STOCK PURCHASE AGREEMENT
THIS
AGREEMENT (this
“Agreement”), entered
into as of the 22nd
day of
August, 2007, is made by and between Xxxx Xxxxxxxxx and Xxxxx Xxxxx
(together,
are referred to herein as the“Shareholders”),
Best Care, Inc. (“Best Care”), and
Xxxxxx Investments, Ltd. (the
“Buyer”).
Whereas,
the
Shareholders desire to sell to the Buyer and the Buyer wishes to purchase
and
acquire from the Shareholders all of the Shareholders’ shares of BEST CARE’s
shares of capital stock, representing 70.6% of the capital stock of BEST
CARE,
pursuant to the terms and conditions of this Agreement.
Now,
Therefore,
in
consideration of the representations, warranties and agreements set forth
herein, the parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
1.1 Definitions.
In this
Agreement the following terms will have the following meanings:
| (a) |
“Agreement”
means this Stock Purchase Agreement;
|
| (b) |
“Closing”
means the completion, on the date hereof, of the transactions contemplated
hereby in accordance with Article 7 hereof;
|
| (c) |
“Place
of Closing”
means such place as the Buyer and BEST CARE may mutually agree
upon;
|
| (d) |
“BEST
CARE Accounts Payable and Liabilities”
means all accounts payable and liabilities of BEST CARE, on a consolidated
basis, due and owing or otherwise constituting a binding obligation
of
BEST CARE (other than an BEST CARE Material Contract) as of August
15,
2007, as set forth is Schedule “A”
hereto;
|
| (e) |
“BEST
CARE Accounts Receivable”
means all accounts receivable and other debts owing to BEST CARE,
on a
consolidated basis, as of August 15, 2007, as set forth in Schedule
“B”
hereto;
|
| (f) |
“BEST
CARE Assets”
means the undertaking and all the property and assets of the BEST
CARE
Business of every kind and description wheresoever situated including,
without limitation, BEST CARE Equipment, BEST CARE Inventory, BEST
CARE
Material Contracts, BEST CARE Accounts Receivable, BEST CARE Cash,
BEST
CARE Intangible Assets and BEST CARE Goodwill, and all credit cards,
charge cards and banking cards issued to BEST
CARE;
|
| (g) |
“BEST
CARE Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of
BEST CARE or relating to the BEST CARE Business as set forth in Schedule
“C” hereto;
|
| (h) |
“BEST
CARE Business”
means all aspects of any business conducted by BEST
CARE;
|
| (i) |
“BEST
CARE Cash”
means all cash on hand or on deposit to the credit of BEST CARE on
the
date hereof;
|
1
| (j) |
“BEST
CARE Common Shares”
means the shares of common stock in the capital of BEST
CARE;
|
| (k) |
“BEST
CARE Debt to Related Parties”
means the debts owed by BEST CARE to any affiliate, director
or officer of
BEST CARE as described in Schedule “D”
hereto;
|
| (l) |
“BEST
CARE Equipment”
means all machinery, equipment, furniture, and furnishings used in
the
BEST CARE Business, including, without limitation, the items more
particularly described in Schedule “E”
hereto;
|
| (m) |
“BEST
CARE Financial Statements”
means, collectively, the audited consolidated financial statements
of BEST
CARE for the fiscal year ended December 31, 2006, and the unaudited
consolidated financial statements of BEST CARE for the six month
period
ended June 30, 2007, true copies of which are attached as Schedule
“F”
hereto;
|
| (n) |
“BEST
CARE Goodwill”
means the goodwill of the BEST CARE Business including the right
to all
corporate, operating and trade names associated with the BEST CARE
Business, or any variations of such names as part of or in connection
with
the BEST CARE Business, all books and records and other information
relating to the BEST CARE Business, all necessary licenses and
authorizations and any other rights used in connection with the BEST
CARE
Business;
|
| (o) |
“BEST
CARE Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to the BEST CARE Assets and the BEST CARE Business as described in
Schedule “G” hereto;
|
| (p) |
“BEST
CARE Intangible Assets”
means all of the intangible assets of BEST CARE, including, without
limitation, BEST CARE Goodwill, all trademarks, logos, copyrights,
designs, and other intellectual and industrial property of BEST
CARE;
|
| (q) |
“BEST
CARE Inventory”
means all inventory and supplies of the BEST CARE Business as of
August
15, 2007, as set forth in Schedule “H”
hereto;
|
| (r) |
“BEST
CARE Material Contracts”
means the burden and benefit of and the right, title and interest
of BEST
CARE in, to and under all trade and non-trade contracts, engagements
or
commitments, whether written or oral, to which BEST CARE is entitled,
whereunder BEST CARE is obligated to pay or entitled to receive the
sum of
$250 or more including, without limitation, any pension plans, profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month's notice, and those
contracts
listed in Schedule “I” hereto; and
|
| (s) |
“Shares”
shall mean the BEST CARE Common Shares to be sold to Buyer by BEST
CARE
hereunder.
|
Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
2
1.2 Captions
and Section Numbers.
The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement
or any
provision thereof.
1.3 Section
References and Schedules.
Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule by letter will mean the
appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this Agreement.
1.4 Severability
of Clauses.
If any
part of this Agreement is declared or held to be invalid for any reason,
such
invalidity will not affect the validity of the remainder which will continue
in
full force and effect and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the intention of the
parties that this Agreement would have been executed without reference to
any
portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
PURCHASE
AND SALE
2.1 Issuance
of the Shares.
Subject
to all of the terms and conditions of this Agreement, the Shareholders do
hereby
sell, assign, transfer and convey to the Buyer, and the Buyer does hereby
purchase and accept from the Shareholders, all of the Shares as set forth
on
Exhibit
A,
free
and clear of all encumbrances, liens, charges and claims, which Shares represent
70.6% of the capital stock of BEST CARE.
2.2 Purchase
Price; Payment.The
purchase price for the Shares is $332,033.33 (collectively the “Purchase
Price”)
and
shall be paid by wire transfer of immediately available funds or bank or
certified check in accordance with Exhibit
A.
The
parties approve the distribution of the Purchase Price as set forth on
Exhibit
A.
ARTICLE
3
SHAREHOLDERS’
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties.
The
Shareholders and BEST CARE jointly and severally make the representations
and
warranties set forth below and intend and acknowledge that the Buyer will
rely
thereon in entering into this Agreement and in approving and completing the
transactions contemplated hereby. Any schedules described in or contemplated
by
such representations and warranties shall be prepared both as of the date
of
this Agreement and as of the date of the Closing.
The
Shareholders
| (a) |
Power
and Capacity.
Each Shareholder has the power, authority and capacity to enter into
this
Agreement and to consummate the transactions contemplated hereby.
This
Agreement constitutes each Shareholder’s valid, legal and binding
obligation and is enforceable against such Shareholder in accordance
with
its terms, subject, however, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors’
rights;
|
3
BEST
CARE - Corporate Status and Capacity
| (b) |
Incorporation.
BEST CARE is a corporation duly incorporated and validly subsisting
under
the laws of the State of Nevada, and is in good standing with the
office
of the Secretary of State for the State of
Nevada;
|
| (c) |
Carrying
on Business.
BEST CARE conducts the business as described in the SEC Documents.
BEST
CARE is not required to register or otherwise be qualified to carry
on
business in any foreign jurisdiction;
|
| (d) |
Corporate
Capacity.
BEST CARE has the corporate power, capacity and authority to own
the BEST
CARE Assets;
|
| (e) |
Reporting
Status; Listing.
BEST CARE is required to file current reports with the Securities
and
Exchange Commission pursuant to section 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and BEST CARE’s Common Shares
are quoted on the National Association of Securities Dealers, Inc.’s
Over-the-Counter Bulletin Board System (the “OTC Bulletin Board”). BEST
CARE has filed all reports required to be filed by it under the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the
five
years preceding the date hereof (or such shorter period as the BEST
CARE
was required by law to file such material) (the foregoing materials
being
collectively referred to herein as the “SEC Documents”) and is current
with respect to its Exchange Act filing requirements. As of their
respective dates, the SEC Documents complied in all material respects
with
the requirements of the Securities Act of 1933, as amended (the
“Securities Act”) and the Exchange Act and the rules and regulations of
the Commission promulgated thereunder, and none of the SEC Documents,
when
filed, contained any untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary
in order
to make the statement therein, in light of the circumstances under
which
they were made, not misleading. All material agreements to which
BEST CARE is a party or to which the property or assets of BEST CARE
are
subject have been appropriately filed as exhibits to the SEC Documents
as
and to the extent required under the Exchange Act. The financial
statements of BEST CARE included in the SEC Documents comply in all
material respects with applicable accounting requirements and the
rules
and regulations of the Commission with respect thereto as in effect
at the
time of filing, were prepared in accordance with GAAP applied on
a
consistent basis during the periods involved (except as may be indicated
in the notes thereto, or, in the case of unaudited statements, as
permitted by Form 10-QSB of the Commission), and fairly present in
all
material respects (subject in the case of unaudited statements, to
normal,
recurring audit adjustments) the financial position of BEST CARE
as at the
dates thereof and the results of its operations and cash flows for
the
periods then ended. BEST CARE is not aware of any facts which would
make BEST CARE’s Common Stock ineligible for quotation on the OTC Bulletin
Board;
|
BEST
CARE - Capitalization
| (f) |
Authorized
Capital.
The authorized capital of BEST CARE consists of: (i) 100,000,000
BEST CARE
Common Shares, $0.001 par value, of which 4,250,000 BEST CARE Common
Shares are presently issued and outstanding; and (ii) 5,000,000 shares
of
BEST CARE Preferred Stock, $0.001 par value, none of which are presently,
nor have ever been issued and
outstanding.
|
| (g) |
No
Option.
No person, firm or corporation has any agreement, warrant or option
or any
right capable of becoming an agreement or option for the acquisition
of
BEST CARE Common Shares or for the purchase, subscription or issuance
of
any other securities of BEST CARE;
|
4
BEST
CARE - Records and Financial Statements
| (h) |
Charter
Documents.
The charter documents of BEST CARE have not been altered since its
incorporation, except as filed in the record books of BEST
CARE;
|
| (i) |
Corporate
Minute Books.
The corporate minute books of BEST CARE is complete and each of the
minutes contained therein accurately reflect the actions that were
taken
at a duly called and held meeting or by consent without a meeting.
All
actions by BEST CARE which required director or shareholder approval
are
reflected on the corporate minute books of BEST CARE. BEST CARE is
not in
violation or breach of, or in default with respect to, any term of
their
respective Certificates of Incorporation (or other charter documents)
or
by-laws.
|
| (j) |
BEST
CARE Financial Statements.
The BEST CARE Financial Statements present fairly, in all material
respects, the assets and liabilities (whether accrued, absolute,
contingent or otherwise) of BEST CARE, on a consolidated basis, as
of the
respective dates thereof, and the sales and earnings of the BEST
CARE
Business during the periods covered thereby, in all material respects
and
have been prepared in substantial accordance with generally accepted
accounting principles consistently
applied;
|
| (k) |
BEST
CARE Accounts Payable and Liabilities.
There are no liabilities, contingent or otherwise, of BEST CARE which
are
not disclosed in Schedule “A” hereto or reflected in the BEST CARE
Financial Statements and BEST CARE has not guaranteed or agreed to
guarantee any debt, liability or other obligation of any person,
firm or
corporation. Without limiting the generality of the foregoing, all
accounts payable and liabilities of BEST CARE as of August 15, 2007
are
described in Schedule “A” hereto;
|
| (l) |
BEST
CARE Accounts Receivable.
All the BEST CARE Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of BEST CARE, any claim by the obligor for set-off or
counterclaim;
|
| (m) |
BEST
CARE Bank Accounts.
All of the BEST CARE Bank Accounts, their location, numbers and the
authorized signatories thereto are as set forth in Schedule “C”
hereto;
|
| (n) |
No
Debt to Related Parties.
Except as disclosed in Schedule “D” hereto, BEST CARE is, and on Closing
will not be, indebted to any affiliate, director or officer of BEST
CARE;
|
| (o) |
No
Related Party Debt to BEST CARE.
No director or officer or affiliate of BEST CARE is now indebted
to or
under any financial obligation to BEST CARE on any account
whatsoever;
|
| (p) |
No
Dividends.
No dividends or other distributions on any shares in the capital
of BEST
CARE have been made, declared or authorized since the date of BEST
CARE
Financial Statements;
|
| (q) |
No
Payments.
No payments of any kind have been made or authorized since the date
of the
BEST CARE Financial Statements to or on behalf of officers, directors,
shareholders or employees of BEST CARE or under any management agreements
with BEST CARE, except payments made in the ordinary course of business
and at the regular rates of salary or other remuneration payable
to
them;
|
5
| (r) |
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting BEST
CARE;
|
| (s) |
No
Adverse Events.
Since the date of the BEST CARE Financial
Statements
|
| (i) |
there
has not been any adverse change in the financial position or condition
of
BEST CARE, its liabilities or the BEST CARE Assets or any damage,
loss or
other change in circumstances affecting BEST CARE, the BEST CARE
Business
or the BEST CARE Assets or BEST CARE’s right to carry on the BEST CARE
Business, other than changes in the ordinary course of
business,
|
| (ii) |
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) adversely affecting BEST CARE, the BEST CARE
Business or the BEST CARE Assets,
|
| (iii) |
there
has not been any increase in the compensation payable or to become
payable
by BEST CARE to any of BEST CARE’s officers, employees or agents or any
bonus, payment or arrangement made to or with any of
them,
|
| (iv) |
the
BEST CARE Business has been and continues to be carried on in the
ordinary
course,
|
| (v) |
BEST
CARE has not waived or surrendered any right of material
value,
|
| (vi) |
BEST
CARE has not discharged or satisfied or paid any lien or encumbrance
or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
| (vii) |
no
capital expenditures in excess of $250 individually or $500 in total
have
been authorized or made.
|
BEST
CARE - Income Tax Matters
| (t) |
Tax
Returns.
All tax returns and reports of BEST CARE required by law to be filed
have
been filed and are true, complete and correct, and any taxes payable
in
accordance with any return filed by BEST CARE or in accordance with
any
notice of assessment or reassessment issued by any taxing authority
have
been so paid;
|
| (u) |
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by BEST CARE.
There
are no contingent tax liabilities or any grounds which would prompt
a
reassessment including aggressive treatment of income and expenses
in
filing earlier tax returns;
|
6
BEST
CARE - Applicable Laws and Legal Matters
| (v) |
Licenses.
BEST CARE holds all licenses and permits as may be requisite for
carrying
on the BEST CARE Business in the manner in which it has heretofore
been
carried on, which licenses and permits have been maintained and continue
to be in good standing except where the failure to obtain or maintain
such
licenses or permits would not have an adverse effect on the BEST
CARE
Business;
|
| (w) |
Applicable
Laws.
BEST CARE has not been charged with or received notice of breach
of any
laws, ordinances, statutes, regulations, by-laws, orders or decrees
to
which they are subject or which apply to them the violation of which
would
have an adverse effect on the BEST CARE Business (greater than $250),
and
to BEST CARE’s knowledge, BEST CARE is not in breach of any laws,
ordinances, statutes, regulations, bylaws, orders or decrees the
contravention of which would result in an adverse impact on the BEST
CARE
Business;
|
| (x) |
Pending
or Threatened Litigation.
There is no litigation or administrative or governmental proceeding
pending or threatened against or relating to BEST CARE, the BEST
CARE
Business, or any of the BEST CARE Assets nor does BEST CARE have
any
knowledge after due investigation of any deliberate act or omission
of
BEST CARE that would form any basis for any such action or
proceeding;
|
| (y) |
No
Bankruptcy.
BEST CARE has not made any voluntary assignment or proposal under
applicable laws relating to insolvency and bankruptcy and no bankruptcy
petition has been filed or presented against BEST CARE and no order
has
been made or a resolution passed for the winding-up, dissolution
or
liquidation of BEST CARE;
|
| (z) |
Labor
Matters.
BEST CARE is not party to any collective agreement relating to the
BEST
CARE Business with any labor union or other association of employees
and
no part of the BEST CARE Business has been certified as a unit appropriate
for collective bargaining or, to the best knowledge of BEST CARE,
has made
any attempt in that regard;
|
| (aa) |
Finder's
Fees.
BEST CARE is not party to any agreement which provides for the payment
of
finder's fees, brokerage fees, commissions or other fees or amounts
which
are or may become payable to any third party in connection with the
execution and delivery of this Agreement and the transactions contemplated
herein;
|
Execution
and Performance of Agreement
| (bb) |
Authorization
and Enforceability.
The completion of the transactions contemplated hereby, have been
duly and
validly authorized by all necessary corporate action on the part
of BEST
CARE;
|
| (cc) |
No
Violation or Breach.
The execution and performance of this Agreement will
not:
|
| (i) |
violate
the charter documents of BEST CARE or result in any breach of, or
default
under, any loan agreement, mortgage, deed of trust, or any other
agreement
to which BEST CARE is a party,
|
7
| (ii) |
give
any person any right to terminate or cancel any agreement including,
without limitation, the BEST CARE Material Contracts, or any right
or
rights enjoyed by BEST CARE,
|
| (iii) |
result
in any alteration of BEST CARE’s obligations under any agreement to which
BEST CARE is a party including, without limitation, the BEST CARE
Material
Contracts,
|
| (iv) |
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
BEST
CARE Assets,
|
| (v) |
result
in the imposition of any tax liability to BEST CARE relating to the
BEST
CARE Assets, or
|
| (vi) |
violate
any court order or decree to which BEST CARE is
subject;
|
BEST
CARE Assets - Ownership and Condition
| (dd) |
Business
Assets.
The BEST CARE Assets comprise all of the property and assets of the
BEST
CARE Business, and no other person, firm or corporation owns any
assets
used by BEST CARE in operating the BEST CARE Business, whether under
a
lease, rental agreement or other arrangement, other than as disclosed
in
Schedules “E” or “H” hereto;
|
| (ee) |
Title.
BEST CARE is the legal and beneficial owner of the BEST CARE Assets,
free
and clear of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever, save and except as disclosed
in
Schedules “E” or “H” hereto;
|
| (ff) |
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the BEST
CARE
Assets;
|
| (gg) |
BEST
CARE Insurance Policies.
BEST CARE does not maintain the public liability insurance and insurance
against loss or damage to the BEST CARE Assets and the BEST CARE
Business;
|
| (hh) |
BEST
CARE Material Contracts.
The BEST CARE Material Contracts listed in Schedule “I” constitute all of
the material contracts of BEST CARE;
|
| (ii) |
No
Default.
There has not been any default in any obligation of BEST CARE or
any other
party to be performed under any of the BEST CARE Material Contracts,
each
of which is in good standing and in full force and effect and unamended
(except as disclosed in Schedule “I” hereto), and BEST CARE is not aware
of any default in the obligations of any other party to any of the
BEST
CARE Material Contracts;
|
| (jj) |
No
Compensation on Termination.
There are no agreements, commitments or understandings relating to
severance pay or separation allowances on termination of employment
of any
employee of BEST CARE. BEST CARE is not obliged to pay benefits or
share
profits with any employee after termination of employment except
as
required by law;
|
8
BEST
CARE Assets - BEST CARE Equipment
| (kk) |
BEST
CARE Equipment.
The BEST CARE Equipment has been maintained in a manner consistent
with
that of a reasonably prudent owner and such equipment is in good
working
condition;
|
BEST
CARE Assets - BEST CARE Goodwill and Other Assets
| (ll) |
BEST
CARE Goodwill.
BEST CARE does not carry on the BEST CARE Business under any other
business or trade names. BEST CARE does not have any knowledge of
any
infringement by BEST CARE of any patent, trademarks, copyright or
trade
secret;
|
BEST
CARE Business
| (mm) |
Maintenance
of Business.
Since the date of the BEST CARE Financial Statements, BEST CARE has
not
entered into any agreement or commitment except as disclosed
herein;
|
| (nn) |
Subsidiaries.
BEST CARE does not own any subsidiaries and does not otherwise own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm; and
|
BEST
CARE - Shares
| (oo) |
Shares.
The Shares when delivered to the Buyer shall be validly issued and
outstanding as fully paid and non-assessable shares and the Shares
shall
be transferable upon the books of BEST CARE, in all cases subject
to the
provisions and restrictions of all applicable securities
laws.
|
3.2 Survival.
The
representations and warranties herein will be true at and as of the date
hereof
in all material respects. Notwithstanding the completion of the transactions
contemplated hereby, the waiver of any condition contained herein (unless
such
waiver expressly releases a party from any such representation or warranty)
or
any investigation made by the Buyer, the representations and warranties made
herein shall survive the Closing and be effective for a period of twelve
months
(12) months from the date hereof.
3.3 Indemnity.
The
Shareholders agree to jointly and severally indemnify and save harmless the
Buyer from and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (subject to the right
of
the Shareholders to defend any such claim), resulting from the breach by
them of
any representation or warranty made under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by BEST CARE to the Buyer hereunder.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
4.1 Representations
and Warranties.
The
Buyer makes the representations and warranties set forth below and intend
and
acknowledge that BEST CARE and the Shareholders will rely thereon in entering
into this Agreement and in approving and completing the transactions
contemplated hereby. Any schedules described in or contemplated by such
representations and warranties shall be prepared both as of the date of this
Agreement and as of the date of the Closing.
9
| (a) |
Power
and Capacity.
The Buyer has the power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby.
This
Agreement constitutes the Buyer’s valid, legal and binding obligation and
is enforceable against it in accordance with its terms, subject,
however,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to
or
affecting creditors’ rights and to general principles of equity,
regardless of whether such enforceability is considered in equity
or at
law;
|
| (b) |
No
Conflict.
Neither the execution and delivery of this Agreement by the Buyer,
nor
compliance with any of the provisions hereof, nor the consummation
of the
transactions contemplated hereby, will: (a)
result in a default, or give rise to any right of termination,
cancellation or acceleration, under any term, condition or provision
of
any contract or other instrument or obligation to which the
Buyer
is a party or by which its assets may be bound; or (b) violate any
order,
writ, injunction or decree applicable to the
Buyer,
or any of its properties or assets.
|
| (c) |
Legal
Proceedings, Etc. There
is no legal, equitable, administrative or arbitration action, suit,
proceeding or known investigation pending or threatened against or
affecting the Buyer. There is no judgment, decree, injunction, rule
or
order of any court, governmental department, commission, agency,
instrumentality or arbitrator outstanding against the Buyer and there
is
no basis for any action, suit, proceeding or investigation against
the
Buyer.
|
4.2 Survival.
The
representations and warranties of the Buyer contained herein will be true
at and
as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by the Shareholders, the representations
and
warranties of the Buyer made herein shall survive the Closing and be effective
for a period of twelve (12) months from the date hereof.
4.3 Indemnity.
The
Buyer agrees to indemnify and save harmless BEST CARE and the Shareholders
from
and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (subject to the right
of
the Buyer to defend any such claim), resulting from the breach by any of
them of
any representation or warranty of such party made under this Agreement or
from
any misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by the Buyer to the Shareholders
hereunder.
4.4 Escrow.
$25,000
of the Purchase Price has been placed in escrow (the “Escrow Proceeds”) with JPF
Securities Law, LLC. Upon Closing of the transactions contemplated hereby,
the
Parties hereby authorize the release of the Escrow Proceeds as follows: $7,500
to JPF Securities Law, LLC, and $17,500 to Xxxx Xxxxxxxxx.
10
ARTICLE
5
FURTHER
COVENANTS
5.1 Legend. The
Buyer
agrees to the imprinting of the following legend on any certificates
representing the Shares:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES ARE “RESTRICTED SECURITIES” WITHIN THE MEANING
OF RULE 144(3) OF THE SECURITIES ACT AND MAY NOT BE RESOLD PUBLICLY UNDER
RULE
144 UNTIL CERTAIN HOLDING PERIOD REQUIREMENTS ARE MET.”
5.2 Expenses
of the Parties.
Except
as otherwise expressly provided in this Agreement, all expenses incurred
by any
party to this Agreement in the preparation, negotiation, authorization and
consummation of this Agreement and the transactions contemplated hereby,
including all fees and expenses of agents, representatives, counsel and
accountants, shall be borne solely by the party incurring such expense(s),
with
the caveat that any expenses incurred by BEST CARE shall be paid prior to
the
Closing of the transactions contemplated hereby.
5.3 Further
Assurances.
Each
party shall cooperate with the other, take such further action and execute
and
deliver such further documents as may be reasonably requested by any other
party
in order to carry out the terms and purposes of this Agreement.
ARTICLE
6
CONDITIONS
PRECEDENT
6.1 Conditions
Precedent in favor of BEST CARE and the Shareholders.
The
obligations of BEST CARE and the Shareholders to carry out the transactions
contemplated hereby are subject to the fulfillment of each of the following
conditions precedent on or before the Closing:
| (a) |
all
documents or copies of documents required to be executed and delivered
to
BEST CARE hereunder will have been so executed and
delivered;
|
| (b) |
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by the Buyer at or prior to the Closing will have
been
complied with or performed; and
|
| (c) |
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any.
|
6.2 Waiver
by BEST CARE and the Shareholders.
The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of BEST CARE and the Shareholders and any such condition
may
be waived in whole or in part by BEST CARE or the Shareholders at or prior
to
Closing by delivering to the Buyer a written waiver to that effect signed
by
BEST CARE or the Shareholders, as the case may be. In the event that the
conditions precedent set out in the preceding section are not satisfied on
or
before the Closing, the Shareholders shall be released from all obligations
under this Agreement.
11
6.3 Conditions
Precedent in Favor of the Buyer.
The
obligation of the Buyer to carry out the transactions contemplated hereby
is
subject to the fulfillment of each of the following conditions precedent
on or
before the Closing:
| (a) |
all
documents or copies of documents required to be executed and delivered
to
the BEST CARE or the Shareholders hereunder will have been so executed
and
delivered;
|
| (b) |
BEST
CARE, its officers and directors and each Shareholder shall be current
in
their respective filing obligations with the Securities and Exchange
Commission (it being understood that Schedule 13Ds and Forms 3 and
4 may
be required to be filed by such parties, as
applicable);
|
| (c) |
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by the Shareholders or BEST CARE at or prior to
the
Closing will have been complied with or
performed;
|
| (d) |
BEST
CARE will have delivered the Shares, duly and validly issued, to
the Buyer
at the Closing;
|
| (e) |
title
to the Shares will be free and clear of all mortgages, liens, charges,
pledges, security interests, encumbrances or other claims
whatsoever;
|
| (h) |
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
| (i) |
the
completion of the transfer of all assets and liabilities of BEST
CARE on
or prior to the Closing will have been completed to the satisfaction
of
the Buyer, which transfer shall reflected in the schedules provided
to the
Buyer as of the date of the Closing; and
|
| (j) |
The
Buyer shall have received from BEST CARE’s counsel a legal opinion in form
and substance satisfactory to BEST CARE.
|
6.4 Waiver
by the Buyer.
The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of the Buyer and any such condition may be waived in whole
or
in part by the Buyer at or prior to the Closing by delivering to BEST CARE
and
Shareholders a written waiver to that effect signed by the Buyer. In the
event
that the conditions precedent set out in the preceding section are not satisfied
on or before the Closing the Buyer shall be released from all obligations
under
this Agreement.
6.5 Confidentiality
Notwithstanding any provision herein to the contrary, the parties hereto
agree
that the existence and terms of this Agreement are confidential and that
if this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from the other party and the contents
thereof
confidential and not utilize nor reveal or release same, provided, however,
that
BEST CARE will be required to file a Current Report on Form 8-K with the
Securities and Exchange Commission respecting the proposed transaction
contemplated hereby together with such other documents as are required to
maintain BEST CARE’s status as being current in all of its filings with the
Securities and Exchange Commission, subject to the review and approval of
the
Buyer of any and all copy and/or documents drafted by BEST CARE.
12
ARTICLE
7
CLOSING
7.1 Closing.
The sale
of the Shares and the other transactions contemplated by this Agreement will
be
closed at the Place of Closing in accordance with the closing procedure set
out
in this Article.
7.2 Closing
Deliveries of the Buyer. On
or
before the Closing, the Buyer will deliver or cause to be delivered to the
Shareholders:
| (a) |
this
Agreement, duly executed by the Buyer;
|
| (b) |
the
Purchase Price
|
| (c) |
all
reasonable consents or approvals required to be obtained by the Buyer
for
the purposes of completing the transaction contemplated herein and
preserving and maintaining the interests of the Buyer;
and
|
| (d) |
such
other documents as BEST CARE may reasonably require to give effect
to the
terms and intention of this Agreement.
|
7.3 Closing
Deliveries of BEST CARE and
Shareholders.
On or
before the Closing, BEST CARE and the Shareholders shall deliver or cause
to be
delivered to the Buyer:
| (a) |
this
Agreement, duly executed by the
Shareholders;
|
| (b) |
share
certificates representing the Shares;
|
| (c) |
resignations
of all of the officers of BEST CARE as of the date
hereof;
|
| (d) |
updated
schedules of BEST CARE and the Shareholders, dated as of the date
of the
Closing;
|
| (e) |
a
certified copy of a resolution of the directors of BEST CARE dated
as of
the date hereof appointing the nominees of the Buyer as officers
of the
Buyer;
|
| (f) |
a
certified copy of a resolution of the directors of BEST CARE dated
as of
the date hereof appointing Xxxx Xxxxx to the board of directors of
BEST
CARE effective as of ten days after the delivery to the shareholders
of
the BEST CARE of an Information Statement pursuant to Rule
14f;
|
| (g) |
resignation
Xxxx Xxxxxxxxx as a director of BEST CARE, effective as of ten days
after
the delivery to the shareholders of the BEST CARE of an Information
Statement pursuant to Rule 14f;
|
| (h) |
resignations
of all directors other than Xxxx Xxxxxxxxx, as directors of BEST
CARE
dated as of the date hereof;
|
| (i) |
resignations
of all officers other than Xxxx Xxxxxxxxx, as officers of BEST CARE
dated
as of the date hereof
|
| (j) |
all
reasonable consents or approvals required to be obtained by the Buyer
for
the purposes of completing the transaction contemplated herein and
preserving and maintaining the interests of the Buyer;
|
| (k) |
the
legal opinion of BEST CARE’s counsel referred to in Section 6.3(j);
|
13
| (l) |
Certificate
of Good Standing from the State of Nevada, evidencing that BEST CARE
is in
good standing with the State of Nevada as of a date within five business
days of the closing; and
|
| (m) |
such
other documents as the Buyer may reasonably require to give effect
to the
terms and intention of this Agreement.
|
ARTICLE
8
POST-CLOSING
MATTERS
Forthwith
after the Closing, the Buyer and the Shareholders agree to use all their
best
efforts to:
| (a) |
file
with the Securities and Exchange Commission a report on Form 14f1
disclosing the change in control of BEST CARE and, 10 days after
such
filing, date the resolutions appointing to the board of directors
of BEST
CARE Xxxx Xxxxx, and forthwith date and accept the resignation of
Xxxx
Xxxxxxxxx as a director of BEST CARE;
|
| (b) |
file
a Form 8-K with the Securities and Exchange Commission disclosing
the
terms of this Agreement;
|
| (c) |
file
reports on Forms 13D and 3 with the Securities and Exchange Commission
disclosing the acquisition of the Shares by the Buyer;
and
|
| (d) |
take
such steps are required to change the name of BEST CARE to as Buyer
may
determine.
|
ARTICLE
9
GENERAL
PROVISIONS
9.1 Arbitration.
The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good
faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within fifteen (15) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party
to
such dispute, controversy, difference or claim may submit such matter to
arbitration in Nassau County, New York.
9.2 Notice.
Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
telecopier. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except
in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by telecopier shall be deemed to have been received
on
the actual date of delivery.
9.3 Addresses
for Service.
The
address for service of notice of each of the parties hereto is as
follows:
| (a) |
the
Shareholders:
|
Xxxx
Xxxxxxxxx
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Xxxxx
Xxxxx
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
14
| (b) |
the
Buyer:
|
Xxxxxx
Investments Limited
P.O.
Box
957, Offshore Incorporation Centre
Road
Town, Tortola, British Virgin Islands
9.4 Change
of Address.
Any
party may, by notice to the other parties change its address for notice to
some
other address in North America and will so change its address for notice
whenever the existing address or notice ceases to be adequate for delivery
by
hand. A post office box may not be used as an address for service.
9.5 Amendment.
This
Agreement may be amended only by a writing executed by each of the parties
hereto.
9.6 Entire
Agreement.
The
provisions contained herein constitute the entire agreement among the Buyer
and
the Shareholders respecting the subject matter hereof and supersede all previous
communications, representations and agreements, whether verbal or written,
among
the Buyer and the Shareholders with respect to the subject matter
hereof.
9.7 Enurement.
This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
9.9 Assignment.
This
Agreement is not assignable without the prior written consent of the parties
hereto.
9.10
Counterparts.
This
Agreement may be executed in counterparts, each of which when executed by
any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
9.11
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York applicable to agreements made and to be performed entirely
within such State. The parties agree to be subject to the exclusive jurisdiction
and venue of the state and federal courts located in Nassau County, New
York.
[Remainder
of page intentionally left blank.]
15
IN
WITNESS WHEREOF
the
parties have executed this Agreement effective as of the day and year first
above written.
Shareholders:
/s/
Xxxx
Xxxxxxxxx
Name:
Xxxx Xxxxxxxxx
/s/
Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Buyer:
Xxxxxx
Investments Limited
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title: President
16
Exhibit
A
|
Name
of Shareholder
|
Number
of Shares
|
Percent
of Outstanding
|
||
|
Xxxx
Xxxxxxxxx
|
2,200,000
|
|||
|
Xxxxx
Xxxxx
|
800,000
|
PURCHASE
PRICE
|
Name
|
Dollar
Amount
|
|
|
Xxxx
Xxxxxxxxx
|
$285,766.66
|
|
|
Xxxxx
Xxxxx
|
$8,766.67
|
|
|
JPF
Securities Law, LLC
|
$7,500
|
|
|
Xxxx
Xxxxxxx
|
$30,000
|
17
