EX-2a
AGREEMENT TO ACQUIRE EZ TRAC LABS
This Agreement between 37 Point9 ("TSPN"), with principle executive
offices located at 000 Xxxx X Xx., Xxxxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000, a
corporation duly organized and in good standing under the laws of Nevada, and
Stason Pharmaceuticals, Inc., a corporation duly organized and in good standing
under the laws of California ("Stason"), with U.S. offices located at 11 Xxxxxx,
Irvine, California 92618-2005 (the "Agreement"), for TSPN to acquire Stason's
interest in EZ Trac Lab operation, a 100% owned division of Stason ("IMT") plus
all related tangible and intangible assets is hereby entered into on this 1st
day of November, 2002.
RECITALS:
WHEREAS, the Boards of Directors of TSPN and Xxxxxx xxxx it advisable
and in the best interests of their respective shareholders to enter into this
Agreement by which TSPN acquires 100% of Stason's interest in the IMT EZ Trac
Lab operation plus all related tangible and intangible assets for the sum of
$175,000, payable in the common stock in TSPN in accordance with terms and
conditions set out below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
and the agreements set forth herein, and in reliance upon the representations
and warranties by the respective parties contained herein, the parties hereto
covenant and agree as follows:
ARTICLE 1.
1.1 TSPN TO ISSUE $175,000 IN COMMON STOCK. As of the date of this Agreement,
TSPN agrees to issue to the shareholders of Stason common stock of TSPN
equivalent to the amount of $175,000 in exchange for 100% interest in
Stason's revenue stream of IMT EZ Trac Lab operation plus all related
rights thereto, to include any and all licenses currently or in the future
owned by IMT, which are to be licensed to TSPN on a non-exclusive basis for
a period of seven years, renewable seven times at the option of TSPN, for
an annual consideration of $1.00 U.S., for the purpose of conducting the
business of IMT.
1.2 STASON ASSIGNS 100% INTEREST TO TSPN. For consideration of $175,000 payable
in the common stock of TSPN, Stason sells all of the income stream and
related rights under its operations of Stason's IMT EZ Trac Lab operation
plus all related tangible and intangible assets to TSPN.
1.3 FINDER'S FEE: TSPN will pay a finder's fee of 10%, amounting to $17,500 in
equivalent shares of TSPN to Xxxxx X. Xxxxxx or his designee(s).
ARTICLE 2.
2.1 CHOICE OF LAW. This Agreement, and any dispute arising from the
relationship between the parties to this Agreement, shall be governed by
California law, excluding any laws that direct the application of another
jurisdiction's laws.
2.2 ATTORNEY FEES PROVISION. In any litigation, arbitration, or other
proceeding by which one party either seeks to enforce its rights under this
Agreement (whether in contract, tort, or both) or seeks a declaration of
any rights or obligations under this Agreement, the prevailing party shall
be awarded its reasonable attorney fees, and costs and expenses incurred.
2.3 NOTICE. Any notices required or permitted to be given hereunder shall be
given in writing and shall be delivered (a) in person, (b) by certified
mail, postage prepaid, return receipt requested, (c) by facsimile, or (d)
by a commercial overnight courier that guarantees next day delivery and
provides a receipt, and such notices shall be addressed as follows:
For TSPN: Xxxxxxx X. Xxxxx, 0000 Xxxxxx Xxxxxx, #000, Xxx Xxxxx, XX 00000.
For Stason: Xxxxx Fan, 11 Xxxxxx, Irvine, California 92618-2005
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be effective only upon delivery,
which for any notice given by facsimile shall mean notice which has been
received by the party to whom it is sent as evidenced by confirmation slip.
2.4 MODIFICATION OF AGREEMENT. This Agreement may be supplemented, amended, or
modified only by the mutual agreement of the parties. No supplement,
amendment, or modification of this Agreement shall be binding unless it is
in writing and signed by all parties.
2.5 ENTIRE AGREEMENT. This Agreement and all other agreements, exhibits, and
schedules referred to in this Agreement constitute(s) the final, complete,
and exclusive statement of the terms of the agreement between the parties
pertaining to the subject matter of this Agreement and supersede all prior
and contemporaneous understandings or agreements of the parties. This
Agreement may not be contradicted by evidence of any prior or
contemporaneous statements or agreements. No party has been induced to
enter into this Agreement by, nor is any party relying on, any
representation, understanding, agreement, commitment or warranty outside
those expressly set forth in this
2.6 SEVERABILITY OF AGREEMENT. If any term or provision of this Agreement
is determined to be illegal, unenforceable, or invalid in whole or in part
for any reason, such illegal, unenforceable, or invalid provisions or part
thereof shall be stricken from this Agreement, and such provision shall not
affect the legality, enforceability, or validity of the remainder of this
Agreement. If any provision or part thereof of this Agreement is stricken
in accordance with the provisions of this section, then this stricken
provision shall be replaced, to the extent possible, with a legal,
enforceable, and valid provision that is as similar in tenor to the
stricken provision as is legally possible.
2.6 SURVIVAL. Except as otherwise expressly provided in this Agreement,
representations, warranties, and covenants contained in this Agreement, or
in any instrument, certificate, exhibit, or other writing intended by the
parties to be a part of this Agreement, shall survive for the maximum
number of years as provided for under the law of the State of California
after the date of this Agreement.
2.7 AMBIGUITIES. Each party and its counsel have participated fully in the
review and revision of this Agreement. Any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall
not apply in interpreting this Agreement. The language in this Agreement
shall be interpreted as to its fair meaning and not strictly for or against
any party.
2.8 WAIVER. No waiver of a breach, failure of any condition, or any right or
remedy contained in or granted by the provisions of this Agreement shall be
effective unless it is in writing and signed by the party waiving the
breach, failure, right, or remedy. No waiver of any breach, failure, right,
or remedy, whether or not similar, nor shall any waiver constitute a
continuing waiver unless the writing so specifies.
2.9 HEADINGS. The headings in this Agreement are included for convenience only
and shall neither affect the construction or interpretation of any
provision in this Agreement nor affect any of the rights or obligations of
the parties to this Agreement.
3.0 NECESSARY ACTS, FURTHER ASSURANCES. The parties shall at their own cost and
expense execute and deliver such further documents and instruments and
shall take such other actions as may be reasonably required or appropriate
to evidence or carry out the intent and purposes of this Agreement.
3.1 EXECUTION. This Agreement may be executed in counterparts and by fax.
3.2 CONSENT TO JURISDICTION AND FORUM SELECTION. The parties hereto agree that
all actions or proceedings arising in connection with this Agreement shall
be tried and litigated exclusively in the State and Federal courts located
in the County of Los Angeles, State of California. The aforementioned
choice of venue is intended by the parties to be mandatory and not
permissive in nature, thereby precluding the possibility of litigation
between the parties with respect to or arising out of this Agreement in any
jurisdiction other than that specified in this paragraph. Each party hereby
waives any right it may have to assert the doctrine of forum non conveniens
or similar doctrine or to object to venue with respect to any proceeding
brought in accordance with this paragraph, and stipulates that the State
and Federal courts located in the County of Los Angeles, State of
California shall have in personam jurisdiction and venue over each of them
for the purpose of litigating any dispute, controversy, or proceeding
arising out of or related to this Agreement. Each party hereby authorizes
and accepts service of process sufficient for personal jurisdiction in any
action against it as contemplated by this paragraph by registered or
certified mail, return receipt requested, postage prepaid, to its address
for the giving of notices as set forth in this Agreement. Any final
judgment rendered against a party in any action or proceeding shall be
conclusive as to the subject of such final judgment and may be enforced in
other jurisdictions in any manner provided by law.
3.2 JURY TRIAL WAIVERS. To the fullest extent permitted by law, and as
separately bargained-for-consideration, each party hereby waives any right
to trial by jury in any action, suit, proceeding, or counterclaim of any
kind arising out of or relating to this Agreement.
3.4 SPECIFIC PERFORMANCE. The parties acknowledge that it will be impossible to
measure in money the damage to them caused by any failure to comply with
the covenants set forth in Section 1, that each such covenant is material,
and that in the event of any such failure, the injured party will not have
an adequate remedy at law or in damages. Therefore, the parties consent to
the issuance of an injunction or the enforcement of other equitable
remedies against them at the suit of the other, without bond or other
security, to compel performance of all of the terms of Section 1, and waive
the defense of the availability of relief in damages.
3.5 REPRESENTATION ON AUTHORITY OF PARTIES/SIGNATORIES. Each person signing
this Agreement represents and warrants that he or she is duly authorized
and has legal capacity to execute and deliver this Agreement. Each party
represents and warrants to the other that the execution and delivery of the
Agreement and the performance of such party's obligations hereunder have
been duly authorized and that the Agreement is a valid and legal agreement
binding on such party and enforceable in accordance with its terms.
3.6 FORCE MAJEURE. No party shall be liable for any failure to perform its
obligations in connection with any action described in this Agreement, if
such failure results from any act of God, riot, war, civil unrest, flood,
earthquake, or other cause beyond such party's reasonable control
(including any mechanical, electronic, or communications failure, but
excluding failure caused by a party's financial condition or negligence).
3.7 ASSIGNMENT. Neither party shall voluntarily or by operation of law assign,
hypothecate, give, transfer, mortgage, sublet, license, or otherwise
transfer or encumber all or part of its rights, duties, or other interests
in this Agreement or the proceeds thereof (collectively, "Assignment'),
without the other party's prior written consent. Any attempt to make an
Assignment in violation of this provision shall be a material default under
this Agreement and any Assignment in violation of this provision shall be
null and void.
3.8 ARBITRATION. Any controversy, claim or dispute arising out of or relating
to this Agreement, shall be settled by binding arbitration in Los Angeles,
California. Such arbitration shall be conducted in accordance with the then
prevailing commercial arbitration rules of JAMS/Endispute ("JAMS"), with
the following exceptions if in conflict: (a) one arbitrator shall be chosen
by JAMS; (b) each party to the arbitration will pay its pro rata share of
the expenses and fees of the arbitrator, together with other expenses of
the arbitration incurred or approved by the arbitrator; and (c) arbitration
may proceed in the absence of any party if written notice (pursuant to the
JAMS' rules and regulations) of the proceedings has been given to such
party. The parties agree to abide by all decisions and awards rendered in
such proceedings. Such decisions and awards rendered by the arbitrator
shall be final and conclusive and may be entered in any court having
jurisdiction thereof as a basis of judgment and of the issuance of
execution for its collection. All such controversies, claims or disputes
shall be settled in this manner in lieu of any action at law or equity;
[provided however, that nothing in this subsection shall be construed as
precluding the bringing an action for injunctive relief or other equitable
relief]. The arbitrator shall not have the right to award punitive damages
or speculative damages to either party and shall not have the power to
amend this Agreement. The arbitrator shall be required to follow applicable
law.
Signed this 1st day of November, 2002.
TSPN: STASON PHARMECEUTICALS, INC.:
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Fan
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Xxxxxxx X. Xxxxx, President Xxxxx Fan, CEO
