EXHIBIT 6.13
RIGHT OF FIRST REFUSAL AGREEMENT
THIS AGREEMENT made this 29th day of October, 1999, between Total
China, Inc. (the "Corporation"), a Delaware corporation with offices 0000
Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 and each party hereto
purchasing shares of common stock of the Corporation (each of the last named
person shall hereinafter sometimes be referred to individually as a
"Shareholder" and collectively as the "Shareholders").
WHEREAS, the Corporation wishes to grant the Shareholders a right of
first refusal to purchase all or substantially all of assets of the
Corporation (the "Assets"), in the event that the Corporation wishes to sell
the Assets in accordance with the terms and conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. Right of First Refusal.
(a) In the event that the Corporation ("Transferor") shall
receive from a non-affiliated person ("Third Party Transferee") a written
bona fide offer to purchase the Assets owned by the Transferor (the "Offer"),
which Offer the Transferor desires to accept, the Transferor shall give the
Shareholders written notice of such desire (the "Notice"). The Notice shall
include the purchase price and the terms of the Offer, together with a copy
of the Offer.
(b) Each Shareholder shall have, for a period of 30 days
following the delivery of the Notice, an option to purchase all of the Assets
on the same terms and conditions as set forth in the Offer, on the Pro Rata
Basis (as defined herein), and if the Shareholders shall elect to exercise
such option, such Shareholders shall within such 30-day period give their
written election notice of exercise to the Transferor and to the other
Shareholders. Pro Rata Basis shall mean the ratio of the number of shares of
common stock of the Corporation owned by a Shareholder to the total number of
shares of common stock of the Corporation purchased by the Shareholders.
(c) In the event that a Shareholder fails to exercise such
option with respect to all the Assets, each exercising Shareholder shall have
an option to elect to purchase all of the share of the Assets that otherwise
could have been purchased by a non-electing Shareholder on the same terms and
conditions as set forth in the Offer, on the Pro Rata Basis, which option
must be exercised by his written election notice to the other Shareholders
within 10 days after the expiration of the 30-day option period set for in
Section 1(b).
(d) The closing of any purchase and sale of the Assets
shall take place at the principal office of the Corporation on a mutually
agreed date after 10 business days, but not more than 15 business days, from
the date on which the options granted to the Shareholders to purchase the
Assets in Sections 1(b) and (c) expire.
(e) In the event that the Shareholders shall fail to
exercise the option to purchase all of the Assets owned by the Transferor,
the Transferor may thereafter transfer all of
the Assets owned by it to the Third-Party Transferee on the terms and at the
price described in the Offer within 120 days thereafter. If the Transferor
does not consummate the transfer to the Third-Party Transferee within such
120 day period, the Assets of the Transferor shall again became subject to
all of the terms and conditions of this Agreement.
2. Notices. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and
shall be considered as duly given on (a) the date of delivery, if delivered
in person, by nationally recognized overnight delivery service or by
facsimile or (b) three days after mailing if mailed from within the
continental United States by registered or certified mail, return receipt
requested to the party entitled to receive the same, if to the Corporation,
Total China, Inc., 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000
with a copy to Law Offices of Xxxxxxx X. Field, 000 Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. Field, Esq., facsimile
number (000) 000-0000, and if to a Shareholder, at the address shown on the
books and records of the Corporation. Any party may change his address by
giving notice to the other party stating his new address. Commencing on the
10th day after the giving of such notice, such newly designated address shall
be such parts address for the purpose of all notices or other communications
required or permitted to be given pursuant to this Agreement.
3. Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of
the State of California determined without regard to conflicts of law
principles. All parties hereto (i) agree that any legal suit, action or
proceeding arising out of or relating to this Agreement shall be instituted
only in a federal or state court in Los Angeles, California, (ii) waive any
objection which they may now or hereafter have to the laying of the venue of
any such suit, action or proceeding, and (iii) irrevocably submit to the
exclusive jurisdiction of such federal or state court in Los Angeles,
California in any such suit, action or proceeding, but such consent shall not
constitute a general appearance or be available to any other person who is
not a party to this Agreement. All parties hereto agree that the mailing of
any process in any suit, action or proceeding in accordance with the notice
provisions of this Agreement shall constitute personal service thereof.
4. Entire Agreement; Waiver of Breach. This Agreement constitutes
the entire agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof, and it
may not be modified or amended in any manner other than as provided herein;
and no waiver of any breach or condition of this Agreement shall be deemed to
have occurred unless such waiver is in writing, signed by the party against
whom enforcement is sought, and no waiver shall be claimed to be a waiver of
any subsequent breach or condition of a like or different nature.
5. Binding Effect; Assignability. This Agreement and all the terms
and provisions hereof shall be binding upon and shall inure to the benefit of
the parties and their respective heirs, successors and permitted assigns.
This Agreement and the rights of the parties hereunder shall not be assigned
except with the written consent of all parties hereto.
6. Captions. Captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof.
7. Number and Gender. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter.
8. Severability. If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render invalid
or unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable
provision were not contained herein.
9. Amendments. This Agreement may not be amended except in a
writing signed by all of the parties hereto.
10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. In addition, this Agreement may
contain more than one counterpart of the signature page and this Agreement
may be executed by the affixing of such signature pages executed by the
parties to one copy of the Agreement; all of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
Total China, Inc.
By: /s/ Xxxxxx Xxxxx, President
INVESTORS:
------------------------------ ------------------------------------
Signature Print Name
Schedule of Investors
NAME
Xxxxx Xxxxxx
Xxxxxxx Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxx
Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxxx du Boef
Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxx City Anesthesia Medical Group Money Purchase and
Profit Sharing Pension Trust
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx, A Professional Corp. Profit Sharing
Plan
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxx, A Professional Corp. Profit Sharing
Plan
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Einav Xxxxx Xxxxx
Xxxxxxx X. Mille
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxx Schwuartzman
Xxxxxx X. Xxxxx
Xxxxxx and Xxxxxxxxx Xxxxxxxx
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxxxx & Associates, Inc.
Xxxxxxxx Family Partners
Swan Alley (Nominees) Limited
Xxxxxxx X. Xxxxxx
Xxxxx X. Zacky
Xxxxxxxx Xxxx
