of preemptive rights.
Section 2.03. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Company has heretofore delivered to Buyer true, correct and complete copies of its Certificate of Incorporation or other documentation evidencing a corporation and By-laws. The minute books of the Company accurately reflect all actions taken at all meetings and consents in lieu of meetings of its stockholders, and all actions taken at all meetings and consents in lieu of meetings of its boards of directors and all committees.
Section 2.04. EXECUTION AND DELIVERY. This Agreement has been duly executed and delivered by each Shareholder and each constitutes the valid and binding agreement of each Shareholder enforceable against such Shareholder in accordance with its terms.
Section 2.05. CONSENTS AND APPROVALS. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby in accordance with the terms and conditions hereof and thereof do not require any Shareholder to obtain any consent, approval or action of, or make any filing with or give any notice to, any person or entity.
Section 2.06. NO CONFLICT. The execution, delivery and performance of each of this Agreement and the consummation of the transactions contemplated hereby and thereby in accordance with the terms and conditions hereof and thereof will not
(a) violate any provisions of the Certificate of Incorporation, By-laws or organizational document of the Company; (b) violate, conflict with or result in any modification of the effect of, otherwise give any other contracting party
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the right to terminate, or constitute (or with notice or lapse of time or both, constitute) a default under, and contract to which any Shareholder or the Company is a party to by or to which any of them or any of their respective assets or properties may be bound or subject; (c) violate any order, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body against, or binding upon or any agreement with, or condition imposed by, any governmental or regulatory body, foreign or domestic, binding upon any Shareholder or the Company or upon the Shares or the properties or business of the Company; (d) violate any statute, law or regulation of any jurisdiction as such statute, law or regulation relates to any Shareholder or the Company; or (e) result in the breach of any of the terms or conditions of, constitute a default under, or otherwise cause an impairment of, any permit.
Section 2.07. TITLE TO STOCK. Each Shareholder has valid title to their respective portion of the Shares free and clear of all liens or encumbrances, including, without limitation, any community property claim. Upon delivery of the Shares to be made on the Closing, Buyer shall acquire good and marketable title thereto, free and clear of any lien, including, without limitation, any community property claim.
Section 2.08. OPTIONS OR OTHER RIGHTS. (a) There are no outstanding rights, subscriptions, warrants, calls, preemptive rights, options, contracts or other agreements of any kind to purchase or otherwise to receive from any Shareholder or from the Company any of the outstanding, unauthorized or treasury shares of the Shares; and (b) there is no outstanding security of any kind convertible into any security of the Company, and, there is no outstanding contract or other agreement to purchase, redeem or otherwise acquire any of the Shares.
Section 2.09. MATERIAL INFORMATION. This Agreement, the financial statements of the Company and all other information provided in writing by the Shareholders or the Company or representatives thereof to Buyer, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make any statement contained herein or therein not misleading. There are no facts or conditions, which have not been disclosed to Buyer in writing which, individually or in the aggregate, could have a material adverse effect on Buyer or a material adverse effect on the ability of any Shareholder to perform any of his or her obligations pursuant to this Agreement.
Section 2.10. FINANCIAL STATEMENTS. The Company has or will have prior to the Closing furnished to Buyer certain financial statements of the Company as set forth in Section 4.11 hereof (the "Financial Statements"). The Financial Statements shall be true, correct and complete in all material respects and fairly present the financial condition of the Company and the results of its operations for the period then ended and shall be prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis.
Section 2.11. ABSENCE OF CERTAIN CHANGES. Since the date of the Financial Statements, there has been no event, change or development which could have a material adverse effect on the Company.
Section 2.12. UNDISCLOSED LIABILITIES. Except as reflected or reserved against in the Financial Statements, as of and for the period reflected therein, the Company was not on that date subject to, and since that date the Company has not incurred, any direct or indirect indebtedness, liability, claim, loss, damage, deficiency, obligation or responsibility, fixed or unfixed, choate or inchoate, liquidated or un liquidated, secured or unsecured, accrued, absolute, contingent or otherwise, of a kind required by generally accepted accounting principles to
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be reflected or reserved against on a financial statement ("Liabilities"), which individually or in the aggregate exceeds $10,000.
Section 2.13. OPERATIONS OF THE COMPANY. Except as contemplated by this Agreement, since the date of the Financial Statements, the Company has not: (a) amended its Certificate of Incorporation or By-laws or merged with or into or consolidated with any other person or entity, subdivided or in any way reclassified any shares of its capital stock or changed or agreed to change in any manner the rights of its outstanding capital stock or the character of its business; (b) issued, reserved for issuance, sold or redeemed, repurchased or otherwise acquired, or issued options or rights to subscribe to, or entered into any contract or commitment to issue, sell or redeem, repurchase or otherwise acquire, any shares of its capital stock or any bonds, notes, debentures or other evidence or indebtedness; (c) incurred any indebtedness for borrowed money or incurred or assumed any other liability in excess of $10,000 in any one case (or, in the aggregate, in the case of any related series of occurrences) or $25,000 in the aggregate; (d) declared or paid any dividends or declared or made any other distributions of any kind to its stockholders; (e) made any change in its accounting methods or practices or made any change in depreciation or amortization policies, except as required by law or generally accepted accounting principles; (f) made any loan or advance to any of its stockholders or to any of its directors, officers or employees, consultants, agents or other representatives, or made any other loan or advance, otherwise than in the ordinary course of business; (g) entered into any lease (as lessor or lessee) under which the Company is obligated to make or would receive payments in any one year of $10,000 or more; sold, abandoned or made any other disposition of any of its assets or properties; granted or suffered any lien on any of its assets or properties; entered into or amended any contracts to which it is a party, or by or to which it or its assets or properties are bound or subject;
(h) made any acquisition of all or a substantial part of the assets, properties, securities or business of any other person or entity; (i) paid, directly or indirectly, any of its material liabilities before the same became due in accordance with its terms or otherwise than in the ordinary course of business;
(j) terminated or failed to renew, or received any written threat (that was no subsequently withdrawn) to terminate or fail to renew, any contract that is or was material to the assets, liabilities, business, property, operations, prospects, results of operations or condition (financial or otherwise of the Company); or (k) entered into any other contract or other transaction that materially increases the Liabilities of the Company.
Section 2.14 COMPLIANCE WITH LAWS. The Company is not in violation of any applicable order, judgment, injunction, award or decree nor is it in violation of any Federal, provincial, state, local or foreign law, ordinance or regulation or any other requirement of any governmental or regulatory body, court or arbitrator, other than those violations which, in the aggregate, would not have a material adverse effect on the Company, neither the Company nor any Shareholder has received written notice that any violation is being alleged.
Section 2.15. ACTIONS AND PROCEEDINGS. There are no outstanding orders, judgments, injunctions, awards or decrees of any court, governmental or regulatory body or arbitration tribunal against or involving the Company, or against or involving any of the Shares. There are no actions, suits or claims or legal, regulatory, administrative or arbitration proceedings pending or, to the knowledge of any of the Shareholders threatened against or involving the Company.
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Section 2.16. CONTRACTS. (a) Schedule 2.16 sets forth all of the contracts hereinafter in this Section 2.16 referred to, to which the Company is a party or by or to which the Company or its assets or properties are bound or subject:
(i) Contracts with any current or former officer, director, employee, consultant, agent or other representative having more than three months to run from the date hereof or providing for an obligation to pay and/or accrue compensation of $10,000 or more per annum, or providing for the payment of fees or other consideration in excess of $10,000 in the aggregate to any officer or director of the Company, or to any other entity in which the Company has an interest;
(ii) Contracts for the purchase or sale of equipment or services that contain an escalation, renegotiation or predetermination clause or that can be cancelled without liability, premium or penalty only on ninety days' or more notice;
(iii) Contract for the sale of any of its assets or properties or for the grant to any person of any preferential rights to purchase any of its or their assets or properties;
(iv) Contracts (including with limitation, leases of real property) calling for an aggregate purchase price or payments in any one year of more than $10,000 in any one case (or in the aggregate, in the case of any related series of contracts);
(v) Contracts relating to the acquisition by the Company of any operating business of, or the disposition of any operating business by, any other person;
(vi) executor Contracts relating to the disposition or acquisition of any investment or of any interest in any person; (vii) Contracts under which it agrees to indemnify any party, other than in the ordinary course of business or in amounts not in excess of $10,000, or to share tax liability of any party;
(viii) Contracts containing covenants of the Company not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with in any line of business or in any geographical area;
(ix) Contracts relating to the making of any loan by the Company;
(x) Contracts relating to the borrowing of money by the Company or the direct or indirect guaranty by the Company of any obligation for, or an agreement by the Company to service, the repayment of borrowed money, or any other contingent obligations in respect of indebtedness of any other person, including, without limitation, (a) any contract relating to the maintenance of balances, (b) any contract with respect to lines of credit, (c) any contract to advance or supply funds to any other person other than in the ordinary course of business, (d) any contract to pay for property, products or services of any other person even if such property, products or services are not conveyed, delivered or rendered, (e) any keep-well, make-whole or maintenance of working capital or earnings or similar contract, or (f) any guaranty with respect to any lease or other similar periodic payments to be made by any other person;
(xi) Contracts for or relating to computers, computer equipment, computer software or computer services; and (xii) any other material contract whether or not made in the ordinary course of business.
(b) There have been delivered or made available to Buyer true, correct and complete copies of each of the contracts. Each such contract is valid, subsisting, in full force and effect and binding upon the parties thereto in
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accordance with its terms, and neither the Company nor any of the Company's other affiliates, as the case may be, is in default in any respect under any of them.
Section 2.17 INTELLECTUAL PROPERTY. All patents and other intellectual property, including all inventions, designs, models, processes, and applications for patents owned or used by the Company or in which or to which it has any rights, licenses or immunities are described and set forth with particularity in Schedule 2.17 along with information as to the Company's ownership thereof or licenses, rights or immunities therein and registrations thereof. The Company has not infringed on, misappropriated or otherwise conflicted with and is not now infringing on, misappropriating or otherwise conflicting with any patent or other intellectual property right belonging to any person. The Company is not a party to any license agreement or arrangement, whether or licensee, licensor or otherwise, with respect to any patent, application for patent, invention, design, model, process, trade secret or formula not set forth in Schedule 2.17. To the Shareholders' knowledge, the Company has the right and authority to use all patents, applications for patents, inventions, trade secrets, processes, models, designs, formulas and other intellectual property rights as are necessary to enable it to conduct and to continue to conduct all phases of the Company's business in the manner presently conducted and such use does not and will not conflict with, infringe on or misappropriate any patent or other rights of any person.
Section 2.18. LIENS. The Company has marketable title to all of its assets and properties free and clear of any lien.
Section 2.19. OFFICERS, DIRECTORS AND KEY EMPLOYEES. The Company does not have any contract or agreement with any of its officers, directors, employees or consultants whose annual salary equals or exceeds $25,000 or who received or has accrued in respect of such period a bonus equal to or in excess of $5,000; and the Company does not have any commitments or contracts to increase the wages or to modify the condition or terms of employment or consultancy of any of the employees or consultants of the Company, including the aggregate cost to the Company of all such commitments or contracts.
Section 2.20. BROKERAGE. No brokerage fees are to be paid in relation to this transaction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Shareholders as follows:
Section 3.01. ORGANIZATION, STANDING AND AUTHORITY OF BUYER. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and has all requisite corporate power and authority to own or lease its assets as now owned or leased by it and to otherwise conduct its business. All corporate proceedings required by law or by the provisions of this Agreement to be taken by Buyer on or before the Closing in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been or will be duly and validly taken.
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Section 3.02. EXECUTION AND DELIVERY. This Agreement has been duly authorized, executed and delivered by Buyer and constitutes the valid and binding agreement of Buyer enforceable against Buyer in accordance with its terms.
Section 3.03. CONSENTS AND APPROVALS. The execution, delivery and performance by Buyer of this Agreement and the consummation by Buyer of the transactions contemplated hereby do not require Buyer to obtain any consent, approval or action of, or make any filing with or give any notice to, any person.
Section 3.04. NO CONFLICT. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby in accordance with the terms and conditions hereof will not: (a) violate any provision of the Certificate of Incorporation, By-laws or other organizational document of Buyer; (b) violate, conflict with or result in the breach of any of the terms of, result in any modification of the effect of, otherwise give any other contracting party the right to terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any contract to which Buyer is a party or by or to which its assets or properties may be bound or subject;
(c) violate any order, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body against, or binding upon, or any agreement with, or condition imposed by, any governmental or regulatory body, foreign or domestic, binding upon Buyer or upon the securities, assets or business of Buyer; or (d) violate any statute, law or regulation of any jurisdiction as such statute, law or regulation relates to Buyer or to the securities, properties or business of Buyer.
Section 3.05. CAPITALIZATION. The capital of Buyer is as set forth in Buyer's public securities laws filings.
Section 3.06. BROKERAGE. No broker or finder has acted, directly or indirectly, for Buyer, nor has Buyer incurred any obligation to pay any brokerage, finder's fee or other commission in connection with the transactions contemplated by this Agreement.
Section 3.07. CERTIFICATE OF INCORPORATION AND BY-LAWS. Buyer has heretofore delivered to the Company and the Shareholders true, correct and complete copies of the Certificate of Incorporation and By-laws or comparable instruments of Buyer.
Section 3.08. STATUS OF BUYER SHARES. Upon consummation of the transactions contemplated by this Agreement, the Buyer Shares to be issued to the Shareholders, when issued and delivered, will be free of any and all liens, claims or encumbrances.
Section 3.09 NO BANKRUPTCY. Neither Buyer nor its assets are the subject of any proceeding involving either a voluntary or an involuntary bankruptcy, insolvency or receivership.
Section 3.10 CONTRACTS AND COMMITMENTS. All agreements which materially affect Buyer to which Buyer is a party or by which Buyer or any of its property is bound which exist as of the date of execution of this Agreement have been reviewed by the parties and Buyer is not in default with respect to any material term or condition of any such contract, nor has any event occurred which through the passage of time or the giving of notice, or both, would constitute a default hereunder.
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Section 3.11 COMPLIANCE WITH LAWS. To its knowledge, Buyer is not in violation of any applicable order, judgment, injunction, award or decree nor is it in violation of any Federal, state, local or foreign law, ordinance or regulation or any other requirement of any governmental or regulatory body, court or arbitrator, other than those violations which, in the aggregate, would not have a material adverse effect on Buyer and Buyer has not received written notice that any violation is being alleged.
Section 3.12 STOP TRADE ORDERS. To Buyer's knowledge, there are no pending, and there have never been any, stop trade orders issued against Buyer or any of its directors or officers or those of any affiliates of Buyer by any securities regulatory authority in the United States.
Section 3.13 REGULATORY INVESTIGATIONS. To Buyer's knowledge, there are no investigations or inquiries pending against Buyer or its directors or officers by any stock exchange, securities regulatory authority, taxing authority or any other governmental department or agency.
Section 3.14 CORPORATE RECORDS. All of the minute books and corporate and financial records of Buyer are, or prior to the Closing will be made available for review. In the event of the absence of a complete minute book, representation and warranty by the board of directors shall take precedence over the minute book and shall be incorporated to the minute book.
ARTICLE IV
COVENANTS AND AGREEMENTS
The Shareholders, the Company and Buyer covenant and agree as follows:
Section 4.01. CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing, Buyer shall be entitled, through its employees and representatives, to make such investigation of the assets, liabilities, properties, business and operations of the Company, and such examination of the books, records, tax returns, results of operations and financial condition of the Company, as Buyer wishes. Any such investigation and examination shall be conducted at reasonable times and under reasonable circumstances and the Shareholders and the Company and the employees and representatives of Buyer, including without limitation, their counsel and independent public accountants, shall cooperate fully with such representatives in connection with such review and examination.
Section 4.02. FURTHER ASSURANCES. Each of the parties shall execute such documents and other papers and take such further actions as may be reasonably required or desirable to carry out the provisions hereof and the transactions contemplated hereby. Each such party shall use its best efforts to fulfill or obtain the fulfillment of the conditions to the Closing as promptly as practicable.
Section 4.03. DELIVERY OF FINANCIAL STATEMENTS. (a) On or before the Closing, the Shareholders shall cause the Company to provide the following financial statements to Buyer, which shall collectively be referred to as the "Financial Statements".
(i) Unaudited balance sheets as of the end of each of the two most recent fiscal years or such shorter period as the Company (including its predecessors) has been in existence;
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(ii) Unaudited statements of income and cash flow for each of the three fiscal years preceding the date of the unaudited balance sheet referred to in (1) above or such shorter period as the Company (including its predecessors) has been in existence;
(b) The unaudited financial statements referred to in (a)(i) and (a)(ii) above shall be prepared by an independent certified public accountants or independent chartered accountants that have been duly registered and in good standing. The interim financial statements referred to in (a)(iii) and (a)(vi) above may be unaudited.
Section 4.04 PUBLIC ANNOUNCEMENTS. Except as required by any applicable law, rule or regulation, prior to the Closing, the Company shall not issue nor permit to be issued any press release or otherwise make or permit to be made any public statement with respect to the transactions contemplated by this Agreement without the prior written consent of Buyer.
ARTICLE V
CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE
The obligation of Buyer to enter into and complete the Closing is subject, at Buyer's option acting in accordance with the provisions of this Agreement with respect to the termination hereof, to the fulfillment on or prior to the Closing of the following conditions, any one or more of which may be waived by it, to the extent permitted by law.
Section 5.01. REPRESENTATIONS AND COVENANTS. The representations and warranties of the Shareholders contained in this Agreement shall be true and correct on and as of the Closing with the same force and effect as though made on and as of the Closing, except that any of such representations and warranties that are give as of a particular date and relate solely to a particular date or period shall be true as of such date or period. The Shareholders shall have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing. The Shareholders shall have delivered to Buyer a certificate dated the Closing, and signed by each Shareholder to the foregoing effect.
Section 5.02. GOVERNMENTAL PERMITS AND APPROVALS. All approvals, authorizations, consents, permits and licenses from governmental and regulatory bodies required for the transactions contemplated by this Agreement and to permit the business currently carried on by the Company to continue to be carried on by the Company substantially in the same manner immediately following the Closing shall have been obtained and shall be in full force and effect and without conditions or limitations reasonably unacceptable to Buyer, and Buyer shall have been furnished with appropriate evidence, reasonably satisfactory to it and its counsel, of the granting of such approvals, authorizations, consents, permits and licenses. There shall not have been any action taken by any court, governmental or regulatory body then prohibiting or making illegal on the Closing the transactions contemplated by this Agreement.
Section 5.03. THIRD PARTY CONSENTS. All consents, permits and approvals from parties to contracts with the Company that may be required in connections with the performance by the Shareholders of their obligations under this Agreement or
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the continuance of such contracts with the Company in full force and effect after the Closing shall have been obtained.
Section 5.04. LITIGATION. No action, suit or proceeding shall have been instituted and be continuing or be threatened by any person to restrain, modify or prevent the carrying out of the transactions contemplated hereby, or to seek damages in connection with such transactions, or that has or could have a material adverse effect on the Company.
Section 5.05 NO CHANGE IN CAPITALIZATION. On the Closing, the capitalization of the Company shall be as represented in Section 2.02.
Section 5.06. BOARD AND SHAREHOLDER APPROVAL. Prior to the Closing, the Company will obtain from its Board of Directors and the Shareholders approval of this Agreement and the transactions contemplated hereby.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATION OF
THE SHAREHOLDERS TO CLOSE
The obligation of the Shareholders to enter into and complete the Closing is subject, at the Shareholder's option acting in accordance with the provisions of this Agreement with respect to the termination hereof, to the fulfillment on or prior to the Closing of the following conditions, any one or more of which may be waived by it, to the extent permitted by law.
Section 6.01. REPRESENTATIONS AND COVENANTS. The representations and warranties of Buyer contained in this Agreement shall be true and correct on and as of the Closing with the same force and effect as though made on and as of the Closing, except that any of such representations and warranties that are give as of a particular date and relate solely to a particular date or period shall be true as of such date or period. Buyer shall have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing. Buyer shall have delivered to the Shareholders a certificate dated the Closing, and signed by an appropriate officer of Buyer to the foregoing effect.
Section 6.02. NO CHANGE IN CAPITALIZATION. On the Closing, the capitalization of Buyer shall be as represented in Section 3.05 hereof.
Section 6.03. FILING OF PERIODIC REPORTS. Buyer is current with respect to the filings required to be made by Buyer pursuant to the Securities Exchange Act of 1934 and the rules and regulations of promulgated thereunder and the rules and regulations of the Securities and Exchange Commission.
Section 6.04. QUOTATION ON OVER-THE-COUNTER BULLETIN BOARD. Buyer is trading on the Over-the-Counter Bulletin Board under the ticker symbol NXXN.OB.
Section 6.05. BOARD APPROVAL. Prior to the Closing, Buyer shall obtain the approval of its Board of Directors of this Agreement and the transactions contemplated hereby.
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ARTICLE VII
SURVIVAL AND INDEMNIFICATION
Section 7.01 INDEMNIFICATION BY SHAREHOLDERS. The Shareholders, jointly and severally, will indemnify Buyer, its affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of the Company or any of the Shareholders which survives the Closing, and (ii) any breach of any covenant of the Company and/or the Shareholders contained in this Agreement which requires performance after the Closing Date.
Section 7.02 INDEMNIFICATION BY BUYER. Buyer will indemnify the Shareholders, and each of their agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of Buyer which survives the Closing, and (ii) any breach of any covenant of Buyer contained in this Agreement which requires performance after the Closing Date; provided, however, that Buyer shall not have any liability under clause (i) above unless the aggregate of all losses, liabilities, costs and expenses relating thereto for which Buyer would but for this proviso be liable exceeds on a cumulative basis an amount equal to $5,000, and provided further, however, that Buyer's liability shall in no event exceed the Purchase Price.
Section 7.03 LIMITATIONS OF LIABILITY; COOPERATION. (a) Notwithstanding any provision herein, none of the parties hereto shall in any event be liable to the other parties to this Agreement or to such other parties' affiliates, officers, directors, employees, stockholders, agents or representatives on account of any indemnity obligation set forth in this Article VII for any indirect, consequential, special, incidental or punitive damages (including, but not limited to, lost profits, loss of use, damage to goodwill or loss of business).
(b) The parties hereto acknowledge and agree that their sole and exclusive remedy with respect to any and all claims relating to this Agreement, the transactions contemplated hereby, and the Assets (other than claims of, or causes of action arising from, fraud) shall be pursuant to the indemnification provisions set forth in this Article VII. In furtherance of the foregoing, the parties hereto hereby waive, from and after the Closing, to the fullest extend permitted under applicable Law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) which it may have against any of the other parties hereto and such parties' affiliates arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the indemnification provisions set forth in this Article VII).
(c) The parties shall cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to indemnify the other party hereunder including by making commercially reasonable efforts to mitigate or resolve any such claim or liability.
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Section 7.04 TERMINATION OF INDEMNIFICATION. The obligations to indemnify and hold harmless a party hereto (a) pursuant to Sections 7.01(i) or 7.02(ii) (i.e. on account of a breach of a representation or warranty), shall terminate eighteen (18) months after the date hereof; provided, however that those pursuant to Section 2.07 and 3.08 shall survive indefinitely, and (b) pursuant to any other clause(s) of Section 7.01 or 7.02 shall not terminate; provided, however, that as to clause (a) of this Section 7.04, such obligation to indemnify and hold harmless shall not terminate with respect to any item as to which the person to be indemnified or the related party thereto shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim (stating in reasonable detail the basis of such claim to the indemnifying party).
ARTICLE VIII
MISCELLANEOUS
Section 8.01 TIMING. Time is of the essence of this Agreement and each party hereto agrees and covenants to use their reasonably best efforts to complete the transactions contemplated hereby in a timely manner.
Section 8.02 ADDITIONAL DOCUMENTATION. The parties will execute and deliver such further documents and instruments and do all such acts and things as may be reasonably necessary or requisite to carry out the full intent and meaning of this Agreement and to effect the transactions contemplated by this Agreement.
Section 8.03 MERGER; ASSIGNMENT. This Agreement (a) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof; (b) is not intended to confer upon any other persons any rights or remedies hereunder, except as hereinafter provided; (c) shall be binding on the parties hereto and their respective permitted heirs, executors, personal representatives, successors and assigns, provided that this Agreement may not be assigned by any party hereto without the prior written consent of all parties to this Agreement.
Section 8.04 EXECUTION IN COUNTERPARTS. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which will together constitute one and the same instrument, and may be executed via facsimile transmission or electronic signature, and facsimile transmissions and of signed Agreements or electronic signatures shall be regarded and accepted as if they bore original signatures.
Section 8.05 EXPENSES. Each party will pay its legal expenses incurred in connection with the transactions contemplated hereby, whether or not such transactions are consummated.
Section 8.06 GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to principles of conflicts of law.
[signature page follows]
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IN WITNESS WHEREOF the parties hereto have set their hand and seal as of the day and year first above written.
INOVET, LTD
Date: September 17, 2009 By: /s/ GARY BETHOLD
_____________________________________
Title: PRESIDENT
_____________________________________
Date: September 17, 2009 /s/ GARY BETHOLD
_____________________________________
Gary Berthold
Date: September 17, 2009 /s/ SHARON BERTHOLD
_____________________________________
Sharon Berthold
INOLIFE TECHNOLOGIES, INC.
Date: September 17, 2009 By: /s/ GARY BERTHOLD
_____________________________________
Title: PRESIDENT/CEO
_____________________________________
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EXHIBIT 10.2
TAX FREE EXCHANGE OF ASSETS FOR STOCK
TAX FREE EXCHANGE OF ASSETS FOR STOCK ("this Agreement"), dated as of August 18, 2009 by and among My Complete Care, Inc. ("Seller"), a Florida corporation, and NexxNow, Inc. a New York corporation ("Buyer").
RECITALS:
WHEREAS, Seller desires to convey to Buyer, and Buyer desires to acquire from Seller, in accordance with the provisions of this Agreement, all or substantially all of the assets of Seller with the exception of certain assets (the "Excepted Assets") in exchange for 2,000,000 shares of the stock of Buyer; and,
WHEREAS, subsequent to the exchange of assets for stock, the shareholders of the Seller will agree to dissolve the Seller, and distribute the stock, the Excepted Assets, and the Excepted Liabilities to the shareholders of the Seller in a liquidating distribution which qualifies for a tax free distribution as to the stock and long term capital gains tax treatment for the Excepted Assets;
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF ASSETS FOR STOCK
SECTION 1.1 ASSETS TO BE EXCHANGED. On the terms and subject to the conditions of this Agreement including, without limitation, the provisions of Sections 4.10 and 4.11, on the Closing Date, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall acquire from Seller, all of Seller's right, title and interest in and to the following assets of Seller free and clear of all Liens, except Permitted Liens (all such assets, other than the Excluded Assets, being the "Assets"):
(a) All brands, trade names, trademarks, service marks and pending applications,( being the "Brands"), and all logos and trade dress, and any right to recover for infringement including past infringement;
(b) the goodwill relating to the Brands;
(c) All patents listed (the "Patents"), and any right to recover for infringement including past infringement;
(d) all research and marketing studies owned by Seller which are associated with the Brands and with Seller's product development efforts as related to the Brands;
(e) all formula specifications, trade secrets, technical information, manuals, material specifications, quality assurance and control procedures, material and safety procedure specifications, and documentation, in each case for all products sold or which Seller plans to sell under the Brands (such products, the "Products"), includingbany improvements or line extensions of the Products, or which are in research and development for sale under the
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Brands, and any patent applications relating thereto, and any right to recover for infringement including past infringement;
(f) all rights of Seller to television, radio and print advertisements and copy (including all physical embodiments thereof) associated with the Brands and Products;
(g) all rights of Seller in and to copyrights associated primarily with the Brands, distribution, production, and advertising sales services (the "Services") offered by the Seller and any right to recover for infringement including past infringement;
(h) all rights of Seller (including rights of refund and offset, deposits, rights to sums of money due, claims, causes of action and options) relating or pertaining to any contract or contract right;
(i) all customer lists, supplier lists, accounts, invoices, credit records and performance records associated with the Products or the Services, described more particularly;
(j) those accounts receivable of Seller and other rights of Seller to payment for the Products and Services), including, without limitation, rights to payment that are not evidenced by instruments, whether or not they have been written off or reserved against as a bad debt or doubtful account in any financial statement, together with all instruments representing any of the foregoing, and all rights, title, security and guaranties in favor of Seller with respect to any of the foregoing (the "Accounts");
(k) all Permits used by Seller in connection with the Products and Services;
(l) all insurance proceeds and insurance claims of Seller relating or pertaining to the Assets and, to the extent transferable, the benefit of and the right to enforce the covenants and warranties, if any, that Seller is entitled to enforce with respect to all or any part of the Assets against Seller's predecessors in title to the Assetsl
(m) all tax refunds, credits and/or proceeds thereof; and
(n) trade secrets, know-how, proprietary information, and other intellectual property used and useful in television broadcasting in all forms and in all media, whether now known or hereinafter discovered.
SECTION 1.2 ASSUMPTION OF LIABILITIES. On the terms and subject to the conditions set forth in this Agreement, Buyer shall assume, and agree to pay, perform and discharge when due:
(a) all of the debts, liabilities and obligations of Seller to third parties under the Scheduled Contracts that are specifically set forth on Schedule 1.3 hereto and that are not due prior to Closing, or if no contractual due date is provided for, are not more than ten (10) days past invoice date at Closing;
(b) all of the other debts listed on Schedule 1.4 attached hereto.
(The liabilities listed in clauses (a) and (b) of this Section 1.3 are collectively, the Assumed Liabilities").
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SAVE AND EXCEPT, all of the Excepted Assets, described as the assets directly or indirectly connected to or with contract rights, thereof, including, but not limited to, accounts, deposits, contract rights, and/or proceeds therefrom.
SECTION 1.3 EXCLUDED LIABILITIES. Seller's shareholders shall retain, and be responsible for paying, performing and discharging when due, and Buyer shall not assume or have any responsibility for:
(a) any federal, state or local franchise, income or other taxes or fees of any nature whatsoever attributable to the Assets for periods ending on or prior to the Closing and any penalty (or similar amount) thereon;
(b) any and all products liability lawsuits commenced by third parties or other products liability claims relating to any of the Products manufactured prior to Closing, other than Products that constitute Inventory under Section 1.1(j) and all products liability claims listed on Schedule 2.10 with respect to the Products (such lawsuits and claims, collectively, the "Products Liability Claims");
(c) any accounts due and payable to third parties by Seller as of the Closing Date whether or not arising from or primarily related to the operations of the Assets and including amounts due to third parties as of the Closing Date under the Scheduled Contracts;
(d) Any obligation or liability of Seller arising out of the Assumed Liabilities, which are payable or performable prior to Closing; and
(e) any other liability of Seller other than the Assumed Liabilities.
SECTION 1.4 PURCHASE PRICE. The aggregate purchase price payable by Buyer shall be two million (2,000,000 shares) of restricted common voting stock of the Buyer, non-assessable, and free and clear of any liens, claims, or encumbrances (the "Purchase Price"). On the Closing Date, Buyer will pay the Purchase Price.
SECTION 1.5 ALLOCATION OF PURCHASE PRICE. The purchase price shall be allocated based on the requirements of compliance with the Internal Revenue Code.
SECTION 1.6 PRORATION OF TAXES. With respect to any ad valorem tax imposed on a periodic basis that relates to a period straddling the Closing Date, such tax shall be prorated to the Closing Date, and the portion allocable to the period prior to the Closing Date shall be promptly paid or reimbursed by Seller, and the portion allocable to the period after the Closing Date shall be promptly paid or reimbursed by Buyer.
SECTION 1.7 PURCHASE PRICE ADJUSTMENT. NOT REQUIRED.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, jointly and severally, represents and warrants to Buyer as follows:
SECTION 2.1 ORGANIZATION AND QUALIFICATION. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida, with all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as presently conducted.
SECTION 2.2 AUTHORIZATION. Seller has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Seller, the performance by Seller of its obligations hereunder, and the consummation by Seller of the transactions contemplated hereby, have been duly authorized by the Board of Directors and stockholder of Seller. No other corporate action on the part of Seller is necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Seller and constitutes a valid and binding obligation of Seller, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
SECTION 2.3 NO VIOLATION. The execution and delivery of this Agreement by Seller, the performance by Seller of its respective obligations hereunder, and the consummation by Seller of the transactions contemplated hereby do not (a) violate, conflict with or result in any breach of any provision of the Certificate of Incorporation or Bylaws of Seller, (b) violate, conflict with or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which Seller is a party or by which it or any of its assets is bound, (c) violate any statute, rule, regulation, order, writ, judgment, injunction or decree of any court or Governmental Authority by which the Seller or its assets are bound, or (d) result in the creation of any Lien upon the properties or assets of Seller, except, in the case of clauses (b), (c) and (d), for such violations, breaches or defaults as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect.
SECTION 2.4 GOVERNMENT CONSENTS AND APPROVALS. No filing or registration with, no notice to and no permit, authorization, consent or approval of any Person or Governmental Authority is necessary for the consummation by Seller of the transactions contemplated by this Agreement other than (a) consents and approvals of or filings or registrations with the Antitrust Division of the United States Department of Justice (the "DOJ") pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if required (b) those already obtained and (c) consents, regulations, approvals, authorizations, permits, filings or notifications which are listed in Schedule 2.4 hereto.
SECTION 2.5 TITLE TO ASSETS. (a) Seller owns and has valid title to each of the Assets, free and clear
of all Liens other than Permitted Liens, except for the Assets described in Schedule 2.5, as to which Seller [either (i) owns and has valid title to such property, free and clear of all Liens other than Liens set forth on Schedule 2.5 that shall be released at Closing and Permitted Liens, or (ii)] has adequate, enforceable and transferable long-term licenses or other rights to use (without payment) certain Intellectual Property.
(b) On the Closing Date, each of the Assets shall be operational and all Liens set forth on Schedule 2.5 shall have been released.
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SECTION 2.6 INTELLECTUAL PROPERTY. Except as set forth in Schedule 2.6 the Seller owns or, if expressly stated on Schedule 2.6, has validly licensed, all patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service mark rights, copyrights and other proprietary intellectual property rights (collectively, "Intellectual Property"), which are part of the Assets. Except as set forth Schedule 2.6, no Claims are pending or, to the knowledge of the Seller, threatened that the Seller or any third party is infringing or otherwise adversely affecting the rights of any person with regard to the Intellectual Property. To the knowledge of the Seller, no person is infringing the rights of the Seller with respect to any of the Intellectual Property.
SECTION 2.7 FINANCIAL STATEMENTS. Schedule 2.6 sets forth the un-audited pro-forma statements of earnings before taxes of the Assets for the year ended December 31, 2008 and for the nine months ended September 30, 2009 (such statements, including the related notes thereto, the "Financial Statements"). The Financial Statements are complete and correct in all material respects and present fairly the results of operations of the Assets for the periods indicated.
SECTION 2.8 TAXES. All Taxes that are due and payable by Seller, other than those presently payable without penalty or interest, have been timely paid, and Seller has timely filed (and, through and after the Closing Date, will timely file) all Tax reports and returns required by law to be filed by it. There are no Tax liens upon any properties or assets of Seller nor has notice been given of any event which could lead to any such lien. All monies required for the payment of Taxes not yet due and payable with respect to the operations of Seller through and including the Closing Date have been approved, reserved against and entered upon the books and the Seller Financial Statements. All monies required to be withheld by Seller from employees, if any, independent contractors, or others or collected from customers for income taxes, social security and unemployment insurance taxes and sales, excise and use taxes, and the portion of any such taxes to be paid by Seller to governmental agencies or set aside in accounts for such purpose have been approved, reserved against and entered upon the books and the Seller Financial Statements. Consummation of the transactions will not result in any tax obligations on the Assets, except as set forth in Schedule 2.8.
SECTION 2.9 SCHEDULED CONTRACTS. (a) The Scheduled Contracts:
(i) do not require payment by any party thereto of more than $10,000; (ii) are terminable by Seller upon ninety (90) days' notice or less and without the payment of any material penalty or material termination fee; and (iii) have been entered into in the ordinary course of business.
(b) Schedule 2.9(c) hereto sets forth a true and correct list of all contracts of Seller that are material to the Assets (the "Scheduled Contracts"). Buyer has been provided with true and correct copies of all Scheduled Contracts(or in the case of oral agreements, complete written descriptions), and each such Scheduled Contract is in full force and effect constitute legal, valid and binding obligations of the respective parties thereto and are enforceable in accordance with their respective terms. Seller has not committed any breach or default thereunder, nor to Seller's or Parent's knowledge has any third party to such contracts committed any breach or default thereunder, in each case, which is reasonably likely to have a Material Adverse Effect. All such Scheduled Contracts are in the name of Seller and will be validly assigned to Buyer at the time of the Closing.
(c) As used in this Section 2.9, the word "contract" means and includes every written agreement of any kind which is legally enforceable by or against Seller.
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SECTION 2.10 LITIGATION. (a) Schedule 2.10 sets forth a list of all lawsuits or claims pending, or which, to Seller's or Parent's knowledge, are threatened, against Seller relating to or affecting any of the Assets and which:
(i) involve a Products Liability Claim;
(ii) involve a claim (other than a Products Liability Claim) against Seller of, or which involve an unspecified amount which is reasonably likely to result in a liability of, more than $100,000;
(iii) seek injunctive relief, or
(iv) seek any legal restraint on or prohibition against the transactions contemplated by this Agreement.
(b) The Seller is not a party or subject to any judgment, order, injunction or decree of any Governmental Authority.
SECTION 2.11 Permits. (a) Seller has all franchises, permits, licenses, waivers, authorizations and approvals ("Permits") from Governmental Authorities, including environmental Permits, which are required for Seller to own, sell and operate the Assets.
(b) There are no material defects in the Permits pertaining to the ownership, sale or operation of the Assets, and no procedure is pending or, to Seller's or Parent's knowledge, threatened to revoke or limit any such Permit.
(c) Following the Closing Date, neither Seller nor Parent will undertake, directly or indirectly, any challenges to the Permits relating to the ownership, sale or operation of the Assets.
SECTION 2.12 COMPLIANCE WITH LAWS. The Assets are owned and operated by Seller in compliance with all applicable Laws, and neither Seller nor Parent has received any written notice of violation of any Law from any Governmental Authority relating to any of the Assets or the ownership or operation thereof.
SECTION 2.13 EMPLOYEES. (a) Schedule 2.13(a) sets forth a list of all employees of Seller whose primary responsibility is the research, development, marketing, promotion, production, operation, distribution or sale of the Products or provision of the Services (the "Designated Employees").
(b) None of the Designated Employees are represented by any labor organization.
(c) Except as set forth in Schedule 2.13(c), there are no pending or threatened labor organizing activities, election petitions or proceedings, unfair labor practice complaints, slowdowns, or work stoppages known to Seller, involving any Designated Employee.
(d) Seller has complied with all laws, rules and regulations which relate to wages, hours, discrimination and employment and collective bargaining, and is not liable for any arrears of wages or any taxes or penalties for failure to so comply with any of the foregoing in connection with its employment of the Designated Employees.
SECTION 2.14 EMPLOYEE BENEFIT PLANS. Schedule 2.14 sets forth a true and complete list of each "employee benefit plan" (within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
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("ERISA")), each written employment, severance, retention, termination, consulting or retirement contract, and each bonus or other incentive compensation, stock purchase, stock option, stock award or other equity-based compensation (other than any governmental program) maintained by Seller with respect to the Designated Employees (collectively, "Employee Benefit Plans"). True, correct and complete copies of the Employee Benefit Plans or summary plan descriptions of such Employee Benefit Plans have been provided to Buyer by Seller. All employee benefits required to be paid to the Designated Employees under any Employee Benefit Plans are fully funded and in material compliance with applicable Law.
SECTION 2.15 INVENTORY. NOT APPLICABLE
SECTION 2.16 CUSTOMERS AND SUPPLIERS. Schedule 2.16 sets forth a list of names and addresses of all customers and all suppliers accounting for $10,000 or more of Seller's sales or purchases during the 2009 fiscal year. There exists no actual termination or cancellation of the business relationship of Seller with any customer or group of customers or with any supplier or group of suppliers listed in Schedule 2.16, with respect to which Seller has received written notice of termination or cancellation as the case maybe. To Seller's knowledge, no such termination or cancellation has been threatened.
SECTION 2.17 BROKERS' FEES AND COMMISSIONS. NOT APPLICABLE.
SECTION 2.18 ENVIRONMENTAL MATTERS. Except as set forth in Schedule 2.18 hereto, no notice, citation, summons or order has been issued, no complaint has been filed, no penalty has been assessed and no investigation or review is pending or threatened by any Governmental Authority with respect to
(i) any alleged violation, in the conduct of Seller's business, of any environmental statute, ordinance, rule, regulation or order of any Governmental Authority; (ii) any alleged failure to have any environmental permit, certificate, license, approval, registration or authorization required in connection with the conduct of Seller's business; or, (iii) any generation, treatment, storage, recycling, transportation or disposal of any hazardous or toxic substance or waste (including petroleum products and radioactive materials) generated or used in connection with the conduct of Seller's business. To the knowledge of Seller, Seller has complied with and is in compliance with all Environmental Requirements. To the knowledge of Seller, Seller has not stored, disposed of, arranged for or permitted the disposal of, transported, handled or released any substance, including, without limitation, any hazardous substance, pollutant, contaminant or waste, or owned or operated any facility or property, so as to give rise to liabilities of Seller pursuant to the Environmental Requirements, including, without limitation, any liability of response costs, corrective action, natural resources damages, personal injury, property damage or attorneys fees. To the knowledge of Seller, Seller has taken no action relating to the past or present facilities, properties or operations of Seller that will prevent, hinder or limit continued compliance with the Environmental Requirements, give rise to any investigatory, remedial or corrective obligations pursuant to the Environmental Requirements, or give rise to any other liabilities pursuant to the Environmental Requirements, including any Environmental Requirements relating to onsite or offsite releases or threatened releases of hazardous or otherwise regulated materials, substances or wastes, personal injury, property damages or natural resources damage. Seller has not, either expressly or by operation of law, assumed or undertaken any liability or corrective or remedial obligations of any other person relating to Environmental Requirements.
SECTION 2.19 ACCOUNTS. Schedule 2.19 hereto contains a complete and accurate list of all Seller's Accounts as of the date hereof, showing the name of each account debtor and the amount due from each by invoice number and date. All of such Accounts have arisen in the ordinary course of business for goods sold or services rendered consistent with past practices. Except as set forth on Schedule 2.19 hereto, to the knowledge of Seller there is
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no event or condition with respect to a specific customer that will cause such Accounts to not be collected in full in due course without resort to litigation and such Accounts will not be subject to counterclaim or setoff.
SECTION 2.20 INSURANCE. All the insurance policies maintained by Seller that relate or pertain to the Assets are in full force and effect, all insurance premiums have been timely paid to date, and no such policy will be cancelled by Seller prior to Closing. A description of each of such insurance policies (including, without limitation, insurance providing benefits for employees) is attached to Schedule 2.20 hereto. Such insurance policies provide adequate coverage, less deductibles, against the risks involved in the business and operation of the Assets.
SECTION 2.21 CHANGES SINCE DECEMBER 31, 2008 COMPANY FINANCIAL STATEMENTS. Except as listed or described on Schedule 2.21 hereto, since December 31, 2008 there has not been: (a) any Material Adverse Effect in the financial condition, results of operations, business, business organization or personnel of Seller, or in the relationships of Seller with vendors, suppliers, advertisers, customers, or others; (b) any controversy or unsettled grievance pending or threatened between Seller and any employee of Seller or a collective bargaining organization representing or seeking to represent any such employee, or any negotiation or execution by Seller of any collective bargaining agreement with respect to its employees; (c) any material amendment of any Scheduled Contract; or (d) any agreement by, or commitment of, Seller to do any of the foregoing.
SECTION 2.22 INTERNATIONAL SALES. Schedule 2.22 hereto contains a complete and accurate list of all companies, entities, businesses, whether subsidiaries of Seller or otherwise, that are currently involved in the selling of Assets outside of the United States.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
SECTION 3.1 ORGANIZATION AND QUALIFICATION. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its businesses as now being conducted.
SECTION 3.2 Authorization. Buyer has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. No other corporate proceeding on the part of Buyer is necessary to authorize the execution and delivery of this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Buyer and constitutes a valid and binding obligation of Buyer, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
SECTION 3.3 NO VIOLATION. Neither the execution and delivery of this Agreement by Buyer, the performance by Buyer of its obligations hereunder nor the consummation by Buyer of the transactions contemplated hereby
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will (a) violate, conflict with or result in any breach of any provision of the Certificate of Incorporation or Bylaws (or similar organizational document) of Buyer, (b) violate, conflict with or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which Buyer is a party or by which it or any of its assets is bound, (c) violate any statute, rule, regulation, order, writ, judgment, injunction or decree of any court or Governmental Authority by which Buyer or its assets is bound, or (d) result in the creation of any Lien upon the properties or assets of Buyer, except, in the case of clauses (b), (c) and (d), for such violations, breaches or defaults as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect.
SECTION 3.4 CONSENTS AND APPROVALS. No filing or registration with, no notice to and no permit, authorization, consent or approval of any Person or Governmental Authority is necessary for the consummation by Buyer of the transactions contemplated by this Agreement other than (a) consents and approvals of or filings or registrations with the DOJ pursuant to the HSR Act if required, and (b) consents, regulations, approvals, authorizations, permits, filings or notifications which, in the aggregate, are not reasonably likely to have a Material Adverse Effect.
SECTION 3.5 FEASIBILITY. (a) Buyer has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the television broadcast business. Following the Closing Date, Buyer intends to use the Assets as part of a viable, ongoing broadcast television business.
SECTION 3.6 BROKERS' FEES AND COMMISSIONS. neither Buyer nor any of its subsidiaries, directors, officers, employees or agents has employed any investment banker, broker or finder in connection with the transactions contemplated hereby.
ARTICLE IV
COVENANTS
SECTION 4.1 CONDUCT OF BUSINESS OF SELLER PRIOR TO THE CLOSING. During the period from the date of this Agreement to the Closing, Seller shall take all steps necessary to maintain and operate the Assets in compliance with laws and regulations. Further, during the period from the date of this Agreement to the Closing, Seller shall carry on its business in connection with the Assets in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact its goodwill and on-going business, keep available the services of the Designated Employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it.
SECTION 4.2 ACCESS TO INFORMATION. Between the date of this Agreement and the Closing Date, upon reasonable notice and at reasonable times without significant disruption to the businesses of Seller, Seller will give Buyer and its authorized representatives reasonable access to all offices and other physical facilities related to the Assets, and to all books and records of the Assets as Buyer may reasonably require, and will cause its officers to furnish Buyer such financial and operating data and other information with respect to the Assets, including any and all environmental and other documents and information related to Permits, and any and all financial, sales, marketing, operational information with respect to the Assets, as Buyer may from time to time reasonably request. No investigations by the Buyer or its representatives
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shall reduce or otherwise effect the obligation or liability of Seller with respect to any representations, warranties, covenants or agreements made herein or in an exhibit, schedule or certificate, instrument, agreement or document executed or delivered in connection with this Agreement.
SECTION 4.3 ACCESS TO EMPLOYEES. Between the date of this Agreement and the Closing Date, upon reasonable notice and at reasonable times, Seller will provide Buyer such information with respect to, and access to, (i) the Designated Employees and (ii) all other employees of Seller involved in the research, production, operation, development, marketing and sale of the Assets, in each case, as Buyer shall reasonably request to enable Buyer to make offers of employment to such employees. With respect to the Designated Employees only, Seller shall not otherwise interfere with any negotiations between Buyer and such Designated Employees with respect to such offers of employment, and Buyer shall be entitled to employ each of the Designated Employees subject to consummation of the transactions contemplated by this Agreement. Nothing herein shall be construed as an obligation on the part Buyer to employ the Designated Employees or any other employee of Seller. If hired, Buyer shall be under no responsibility to provide Designated Employees or any other employee of Seller with the same benefits as provided by Seller, and shall not be required to assume any of the current employment contracts of the Designated Employees.
SECTION 4.4 BEST EFFORTS; FURTHER ASSURANCES. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use their best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper and advisable under applicable Laws to consummate and make effective as expeditiously as possible and in any event on or prior to the August 30, 2009 the sale of the Assets contemplated by this Agreement. If at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, including, without limitation, the execution of additional instruments, the parties to this Agreement shall take all such necessary action.
SECTION 4.5 CONSENTS AND APPROVALS. The parties hereto each will cooperate with one another and use all reasonable efforts to prepare all necessary documentation (including, without limitation, furnishing all information required under the HSR Act if required), to effect promptly all necessary filings and to obtain all necessary permits, consents approvals, orders and authorizations of, or any exemptions by, all third parties and Governmental Authorities necessary to consummate the transactions contemplated by this Agreement. Each party will keep the other parties apprised of the status of any inquiries made of such party by the DOJ or any other Governmental Authority or members of their respective staffs with respect to this Agreement or the transactions contemplated hereby. The parties shall obtain shareholder and director approvals of the agreement for a tax-free exchange transaction in a form of corporate resolutions mutually agreeable, and Seller shall file the articles of dissolution with the Secretary of State of Florida, with the distribution of the Assets and the Excepted Assets to the shareholders of the Seller.
SECTION 4.6 PUBLIC ANNOUNCEMENTS. The parties hereto will consult with each other and will mutually agree (the agreement of each party not to be unreasonably withheld) upon the content and timing of any press release or other public statements with respect to the transactions contemplated by this Agreement and shall not issue any such press release or make any such public statement prior to such consultation and agreement, except as may be required by applicable Law or by obligations pursuant to any listing agreement with any securities exchange or any stock exchange regulations; provided, however, that a party which is required to issue a press release or make a public statement pursuant to applicable Law, a listing agreement with any securities exchange or
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a stock exchange regulation, will give reasonable prior notice to the other parties of thecontent and timing thereof.
SECTION 4.7 DISCLOSURE SUPPLEMENTS. From time to time prior to the Closing, Seller will supplement or amend the Schedules to this Agreement with respect to any matter which, if existing or occurring at or prior to the date of this Agreement, would have been required to be set forth or described in Schedule or which is necessary to correct any information in such Schedules which has been rendered inaccurate by an event occurring after the date hereof. No such disclosure made pursuant to this Section shall be considered to constitute or give rise to a waiver by Buyer of any condition set forth herein.
SECTION 4.8 NO IMPLIED REPRESENTATIONS OR WARRANTIES. Seller and Buyer each hereby acknowledge and agree that the other is not making any representation or warranty whatsoever, express or implied, except those representations and warranties explicitly set forth in this Agreement or in the Schedules hereto or in any certificate contemplated hereby and delivered in connection herewith. SECTION 4.9 Confidentiality. Buyer acknowledges that the confidential information being provided to it in connection with the sale and purchase of the Assets contemplated by this Agreement is subject to the terms of a confidentiality agreement between Buyer and Parent (the "Confidentiality Agreement"), the terms of which are incorporated herein by reference. Effective upon, and only upon, the Closing, the Confidentiality Agreement shall terminate with respect to the manner in which Buyer is obligated to treat confidential information relating to the Assets; provided that Buyer acknowledges that any and all other confidential information provided to it by Seller, and it's representatives concerning Seller's operations other than the Assets shall remain subject to the terms and conditions of the Confidentiality Agreement after the Closing Date. Further, effective upon Closing, Seller shall assume the obligations of Buyer under the Confidentiality Agreement with respect to confidential information relating to the Assets that were, prior to Closing, the obligations of Buyer, with the result that following Closing, Seller shall have the same obligations and Buyer shall have the same rights with respect to the confidential information relating to the Assets as if Buyer had been the party whose confidential information was protected under the Confidentiality Agreement.
SECTION 4.10 FORBEARANCES BY SELLER. Seller covenants that except as contemplated by this Agreement, Seller shall not, after the date hereof and prior to the Closing Date, without the prior written consent of Buyer:
(a) sell any Assets not in the ordinary course of business;
(b) encumber any of the Assets;
(c) enter into any employment, independent contractor agreement or similar arrangement with any Designated Employee;
(d) take any action, or fail to take any action, the result of which can reasonably be expected to be a termination of or default under any Scheduled Contracts or Permits;
(e) amend, modify or terminate, or agree to amend, modify or terminate any Scheduled Contracts; (f) fail to maintain the confidential treatment of or otherwise fail to preserve any of its proprietary rights; or (g) enter into any agreement to do any of the things described in clauses (a) through (f) above.
SECTION 4.11 APPROVAL OF THIRD PARTIES. As soon as practicable after the execution of this Agreement, Seller will use its best efforts to obtain all necessary approvals and consents of all third parties required for the valid assignment of the Scheduled Contracts or otherwise required on the part of Seller for the consummation of the transactions (the "Third Party
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Consents"). Buyer will reasonably cooperate with Seller in securing any necessary consents from, or in making any filings with or giving any notice to any third parties necessary for Seller to comply with this Section 4.11. Notwithstanding any other provision of this Agreement, to the extent that the assignment by Seller of any Scheduled Contracts or Permits to be assigned hereunder shall require the consent or approval of another party thereto, the consummation of the transactions shall not constitute an assignment or attempt at an assignment thereof if such assignment or attempted assignment would constitute a breach thereof. If any Third Party Consent with respect to any one or more Scheduled Contracts or Permits is not obtained at or prior to Closing, each party hereto agrees to take whatever action may be necessary to provide Buyer with the benefits of such Scheduled Contracts and Permits, subject to the assumption by Buyer of Seller's obligations thereunder. The Seller shall obtain shareholder and director approvals of the tax free exchange of assets for stock in a form mutually agreeable, and file the articles of dissolution of Seller with the distribution of the Assets and the Excepted Assets to the shareholders of the Seller.
SECTION 4.12 Seller shall give prompt written notice to Buyer and Buyer shall give prompt notice to Seller of:
(a) any representation or warranty made by it contained in this Agreement which has become untrue or inaccurate; or
(b) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement be complied with or satisfied by it under this Agreement; provided, however, that such notification shall not excuse or otherwise effect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
SECTION 4.13 EXCLUSIVITY. From and after the date hereof, to and including the Closing Date, neither Seller nor any stockholders, officers, directors, employees or agents of either shall directly or indirectly solicit, initiate or engage in or continue (including without limitation, furnishing any information concerning the Assets) discussions, inquiries or proposals, or enter into any negotiations for the purpose or with the intention of leading to any proposal, concerning the acquisition or purchase by any other party of the Assets or any part thereof, except in the latter case, in the ordinary course of business of Seller.
SECTION 4.14 MAINTENANCE OF RECORDS. Buyer and Seller will keep and maintain for a period of three (3) years from the Closing Date all material documents and records relating to the Assets. Upon request the parties shall make such documents and records available to the requesting party or its designated representatives for inspection and copying, at the requesting party's expense, during regular business hours in order to permit the requesting party to (a) prepare for, dispute or respond to any claim, law suit or proceeding, including without limitation, audits in connection with tax returns, and (b) comply with Laws applicable to Buyer or Seller or any of their affiliates; provided, however, that any such inspection pursuant to this Section 4.14 shall be conducted insuch a manner so as not to unreasonably interfere with the normal conduct of the business of the party responding to the request.
SECTION 4.15 NO SOLICITATION OR HIRING. Seller covenant and agree that for a period of twelve months following the date of this Agreement, they will not directly or indirectly on their own behalf or on behalf of any third party, employ or engage as a consultant or in any other capacity, any employee of Buyer without Buyer's consent, excepting the management consultant agreement.
ARTICLE V
CLOSING CONDITIONS
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SECTION 5.1 Conditions to Each Party's Obligations Under this Agreement. The respective obligations of each party under this Agreement shall be subject to the fulfillment at or prior to the Closing of the following conditions:
(a) any waiting period, if any, applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have expired or been terminated; and
(b) no injunction, restraining order or other ruling or order issued by any court of competent jurisdiction or Governmental Authority or other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby shall be in effect.
SECTION 5.2 CONDITIONS TO THE OBLIGATIONS OF BUYER UNDER THIS AGREEMENT. The obligations of Buyer under this Agreement shall be further subject to the satisfaction, at or prior to the Closing, of the following conditions:
(a) each of the obligations of Seller required to be performed by Seller at or prior to the Closing pursuant to this Agreement shall have been duly performed and complied with in all material respects;
(b) the representations and warranties of Seller contained in this Agreement which are not qualified with respect to materiality shall be true and correct, and the representations and warranties of Seller which are qualified with respect to materiality shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made at and as of the Closing (except as to any representation or warranty which specifically relates to an earlier date, which shall be true and correct as of such earlier date);
(c) any and all permits, consents, waivers, clearances, approvals and authorizations of all third parties and Governmental Authorities which are necessary in connection with the consummation of the transactions contemplated hereby shall have been obtained, other than items which, if not obtained, would not have a Material Adverse Effect;
(d) Seller shall have executed and delivered an affidavit, in a form reasonably satisfactory to Buyer, stating, under penalties of perjury, Seller's United States taxpayer identification number and that Seller is not a foreign person within the meaning of Section 1445 of the Code;
(e) There shall have occurred no Material Adverse Effect (whether or not covered by insurance) in the Assets or business of Seller relating to the Assets since [Jan 30, 2009];
(f) Any and all amendments or supplements to the Disclosure Schedules shall be acceptable in form and substance to Buyer, in its absolute discretion; and
(g) Sellers shall provide an agreement,
SECTION 5.3 CONDITIONS TO THE OBLIGATIONS OF SELLER UNDER THIS AGREEMENT. The obligations of Seller under this Agreement shall be further subject to the satisfaction, at or prior to the Closing, of the following conditions:
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(a) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects;
(b) the representations and warranties of Buyer contained in this Agreement which are not qualified with respect to materiality shall be true and correct, and the representations and warranties of Buyer which are qualified with respect to materiality shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing as though made at and as of the Closing (except as to any representation or warranty which specifically relates to an earlier date, which shall be true and correct as of such earlier date);
(c) Seller shall have received a certificate signed by a duly authorized officer of Buyer certifying as to compliance with Sections 5.3 (a) and (b); and
(d) any and all permits, consents, waivers, clearances, approvals and authorizations of all Governmental Authorities which are necessary in connection with the consummation of the transactions contemplated hereby shall have been obtained, other than items which, if not obtained, would not have a Material Adverse Effect.
SECTION 5.4 CASUALTY LOSS. All risk of loss arising out of fire and casualty to the Assets prior to the Closing Date shall be that of Seller. If, prior to Closing, any of the Assets are damaged or destroyed by fire or other casualty, so as to constitute a Material Adverse Effect, Buyer may either terminate this Agreement by written notice to Seller or proceed to close the transactions made the subject of this Agreement. If Buyer elects to close despite such damage or destruction, Buyer at its option may either (a) elect to reduce the Purchase Price by an amount equal to the diminishment of the value of the damaged Assets, or (b) pay the Purchase Price upon assignment by Seller of Seller's right, title and interest in and to all insurance proceeds resulting or to result from said damage or destruction.
ARTICLE VI
CLOSING
SECTION 6.1 CLOSING. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Seller or at such other time and place and on such other date as Buyer and Seller shall agree (the "Closing Date"). Buyer shall, at its option, have the right to extend the Closing Date by not more than thirty (30) days by giving written notice thereof to Seller at least three (3) business days prior to the Closing Date. If Buyer exercises its option hereunder to extend the Closing Date, the term "Closing Date" as used herein shall mean and refer to such Closing Date as extended. At the Closing:
(a) Seller shall deliver or cause to be delivered to Buyer the following:
(i) the certificate described in Section 5.2(c);
(ii) properly executed bills of sale, certificates of title or other instruments of conveyance of title, in form reasonably acceptable to Buyer, sufficient to pass title to the Assets to Buyer, free and clear of all liens; and
(iii) the affidavit described in Section 5.2(e).
(iv) resolutions of requisite majorities of shareholders and directors approving the Tax Free Exchange of Stock for Assets and the transaction.
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(b) Buyer shall deliver or cause to be delivered to Seller the following:
(i) the certificate described in Section 5.3(c);
(ii) evidence of payment of the Purchase Price (less the Holdback Amount) by wire transfer of immediately available funds, to an account designated by Seller;
(iii) a counterpart signature page to the Transitional Manufacturing Agreement contemplated by Section 4.10; and
(iv) a counterpart signature page to the License Agreement contemplated by Section 4.11.
(v) resolutions of requisite majorities of shareholders and directors approving the Tax Free Exchange of Stock for Assets and the transaction
ARTICLE VII
TERMINATION AND ABANDONMENT
SECTION 7.1 TERMINATION. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual consent of Seller and Buyer;
(b) by either Seller or Buyer: (i) if a court of competent jurisdiction or Governmental Authority shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto shall use their best efforts to lift), in each case permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; or (ii) if the Closing shall not have occurred on or before july 31, 2009; provided, however, that the right to terminate this Agreement shall not be available to any party whose breach of this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date.
SECTION 7.2 PROCEDURE AND EFFECT OF TERMINATION. In the event of termination and abandonment of the transactions contemplated hereby pursuant to Section 7.1, written notice thereof shall forthwith be given to the other parties to this Agreement and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned, without further action by any of the parties hereto. If this Agreement is terminated as provided herein, no party hereto shall have any liability or further obligation to any other party to this Agreement resulting from such termination except (a) that the provision of this Section 7.2 and the proviso of Section 7.1(b) shall remain in full force and effect and (b) no party waives any claim or right against a breaching party to the extent that such termination results from the breach by a party hereto of any of its representations, warranties, covenants or agreements set forth in this Agreement.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
SECTION 8.1 INDEMNIFICATION BY SELLER. Seller's shareholders will jointly indemnify Buyer, its affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of Seller and/or Parent which survives the Closing, and (ii) any breach of any covenant of Seller contained in this Agreement which requires performance after the Closing Date.
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SECTION 8.2 INDEMNIFICATION BY BUYER. Buyer will indemnify Seller, it's affiliates and each of it's respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from (i) any breach of any representation or warranty of Buyer which survives the Closing, and (ii) any breach of any covenant of Buyer contained in this Agreement which requires performance after the Closing Date; provided, however, that Buyer shall not have any liability under clause (i) above unless the aggregate of all losses, liabilities, costs and expenses relating thereto for which Buyerwould but for this proviso be liable exceeds on a cumulative basis an amount equal to $5,000, and provided further, however, that Buyer's liability under clause (i) above shall in no event exceed $10,000 and under clause (ii) above shall in no event exceed the Purchase Price.
SECTION 8.3 LIMITATIONS OF LIABILITY; Cooperation. (a) Notwithstanding any provision herein, none of the parties hereto shall in any event be liable to the other parties to this Agreement or to such other parties' affiliates, officers, directors, employees, stockholders, agents or representatives on account of any indemnity obligation set forth in this Article VIII for any indirect, consequential, special, incidental or punitive damages (including, but not limited to, lost profits, loss of use, damage to goodwill or loss of business).
(b) The parties hereto acknowledge and agree that should the Closing occur, their sole and exclusive remedy with respect to any and all claims relating to this Agreement, the transactions contemplated hereby, and the Assets (other than claims of, or causes of action arising from, fraud) shall be pursuant to the indemnification provisions set forth in this Article VIII . In furtherance of the foregoing, the parties hereto hereby waive, from and after the Closing, to the fullest extend permitted under applicable Law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) which it may have against any of the other parties hereto and such parties' affiliates arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the indemnification provisions set forth in this Article VIII).
(c) The parties shall cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to indemnify the other party hereunder including by making commercially reasonable efforts to mitigate or resolve any such claim or liability.
SECTION 8.4 TAX TREATMENT OF PAYMENTS UNDER ARTICLE VIII. Seller and Buyer mutually agree that unless otherwise required by applicable Law or a taxing authority, all payments received by an Indemnified Party from an Indemnifying Party pursuant to the provisions of this Article VIII shall be treated for tax purposes as an adjustment to the Consideration. Where the receipt of any such payment is treated for tax purposes in a manner other than an adjustment to the Consideration, the amount of the payment shall be increased to take account of any net tax cost actually incurred by the Indemnified Party in respect thereto. In computing the amount of any such tax cost, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising in respect of a payment pursuant to this Article VIII.
SECTION 8.5 Termination of Indemnification. The obligations to indemnify and hold harmless a party hereto (a) pursuant to Sections 8.1(i) or
8.2(i) (I.E. ON ACCOUNTOF A BREACH OF A REPRESENTATION OR WARRANTY), shall terminate when the applicable representation or warranty terminates pursuant to
Section 10.12 and (b) pursuant to any other clause(s) of Section 8.1 or 8.2 shall not terminate; provided, however, that as to clause (a) of this Section
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8.5, such obligation to indemnify and hold harmless shall not terminate with respect to any item as to which the person to be indemnified or the related party thereto shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim (stating in reasonable detail the basis of such claim to the indemnifying party).
ARTICLE IX
DEFINITIONS
SECTION 9.1 DEFINITIONS. As used in this Agreement, the following terms have the following meanings:
"affiliate" means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, another person.
"Agreement" means this Asset Purchase Agreement, including all Schedules and exhibits attached to it, as the same may be amended or supplemented from time to time in accordance with its terms.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Environmental Requirements": All federal, state, foreign and local laws, statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and the like of any Governmental Authority, and all obligations concerning public health and safety, worker health and safety, or pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of any hazardous or otherwise regulated materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation.
"Governmental Authority" means any government or governmental or regulatory body thereof, or political subdivision thereof, whether federal, state, local or foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).
"Law" means any federal, state, local or foreign law (including common law), statute, code, ordinance, rule, regulation or other requirement.
"Liens" means all claims, liens, security interests, pledges, leases, conditional sale contracts, rights of first refusal, options, charges, liabilities, obligations, agreements, easements, powers of attorney, limitations, reservations, restrictions and other encumbrances of any kind.
"Material Adverse Effect" means a material adverse effect on the business, operations, liabilities, properties, assets or financial condition of Seller, or in the ability of Seller to consummate the sale of the Assets contemplated by the Agreement; and in the case of Buyer, means a material adverse effect on the business, operations, liabilities, properties, assets or financial condition of Buyer or in the ability of Buyer to consummate the purchase of the Assets contemplated by the Agreement.
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"Permitted Liens" means collectively, mechanics', carriers', workmen's repairmen's or other like liens arising or incurred in the ordinary course of business; liens for taxes, assessments and other governmental charges which are not due and payable or which may thereafter be paid without penalty; and other imperfections of title or encumbrances, if any, none of which liens, title imperfections or encumbrances would individually or in the aggregate is reasonably likely to have a Material Adverse Effect. "Person" means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or, as applicable, any other entity.
"Scheduled Contracts" means contracts and agreements with third parties relating to the sale of promotion and placement of the Products or other products, which Seller plans to sell under the Brands or which are in research and development for sale under the Brands, including without limitation supply agreements, purchase and sale orders, agreements with retailers and licensing agreements.
"Taxes" means any federal, state, local or foreign income, sales, excise, real or personal property or other taxes, assessments, fees, levies, imposts, duties, deductions or other charges of any nature whatsoever (including, without limitation, inherent or implied by an law, role or regulation
SECTION 9.2 SINGULAR/PLURAL. The terms defined in the singular have a comparable meaning when used in the plural, and vice versa.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 AMENDMENTS AND WAIVERS. (a) This Agreement may be amended, modified or supplemented only by a written instrument executed by all of the parties hereto.
(b) The provisions of this Agreement may be waived only by an instrument in writing executed by the party granting the waiver. The waiver by any party to this Agreement of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
SECTION 10.2 FURTHER ASSURANCES. If at any time after the Closing, Buyer reasonably determines that any further conveyances, assignments, certificates, filings, instruments or documents or any other things are necessary or desirable to vest, perfect or confirm in Buyer title to any of the Assets or to otherwise consummate the transactions contemplated by this Agreement, Seller will, upon request, promptly execute and deliver all such proper deeds, assignments, certificates, filings, instruments and documents and do all things reasonably necessary and proper to vest, perfect or confirm title to such Assets in Buyer and otherwise to carry out the purposes of this Agreement.
SECTION 10.3 SEVERABILITY. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.
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SECTION 10.4 EXPENSES AND OBLIGATIONS. Except as otherwise provided elsewhere in this Agreement, each party shall be responsible for its costs and expenses, including all fees and expenses of attorneys, investment bankers, lenders, financial advisors and accountants, in connection with the negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, whether or not such transactions are consummated.
SECTION 10.5 PARTIES IN INTEREST. This Agreement shall inure to the benefit of and be binding upon Buyer, Seller, and their respective successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than Buyer, Seller, Parent, and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 10.6 NOTICES. All notices, requests, demands and other communications which are required or may be given under this Agreement must be in writing and be addressed to the party to be notified and sent to the address or facsimile number indicated below. All such notices, requests, demands and communications will be deemed to have been given: (a) if delivered personally when delivered, (b) if sent by telecopy or facsimile, upon transmission, (c) if delivered overnight by a recognized air courier service, with all charges prepaid, one business day after deposit with the service, and (d) if sent by registered or certified mail, return receipt requested, with proper postage prepaid, upon actual receipt.
Notices to Buyer:
NexxNow, Inc.
Notices to Seller:
My Complete Care, Inc.
SECTION 10.7 GOVERNING LAW. This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be enforced in such state and without regard to the principles thereof relating to conflicts of law.
SECTION 10.8 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. SECTION 10.9 Headings. The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not affect in any way the meaning or interpretation of this Agreement.
SECTION 10.10 ENTIRE AGREEMENT. This Agreement, including the Schedules and exhibits attached hereto, and the Confidentiality Agreement embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein or therein. There are no agreements, representations, warranties or covenants other than those expressly set forth herein or therein. This Agreement, including the Schedules and exhibits attached hereto, and the Confidentiality Agreement supersede all prior agreements and understandings between the parties with respect to such subject matter.
SECTION 10.11 ASSIGNMENT. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by Buyer, Seller (including by operation of law in connection with a merger, or sale of
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substantially all the assets, of any party hereto) without the prior consent of the other parties hereto. Any attempted assignment in violation of this Section 10.11 shall be void.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
NexxNow, Inc.
By: /s/GARY S. BERTHOLD
_______________________
Name: Gary S. Berthold
Title: Chairman/CEO
My Complete Care, Inc.
By: /s/ EDGAR ARVELO
_______________________
Name: Edgar Arvelo
Title: President
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