Exhibit B
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 30, 2005 (this
"Agreement"), by and among HALTER CAPITAL CORPORATION, a Texas corporation
("Seller"), DELI DU, an individual ("Purchaser"), and MEDITECH PHARMACEUTICALS,
INC., a Nevada corporation ("Company").
W I T N E S S E T H
WHEREAS, Seller desires to sell to Purchaser 320,253 shares of the
Company's common stock, par value $0.001 (the "Common Stock") (the "Shares"),
representing approximately 14.8% of the Company's issued and outstanding shares
of the Common Stock of the Company prior to the transactions referred to in
Subsection 6.1(e) and (f) below, on the terms and conditions set forth in this
Stock Purchase Agreement ("Agreement"); and
WHEREAS, Purchaser desires to buy the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company joins in the execution of this Agreement for the
purpose of evidencing its consent to the consummation of the foregoing
transactions and for the purpose of making certain representations and
warranties to and covenants and agreements with Purchaser.
NOW, THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Shares. Subject to the terms and conditions herein set
forth, on the basis of the representations, warranties and agreements herein
contained, Seller agrees to sell, assign, transfer and deliver the Shares to
Purchaser, and Purchaser agrees to purchase the Shares from Seller.
1.2 The Closing. The closing (the "Closing") of the purchase of the
Shares and the other transactions referred to in Section 6.1 hereof shall take
place by means of facsimile signatures on counterpart copies exchanged between
counsel to the parties with original documents to follow via overnight delivery,
on or before March 31, 2005, with originally executed documents thereafter to be
delivered via overnight delivery. The date of the Closing is herein referred to
as the "Closing Date".
1.3 Instruments of Conveyance and Transfer. At the Closing Date, Seller
shall deliver certificates representing the Shares to Purchaser duly endorsed by
Seller to Purchaser, in form and substance satisfactory to Purchaser
("Certificates"), as shall be effective to vest in Purchaser all right, title
and interest in and to all of the Shares. See Article 6 below.
1.4 Consideration and Payment for the Shares. In consideration for the
Shares, Purchaser shall pay to Seller a total purchase price of Five Hundred
Thousand Dollars ($500,000) (the "Purchase Price"), payable by wire transfer to
an account of Seller, the
coordinates of which shall be supplied to Purchaser not later than three
business days prior to the Closing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents, warrants and undertakes to Purchaser that, except as
set forth in the Disclosure Schedule:
2.1 Transfer of Title. Seller shall transfer all right, title and
interest in and to the Shares to Purchaser free and clear of all liens, security
interests, pledges, encumbrances, charges, restrictions, demands and claims, of
any kind or nature whatsoever, whether direct or indirect or contingent.
2.2 Execution and Delivery
(a) Due Execution. This Agreement has been duly executed and
delivered by Seller.
(b) Valid Agreement. This Agreement constitutes, and upon
execution and delivery thereof by Seller, will constitute, a valid and
binding agreement of Seller enforceable against Seller in accordance
with its terms.
(c) Authorization. The execution, delivery and performance by
Seller of this Agreement and the delivery by Seller of the Shares have
been duly and validly authorized by the Company, and no further consent
or authorization of Seller, the Company, its Board of Directors, or its
stockholders is required.
(d) Seller's Title to Shares; No Liens or Preemptive Rights; Valid
Issuance. Seller has and at the Closing will have good and valid title
and control of the Shares; there will be no existing impediment or
encumbrance to the sale and transfer of such Shares to Purchaser; and
on delivery to Purchaser of the Shares, good and valid title to all the
Shares will pass to Purchaser and all of the Shares will be free and
clear of all taxes, liens, security interests, pledges, rights of first
refusal or other preference rights, encumbrances, charges,
restrictions, demands, claims or assessments of any kind or any nature
whatsoever, whether direct, indirect or contingent and shall not be
subject to preemptive rights, tag-along rights, or similar rights of
any of the stockholders of the Company. The Shares have been legally
and validly issued in compliance with all applicable U.S. federal and
state securities laws, and are fully paid and non-assessable shares of
the Company's Common Stock, and the Shares have all been issued under
duly authorized resolutions of the Board of Directors of the Company.
At the Closing, Seller shall deliver to Purchaser Certificates
representing the Shares free and clear of all liens, security
interests, pledges, encumbrances, charges, restrictions, demands or
claims in any other party whatsoever with appropriate stock powers with
medallion guarantees.
2.3 No Governmental Action Required. The execution and delivery by
Seller of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby
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will not, require any action by or in respect of, or filing with, any
governmental body, agency or governmental official.
2.4 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by Seller and the Company of this Agreement does not and
will not, and the sale by Seller of the Shares and the consummation of the other
transactions contemplated by this Agreement does not and will not contravene or
constitute a default under or violation of (i) any provision of applicable law
or regulation, (ii) the articles of incorporation or by-laws of the Company or
(iii) any agreement, judgment, injunction, order, decree or other instrument
binding upon Seller or any of its or the Company's assets, or result in the
creation or imposition of any lien on any asset of Seller.
2.5 Not a Voting Trust: No Proxies. None of the Shares is or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to the Shares. Except as
provided in this Agreement, Seller is not a party to any agreement which offers
or grants to any person the right to purchase or acquire any of the Shares.
There is no applicable local, state or federal law, rule, regulation, or decree
which would, as a result of the sale contemplated by this Agreement, impair,
restrict or delay any voting rights with respect to the Shares.
2.6 Survival of Representations. The representations and warranties
herein by Seller will be true and correct in all material respects on and as of
the Closing Date with the same force and effect as though said representations
and warranties had been made on and as of the Closing Date and will survive the
Closing Date as provided in Section 7.1(c).
2.7 Adoption of Company's Representations. Seller adopts and remakes as
its own each and every representation, warranty and undertaking made by the
Company in Article 3 below as if it had made such representations, warranties
and undertakings to Purchaser directly.
2.8 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission payable by Purchaser or the
Company in connection with the transactions contemplated by this Agreement.
2.9 Incumbency. The incumbency on the Closing Date of the officers and
directors of the Company is as set forth in Section 6.2(xi) below.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COMPANY
The Company represents, warrants and undertakes to Purchaser that,
except as set forth on the Disclosure Schedule:
3.1 No Governmental Action Required. The execution and delivery by the
Company of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official.
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3.2 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Company of this Agreement and the performance by
the parties hereto of the transactions contemplated hereby does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, (ii) the Company's articles of incorporation or
bylaws, or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any its assets, or result in the creation
or imposition of any lien on any asset of the Company. To the best of its
knowledge, the Company is in compliance with and conforms to all statutes, laws,
ordinances, rules, regulations, orders, restrictions and all other legal
requirements of any domestic or foreign government or any instrumentality
thereof having jurisdiction over the conduct of its businesses or the ownership
of its properties.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Unless specifically stated otherwise, Purchaser represents and warrants
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date:
4.1 Agreement's Validity. This Agreement has been duly executed and
delivered by Purchaser and constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
4.2 Investment Intent. Purchaser is acquiring the Shares for his own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof.
4.3 Restricted Securities. Purchaser understands that the Shares have
not been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption therefrom.
4.4 Legend. It is agreed and understood by Purchaser that the
Certificates representing the Shares shall each conspicuously set forth on the
face or back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL
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SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
4.5 Disclosure of Information. Purchaser acknowledges that it has been
furnished with the following information regarding the Company: (i) corporate
minutes since June 1, 1994; (ii) copies of federal corporate income tax returns
on Forms 1120A and1120 covering tax years ended May 31, 2000 - 2004; (iii) Stock
Split Audit Report dated February 22, 2005, and (iv) copies of Articles of
Incorporation filed March 21, 1983 and amendments thereto. In addition,
Purchaser represents that it has had an opportunity to ask questions of and
receive answers from the Company regarding the Company and its business, assets,
results of operation, and financial condition.
ARTICLE 5
COVENANTS OF THE PARTIES
5.1 General. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any other Party may request, all
at the sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under Article 7 below). Seller
agrees that from and after the Closing, Purchaser will be entitled to review and
inspect all documents, books, records (including Tax records), properties,
agreements, field operations, environmental records and compliance, and
financial data of any sort relating to the Company, and to discuss the Company
with its employees, customers and vendors. If for any reason the Closing does
not occur, Purchaser agrees to maintain the confidentiality of and not use for
its benefit any information obtained about the Company in the course of such
review.
5.2 Notices and Consents. Seller will, and will cause the Company to,
give any notices to third parties, and Seller will use its best efforts, and
will cause the Company to use its best efforts, to obtain any third-party
Consents that Purchaser may request. Each of the Parties will (and Seller will
cause the Company to) give any notices to, make any filings with, and use its
best efforts to obtain any required authorizations, Consents, and approvals of
governmental bodies.
5.3 Transition. Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Company from maintaining the same
business relationships with the Company after the Closing as it maintained with
the Company prior to the Closing. Seller will refer all customer inquiries
relating to the business of the Company to Purchaser from and after the Closing.
5.4 Piggy-Back Registration Rights. For a period of two years, the
Company will permit Seller to include all of Seller's remaining shares of the
Company's common stock held by it on the Closing Date in any registration of
shares undertaken by the Company in a registration statement filed with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended, except as to any registration statement prepared and filed on SEC Form
S-4 or S-8 or comparable SEC form. The Company will pay all expenses in
connection with the
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preparation and filing of such registration statements other than underwriting
commissions and discounts.
ARTICLE 6 - THE CLOSING
6.1 Contemporaneous Closing. The Closing of the transactions hereby
shall occur simultaneously with the execution of this Agreement. The following
actions shall take place at or prior to the closing:
(a) The Company has transferred and assigned all intellectual
property rights owned by it and listed in the Disclosure Schedule to
its wholly-owned subsidiary East-West. All existing officers and
directors of East-West shall remain as such officers and directors.
(b) The Disclosure Schedule shall be completed by Seller and
delivered to Purchaser.
(c) Seller's affiliates shall resign as officers of the Company.
(d) Seller shall have obtained and delivered to Purchaser all
Consents necessary to transfer and assign the Stock to Purchaser.
(e) Purchaser and certain of his designees shall have contributed
to the Company 100% of the outstanding common stock of Deli Solar
Holdings, Ltd., a British Virgin Islands company, in exchange for
24,407,784 restricted shares of the Company, pursuant to the terms of
that certain Stock Contribution Agreement being executed between the
parties contemporaneously with the execution hereof.
(f) Purchaser, and a group of accredited investors selected by
Purchaser, shall have contributed the sum of at least $5,748,015 to the
Company in consideration for the issuance of total of 9,853,740 shares
of the Company's restricted common stock in a private placement
transaction exempt from registration under SEC Regulation D. Each
subscriber for shares shall execute a subscription agreement and be
provided with appropriate disclosure information about the Company. For
each 10 shares sold in the placement, the subscriber may also receive
warrant rights to purchase 8 shares of common stock for an exercise
price of $3.85/6 per share.
(g) The Board of Directors of the Company shall have resolved to
effect a dividend of the outstanding shares of common stock of
East-West Distributors to, and only to, those stockholders of record of
the Company on February 17, 2005. Distribution of such dividend will
occur as soon as possible after an Information Statement by East-West
shall be cleared by the Securities and Exchange Commission. All costs
in connection with such dividend and SEC filings shall be borne by
East-West.
6.2 Deliveries. The Closing shall occur as a single integrated
transaction, as follows.
(a) Delivery by Seller. Seller shall, as condition precedent to
Purchaser's obligations hereunder, deliver to Purchaser:
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(i) Certificate evidencing the Shares duly endorsed or with
executed stock powers to effect transfer Purchaser;
(ii) copies of resolutions by the Board of Directors of the
Company, certified by its Secretary, approving the terms of this
Agreement, the execution of the Agreement by the Company, the
action to be taken by the Company hereunder, including the action
set forth in Subsection 6.1(g) above; and
(iii) copies of all books, records and documents relating to
the Company, including the corporate records and stock records of
the Company, and all other material relating to the Company then
in its possession or control;
(iv) any other such instruments, documents and certificates
as are required to be delivered by Seller or its representatives
pursuant to the provisions of this Agreement;
(v) the Consents;
(vi) the Disclosure Schedule;
(vii) releases signed by Xxxxxx Xxxx, Xxxxxx Xxxx and Xxxxxxx
Xxxx dated not earlier than February 15, 2005 whereby each
releases the Company from any and all indebtedness and other
liabilities, substantially in the form of release set forth in
Section 8.15 below;
(viii) a copy, certified by the Company's Secretary, of the
executed assignment and assumption agreement between the Company
and its subsidiary East West Distributors, accompanied by a
statement and description (which Seller shall include as part to
the Disclosure Statement referenced in Subsection 6.1(a) above) of
the liabilities so assumed in sufficient detail for the Purchaser
reasonably to assess the extent of secondary liabilities, if any,
by the Company thereunder; and the reasonable satisfaction by
Purchaser that the quantum of risk to the Company with respect to
such liabilities is not material.
(ix) the resignations of Xxx Xxxxxx and Xxxxx Xxxxxxxx as
members of the Company's Board of Directors; and the undated
resignation of Xxxxx Xxxxxx, Xx. as a member of the Company's
Board of Directors to be executed by him prior to Closing to be
held in escrow by counsel for the Company and to be released 10
days after the filing of the SEC Schedule 14F.
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(x) a certificate of the Secretary of the Company setting
forth the incumbency of the officers and directors of the Company
at the time next preceding the Closing to be as follows:
Directors: Xxx Xxxxxx, Xxxxx Xxxxxx, Xx. and Xxxxx Xxxxxxxx
Officers: President and CEO - Xxxxx Xxxxxx, Xx.; Secretary -
Xxx Xxxxxx.
(b) Delivery by Purchaser. Purchaser shall deliver to Seller the
Purchase Price in U.S. currency by wire transfer to a bank account
designated in writing by Seller at least three (3) business days prior
to the Closing Date.
(c) Post-Closing Actions.
(i) Immediately upon the Closing Date, the Board of Directors
of the Company shall resolve to appoint Xxxx X. Xxxxx as a
director of the Company with immediate effect.
(ii) All existing directors will resign ten (10) days
following the filing by the Company of a Form 14F with the SEC.
(iii) Within ten (10) days following Closing, Seller and
Purchaser and each newly appointed executive officer and director
of the Company and each 10% beneficial shareholder of the Company
shall file a Form 3 with the SEC pursuant to Section 16 of the
Securities Exchange Act of 1934 (the "34 Act").
(iv) Within four (4) business days following Closing, the
Purchaser shall cause the Company to file a Form 8-K with the SEC,
disclosing the change of control, issuance of shares, change of
management, change of accountants, information about the
newly-acquired business and as otherwise required by the
provisions of the Form pursuant to Rule 15(c)2-11 promulgated
under the '34 Act. Audited financial statements of the acquired
business will be filed by amendment as soon as practicable
thereafter, and in no event more than seventy-one (71) days after
the initial Form 8-K filing.
(v) Within ten (10) days after Closing, Seller and each
holder of common stock of five percent (5%) of the Company's
outstanding common stock will file a Schedule 13D or 13G, as
appropriate, containing all information required thereby.
(vi) Seller shall prepare at its expense a completed SEC Form
10QSB by the Company covering the quarter annual period ended
February 28, 2005.
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(vii) Seller shall cooperate in all respects to facilitate
the Company's distribution to its shareholders of record on
February 17, 2005 of its equity interest in East West Distributors
referred to in Section 4.1 (d) of the Stock Contribution
Agreement, and shall hold the Company harmless from all expenses
outstanding that may be associated with the preparation and filing
of an SEC Form 10 or comparable filing required under the `34 Act
in connection with such distribution, including expense resulting
form the preparation and filing of any amendments to such filings.
ARTICLE 7
INDEMNIFICATION
7.1 Purchaser Claims.
(a) Seller shall indemnify and hold harmless Purchaser, its
successors and assigns, against, and in respect of:
(i) Any and all damages, losses, liabilities, costs, and
expenses incurred or suffered by Purchaser that result from,
relate to, or arise out of:
(A) Any failure by Seller to carry out any covenant or
agreement contained in this Agreement;
(B) Any material misrepresentation or breach of
warranty by Seller contained in this Agreement, the Disclosure
Schedule, or any certificate, furnished to Purchaser by Seller
pursuant hereto; or
(C) Any claim by any Person for any brokerage or
finder's fee or commission in respect of the transactions
contemplated hereby as a result of Seller's dealings, agreement,
or arrangement with such Person.
(ii) Any and all actions, suits, claims, proceedings,
investigations, demands, assessments, audits, fines, judgments,
costs, and other expenses (including, without limitation,
reasonable legal fees and expenses) incident to any of the
foregoing including all such expenses reasonably incurred in
mitigating any damages resulting to Purchaser from any matter set
forth in subsection (i) above.
(b) The amount of any liability of Seller under this Section 7.1
shall be computed net of any tax benefit to Purchaser from the matter
giving rise to the claim for indemnification hereunder and net of any
insurance proceeds received by Purchaser with respect to the matter out
of which such liability arose.
(c) The representations and warranties of Seller contained in this
Agreement, the Disclosure Schedule, or any certificate delivered by or
on behalf of Seller pursuant to this Agreement or in connection with
the transactions contemplated herein shall survive the consummation of
the transactions contemplated herein and shall continue in full force
and effect for a period until the expiration of any applicable statutes
of limitation
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provided by law ("Survival Period"). Anything to the contrary
notwithstanding, the Survival period shall be extended automatically
to include any time period necessary to resolve a written claim for
indemnification which was made in reasonable detail before expiration
of the Survival Period but not resolved prior to its expiration, and
any such extension shall apply only as to the claims so asserted and
not so resolved within the Survival Period. Liability for any such
item shall continue until such claim shall have been finally settled,
decided, or adjudicated.
(d) Purchaser shall provide written notice to Seller of any claim
for indemnification under this Article as soon as practicable;
provided, however, that failure to provide such notice on a timely
basis shall not bar Purchaser's ability to assert any such claim except
to the extent that Seller is actually prejudiced thereby, provided that
such notice is received by Seller during the applicable Survival
Period. Purchaser shall make commercially reasonable efforts to
mitigate any damages, expenses, etc. resulting from any matter giving
rise to liability of Seller under this Article.
7.2 Defense of Third-Party Claims. With respect to any claim by
Purchaser under Section 7.1, relating to a third-party claim or demand,
Purchaser shall provide Seller with prompt written notice thereof and Seller may
defend, in good faith and at its expense, by legal counsel chosen by it and
reasonably acceptable to Purchaser any such claim or demand, and Purchaser, at
its expense, shall have the right to participate in the defense of any such
third-party claim. So long as Seller is defending in good faith any such
third-party claim, Purchaser shall not settle or compromise such third-party
claim. In any event Purchaser shall cooperate in the settlement or compromise
of, or defense against, any such asserted claim.
7.3 Seller Claims. Purchaser shall indemnify and hold harmless Seller
against, and in respect of, any and all damages, claims, losses, liabilities,
and expenses, including without limitation, legal, accounting and other
expenses, which may arise out of: (a) any material breach or violation by
Purchaser of any covenant set forth herein or any failure to fulfill any
obligation set forth herein, including, but not limited to, the obligation to
satisfy the Assumed Liabilities; (b) any material breach of any of the
representations or warranties made in this Agreement by Purchaser; or (c) any
claim by any Person for any brokerage or finder's fee or commission in respect
of the transactions contemplated hereby as a result of Purchaser's dealings,
agreement, or arrangement with such Person.
7.4 Limitations. No party shall bear any liability to the other unless
all claims brought under this Article shall equal or exceed $50,000, and then
only to the extent of such claims in excess of $50,000.
ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understanding related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has
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been made by any party hereto which is not embodied in this Agreement or the
written statement, certificates, or other documents delivered pursuant hereto or
in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set forth.
8.2 Notices. Any notice or communications hereunder must be in writing
and given by depositing same in the United States mail addressed to the party to
be notified, postage prepaid and registered or certified mail with return
receipt requested or by delivering same in person. Such notices shall be deemed
to have been received on the date on which it is hand delivered or on the third
business day following the date on which it is to be mailed. For purpose of
giving notice, the addresses of the parties shall be:
If to Seller: Halter Capital Corporation
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Purchaser or to the Company:
Deli Solar (USA), Inc.
x/x Xxxxx X .Xxx, Xxx.
Stairs Xxxxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
8.3 Governing Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Nevada (without regard to principles of conflicts of law).
8.4 Consent to Jurisdiction. Each party irrevocably submits to the
jurisdiction of the appropriate state or federal courts in the State of Nevada
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby or thereby.
8.5 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.6 Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the
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part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any such right, power or privilege, or any single or partial exercise of any
such right, power of privilege, preclude any further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity. The rights and remedies of any
party based upon, arising out of or otherwise in respect of any inaccuracy in or
breach of any representation, warranty, covenant or agreement contained in this
Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject of any other representation,
warranty, covenant or agreement contained in this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or breach.
8.7 Binding Effect; No Assignment, No Third-Party Rights. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto or by
operation of law. This Agreement is for the sole benefit of the parties hereto
and their permitted assigns, and nothing herein, expressed or implied, shall
give or be construed to give to any person, including any union or any employee
or former employee of Seller, any legal or equitable rights, benefits or
remedies of any nature whatsoever, including any rights of employment for any
specified period, under or by reason of this Agreement.
8.8 Further Assurances. Each party shall, at the request of the other
party, at any time and from time to time following the Closing Date promptly
execute and deliver, or cause to be executed and delivered, to such requesting
party all such further instruments and take all such further action as may be
reasonably necessary or appropriate to carry out the provisions and intents of
this Agreement and of the instruments delivered pursuant to this Agreement.
8.9 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to person or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable, in no event shall this
Agreement be rendered void or unenforceable.
8.10 Exhibits and Schedules. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any schedule referred
to herein shall be deemed also to have been disclosed on any other applicable
schedule referred to herein.
8.11 Captions. All section titles or captions contained in this
Agreement or in any schedule or exhibit annexed hereto or referred to herein,
and the table of contents to this Agreement, are for convenience only, shall not
be deemed a part of this Agreement and shall not
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affect the meaning or interpretation of this Agreement. All references herein to
sections shall be deemed references to such parts of this Agreement, unless the
context shall otherwise require.
8.12 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Closing Date occurs, each party hereto shall pay
its own expenses incidental to the preparation of this Agreement, the carrying
out of the provisions hereof and the consummation of the transactions
contemplated.
8.13 Public Announcements. The parties agree to consult with each other
before issuing any press release or making any public statement or completing
any public filing with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law or any
listing agreement with any national securities exchange or quotation system,
will not issue any such press release or make any such public statement prior to
consultation.
8.14 Non-confidentiality. Notwithstanding Section 8.13, the Company,
Seller and Purchaser, and each employee, representative or other agent of the
same (collectively the "Covered Parties"), may disclose to their respective tax
accountants, legal advisors and taxing governmental authorities, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
are provided to a Covered Party relating to such tax treatment and tax
structure.
8.15 Release. Seller, for itself and its affiliates, successors, and
assigns (collectively the "Releasing Parties") hereby release, acquit, and
forever discharge any and all claims and demands of whatever kind or character,
whether vicarious, derivative, or direct, whether contingent or liquidated, or
whether known or unknown, that it or they, individually, collectively, or
otherwise, have or may have or assert or may assert against the Company;
Purchaser, any subsidiary, affiliated, or related company, or other related
entity; or any officer, director, fiduciary, agent, employee, representative,
insurer, attorney, accountant, financial advisor, consultant, partner, or
shareholder of the Company or Purchaser; or any successors and assigns of the
Company, Purchaser or the other entities, companies, partnerships, persons or
parties just named (collectively the "Released Parties") based upon any theory
of federal, state or local statutory or common law, the breach of any provision
of any contract (express or implied), or with respect to any facts or
circumstances that exist with respect to the relationship among the Company or
the Releasing Parties, whether known or unknown, through the date of execution
of this Agreement.
***Signature Page Follows***
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written herein above.
HALTER CAPITAL CORPORATION
By:
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Xxxxx Xxxxxx, President
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DELI DU
MEDITECH PHARMACEUTICALS, INC.
By:
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Xxxxx Xxxxxx, Xx. Xxxxxxxxx
00
XXXXXXXXXX XXXXXXXXX
(SEE SUBSECTIONS 6.1(A) AND 6.2(A) OF AGREEMENT)
