STOCK PURCHASE AGREEMENT
Exhibit
10.1
THIS
STOCK PURCHASE (this “Agreement”) is made as of May [__], 2006 by and between
Medlink International, Inc., a Delaware corporation (the “Purchaser”), on the
one hand, and Anywhere MD, Inc., a Nevada corporation (the “Company”), and
Xxxxxx X. Xxxxxx, the majority shareholder of the Company (the
“Majority Shareholder”),
on the other hand. Collectively, the Company and the Majority Shareholder shall
hereinafter be referred to as the “Sellers.”
RECITALS
WHEREAS,
subject
to the terms and conditions of this Agreement and the other documents or
instruments contemplated hereby:
1.
The
Company desires to sell to the Purchaser and the Purchaser desires to purchase
from the Company 10,000,000 shares (the “Purchased Shares”) of the Company’s
common stock, par value $0.001 (the “Common Stock”), at a price of $0.01 per
share for an aggregate purchase price of One Hundred Thousand dollars
($100,000); and
2.
As
part of the consideration for the Purchaser to enter into this Agreement, the
Majority Shareholder desires to sell to the Purchaser 130,000,000 shares (the
“Shareholder Shares”) of Common Stock owned by the Majority Shareholder at an
aggregate purchase price of Eight Hundred Seventy-Five Thousand dollars
($875,000) or $0.0067307 per share.
NOW,
THEREFORE, the parties hereby agree as follows:
AGREEMENT
Section
1. Purchase
and Sale.
1.1 Shares
to be Purchased and Sold.
Subject
to the terms and conditions of this Agreement, the Seller hereby agrees to
sell,
transfer, convey, assign and deliver to the Purchaser the Purchased Shares
and
Shareholder Shares (collectively “Transaction Shares”) free and clear of any
lien, charge, encumbrance, security interest, right of first refusal or other
restrictions or limitations of any kind (“Lien”). At the Closing (as defined in
Section 3.1), the Seller shall deliver or cause to be delivered to the Purchaser
stock certificates representing the Transaction Shares.
1.2 Purchase
Price.
Subject
to the terms and conditions of this Agreement, in exchange for the Purchased
Shares, the Purchaser hereby agrees to pay and deliver to the Seller at Closing,
in immediately available funds by check, wire transfer or such other form of
payment as shall be mutually agreed upon by the Company and Purchaser, an
aggregate of One Hundred Thousand Dollars ($100,000) (the "Purchase Price").
In
addition, at the Closing and in exchange for the Shareholder Shares, the
Purchaser shall: (i) pay and deliver to the Majority Shareholder at Closing,
in
immediately available funds by check, wire transfer or such other form of
payment as shall be mutually agreed upon by the Majority Shareholder and
Purchaser, an aggregate of Forty Three Thousand Seven Hundred Fifty Dollars
($43,750), and (ii) issue a note (the “Note”)(in the Form attached hereto as
Exhibit A) to the Majority Shareholder for an aggregate amount of Eight-Hundred
Thirty One Thousand Two Hundred Fifty Dollars ($831,250) (“Note
Amount”).
1.3 Audit.
As soon
as practicable after the Closing, the Company agrees to pay for an audit of
the
Company’s financial condition (the “Audit”) and to provide the Purchaser with an
audited balance sheet, profit and loss statement, statement of stockholders’
equity, and statement of cash flows resulting from such Audit for the Company’s
fiscal years end December 31, 2006 and 2005 (“Audited Financial Statements”). As
an express condition to the Purchaser’s payment of the Purchase Price, the
Company hereby agrees to set aside $25,000 of the Purchase Price (the “Audit
Amount”) for payment to a PCAOB certified accounting firm for services to
conduct the Audit.
Section
2. The
Closing.
2.1 Time
and Place.
The
closing of the purchase and sale of the Transaction Shares (the "Closing")
shall
take place simultaneously with the execution and delivery of this Agreement
at
the principal office of the Company. The
Closing shall occur on or about May ___, 2007 (the "Closing Date"). The Closing
will be subject to and conditional upon the receipt and review of and
satisfaction with any due diligence materials and disclosure documentation
requested by the Purchaser.
2.2 Closing
Obligations: Company and Purchaser.
At the
Closing, the Company shall instruct its transfer agent to issue and deliver
to
Purchaser a stock certificate representing the Purchased Shares in the name
of
the Purchaser, against receipt by the Company of a certified bank check or
wire
transfer in an aggregate amount equal to the Purchase Price.
2.3 Closing
Obligations: Majority Shareholder.
At the
Closing, the Majority Shareholder shall instruct the Company’s transfer agent to
transfer and deliver to Purchaser in the name of the Purchaser a stock
certificate representing the Shareholder Shares, against receipt by the Majority
Shareholder of the executed Note in an aggregate amount equal to the Note
Amount. The Company will be responsible for, and will pay, any applicable sales
taxes and transfer taxes arising in connection with the transactions
contemplated by this Agreement
23.4 Opinion. The
Seller will cause its counsel to issue an opinion substantially in the form
as
attached hereto as Exhibit B hereto on the Transaction Shares.
Section
3. Representations
and Warranties of the Sellers.
The
Sellers, jointly and severally, hereby represent and warrant to the Purchaser
as
follows:
3.1 Organization
and Qualification.
The
Company is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
or
organization (as applicable), with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business as
currently conducted. The Company is duly qualified to conduct business and
is in
good standing as a foreign corporation or other entity in each jurisdiction
in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in
good
standing, as the case may be, would not, individually or in the aggregate,
have
or reasonably be expected to result in (i) an adverse effect on the legality,
validity or enforceability of this Agreement or any other document or instrument
contemplated hereby or thereby (collectively, the “Transaction Documents”), (ii)
a material and adverse effect on the results of operations, assets, business
or
condition (financial or otherwise) of the Company , taken as a whole, or (iii)
a
material adverse impairment to the Company’s ability to perform on a timely
basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a “Material Adverse Effect”). The Company is not in violation or default of any
of the provisions of its respective certificate or articles of incorporation,
by-laws or other organizational or charter document. The Company has no direct
or indirect subsidiaries.
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3.2 Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary corporate action on the part of the Company and
no
further action is required by the Company in connection therewith. Each
Transaction Document has been (or upon delivery will have been) duly executed
by
the Company and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles.
3.3 No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated thereby
do
not and will not (i) conflict with or violate any provision of the Company’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company debt or otherwise)
to
which the Company is a party or by which any property or asset of the Company
is
bound or affected, or (iii) assuming the accuracy of Purchaser’s representations
and warranties and compliance by the Purchaser of their respective covenants
as
set forth in this Agreement, result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of
the
Company is bound or affected; except in the case of each of clauses (ii) and
(iii), such as would not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect.
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3.4 Filings,
Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other person
in
connection with the execution, delivery and performance by the Company of the
Transaction Documents.
3.5 Delivery
of Shares.
The
Sellers have, and at the time of delivery of the Purchased Shares and
Transaction Shares (collectively, the “Shares”) will convey to the Purchaser,
good, valid and marketable title to the Shares. The Shares have been duly
authorized, validly issued, and at the time of such delivery will be conveyed
to
the Purchaser fully-paid, non-assessable and free and clear of all Liens. The
Company has reserved from its duly authorized capital stock the maximum number
of Purchased Shares issuable pursuant to this Agreement.
3.6 Capitalization.
The
authorized capital stock of the Company consists of 250,000,000 shares of Common
Stock, of which 213,870,000 shares of Common Stock are presently issued and
outstanding. The Shares are not subject to any right of first refusal,
preemptive right, right of participation, or any similar right to participate
in
the transactions contemplated by the Transaction Documents. Except as a result
of the purchase and sale of the Shares, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into
or
exchangeable for, or giving any entity or person any right to subscribe for
or
acquire, any shares of Common Stock, or contracts, commitments, understandings
or arrangements by which the Company is or may become bound to issue additional
shares of Common Stock, or securities or rights convertible or exchangeable
into
shares of Common Stock. The issue and sale of the Shares will not, immediately
or with the passage of time, obligate the Company to issue shares of Common
Stock or other securities to any enitity or person (other than the Purchaser
and
their permitted successors and assigns) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or
reset price under such securities. All of the outstanding shares of capital
stock of the Company are validly issued, fully paid and nonassessable, have
been
issued in compliance with all federal and state securities laws, and none of
such outstanding shares was issued in violation of any preemptive rights or
similar rights to subscribe for or purchase securities. No further approval
or
authorization of any stockholder, the Board of Directors of the Company or
others is required for the issuance and sale of the Shares. There are no
stockholders agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company is a party or, to
the knowledge of the Company, between or among any of the Company’s
stockholders.
3.7 Material
Changes.
Since
the date of the Company’s latest balance sheet, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected
to
result in a Material Adverse Effect, (ii) the Company has not incurred any
material liabilities (contingent or otherwise) other than (A) trade payables
and
accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the U.S. Securities and Exchange Commission (the “Commission”), (iii)
the Company has not materially altered its method of accounting or the identity
of its auditors, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock, and (v) the Company has not issued any equity securities to any officer,
director or affiliate, except pursuant to existing Company equity compensation
plans. The Company does not have pending before the Commission any request
for
confidential treatment of information.
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3.8 Litigation.
There
is no action, suit, inquiry, notice of violation, proceeding (including any
partial proceeding such as a deposition) or investigation (each an “Action”)
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Shares or (ii) would,
if there were an unfavorable decision, individually or in the aggregate, have
or
reasonably be expected to result in a Material Adverse Effect. Neither the
Company, nor any director or officer thereof, is or has been the subject of
any
Action involving a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty. There has not been
and
there is not pending or contemplated, any investigation by the Commission
involving the Company or any current or former director or officer of the
Company. The Commission has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the Company under
the
Securities Exchange Act of 1934 (the “Exchange Act”) or the Securities Act of
1933, as amended (the “Securities Act”).
3.9 Labor
Relations.
No
material labor dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company.
3.10 Compliance.
The
Company is not (i) in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company under), nor has the Company received
notice of a claim that it is in default under or that it is in violation of,
any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether
or
not such default or violation has been waived), (ii) in violation of any order
of any court, arbitrator or governmental body, or (iii) in violation of any
statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as would not,
individually or in the aggregate, have or reasonably be expected to result
in a
Material Adverse Effect.
3.11 Regulatory
Permits.
The
Company possesses all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary
to
conduct their business, except where the failure to possess such permits would
not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect (“Material Permits”), and the Company has not
received any notice of proceedings relating to the revocation or modification
of
any Material Permit.
3.12 Title
to Assets.
The
Company has good and marketable title in fee simple to all real property owned
by it that is material to its business and good and marketable title in all
personal property owned by it that is material to its business, in each case
free and clear of all Liens, except for Liens as do not materially affect the
value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and Liens for the payment
of
federal, state or other taxes, the payment of which is not delinquent. Any
real
property and facilities held under lease by the Company are held under valid,
subsisting and enforceable leases of which the Company is in material
compliance.
5
3.13 Patents
and Trademarks.
To the
knowledge of the Company, the Company has rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, licenses and other similar rights that are necessary or material
for
use in connection with its business as currently conducted and which the failure
to so have would, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). The Company has not received a written notice that the
Intellectual Property Rights used by the Company violates or infringes upon
the
rights of any entity or person. To the knowledge of the Company, all such
Intellectual Property Rights are enforceable and there is no existing
infringement by another entity or person of any of the Intellectual Property
Rights.
3.14 Transactions
With Affiliates and Employees.
None of
the officers or directors of the Company and none of the employees of the
Company is presently a party to any transaction with the Company (other than
as
holders of stock options and/or warrants, and for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of
real
or personal property to or from, or otherwise requiring payments to or from
any
officer, director or such employee or any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner.
3.15 Internal
Control Over Financial Reporting.
The
Company maintains a system of internal control over financial reporting
sufficient to provide reasonable assurance that (i) transactions are executed
in
accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
3.16 Certain
Fees.
No
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other person with respect to the transactions
contemplated by this Agreement. The Purchaser shall have no obligation with
respect to any fees or with respect to any claims (other than such fees or
commissions owed by a Purchaser pursuant to written agreements executed by
such
Purchaser which fees or commissions shall be the sole responsibility of such
Purchaser) made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated
by this Agreement.
3.17 Certain
Registration Matters.
Assuming the accuracy of the Purchaser’s representations and warranties, no
registration under the Securities Act is required for the offer and sale of
the
Securities by the Company to the Purchaser under the Transaction Documents.
The
Company is eligible to register the resale of the Shares for resale by the
Purchaser under Form SB-2 promulgated under the Securities Act. The Company
has
not granted or agreed to grant to any entity or person any rights (including
“piggy-back” registration rights) to have any securities of the Company
registered with the Commission or any other governmental authority that have
not
been satisfied.
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3.18 Insurance.
The
Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the
business in which the Company is engaged. The Company has no reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as
may
be necessary to continue its business without a significant increase in
cost.
3.19 Listing
and Maintenance Requirements.
The
Company is, and has no reason to believe that it will not, upon the issuance
of
the Securities hereunder and in the foreseeable future, continue to be, in
compliance with the listing and maintenance requirements for continued listing
of the Common Stock on the Pink Sheets quotation service. The issuance of the
Shares hereunder does not contravene the rules and regulations of the Pink
Sheets service. The Company has not, in the 12 months preceding the date hereof,
received notice from any securities trading market on which the Common Stock
is
or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such securities trading
market.
3.20 Investment
Company.
The
Company is not, and is not an affiliate of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
3.21 Application
of Takeover Protections.
The
Company and its Board of Directors have taken all necessary action, if any,
in
order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s Certificate of
Incorporation (or similar charter documents) or the laws of its state of
incorporation that is or could become applicable to the Purchaser as a result
of
the Purchaser and the Company fulfilling their obligations or exercising their
rights under the Transaction Documents, including without limitation as a result
of the Company’s issuance of the Shares and the Purchaser’s ownership of the
Shares.
3.22 Disclosure.
The
Company confirms that, neither it nor any other entity or person acting on
its
behalf has provided the Purchaser or its agents or counsel with any information
that the Company believes constitutes or might constitute material, non-public
information, except insofar as the existence and terms of the proposed
transactions hereunder may constitute such information. The Company understands
and confirms that the Purchaser will rely on the foregoing representations
and
covenants in effecting transactions in securities of the Company. All disclosure
provided to the Purchaser regarding the Company, its business and the
transactions contemplated hereby, furnished by or on behalf of the Company
with
respect to the representations and warranties made herein are true and correct
with respect to such representations and warranties and do not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. The Company acknowledges and agrees
that the Purchaser does not make or has not made any representations or
warranties with respect to the transactions contemplated hereby other than
those
specifically set forth in Section 5 hereof.
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3.23No
Integrated Offering.
Assuming
the accuracy of the Purchaser’s representations and warranties set forth in
Section 5, neither the Company, nor any of its affiliates, nor any entity or
person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security,
under circumstances that would cause this offering of the Shares to be
integrated with prior offerings by the Company for purposes of the Securities
Act or any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of any securities trading market
on
which any of the securities of the Company are listed or designated.
3.24 Solvency.
Based
on the financial condition of the Company as of the Closing Date after giving
effect to the receipt by the Company of the proceeds from the sale of the Shares
hereunder, (i) the Company’s fair saleable value of its assets exceeds the
amount that will be required to be paid on or in respect of the Company’s
existing debts and other liabilities (including known contingent liabilities)
as
they mature; (ii) the Company’s assets do not constitute unreasonably small
capital to carry on its business for the current fiscal year as now conducted
and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company,
and projected capital requirements and capital availability thereof; and (iii)
the current cash flow of the Company, together with the proceeds the Company
would receive, were it to liquidate all of its assets, after taking into account
all anticipated uses of the cash, would be sufficient to pay all amounts on
or
in respect of its debt when such amounts are required to be paid. The Company
does not intend to incur debts, other than in the ordinary course of its
business, beyond its ability to pay such debts as they mature (taking into
account the timing and amounts of cash to be payable on or in respect of its
debt). The Company has no knowledge of any facts or circumstances which lead
it
to believe that it will file for reorganization or liquidation under the
bankruptcy or reorganization laws of any jurisdiction within one year from
the
Closing Date. The Company has disclosed to the Purchaser all outstanding secured
and unsecured Indebtedness of the Company, or for which the Company has
commitments (except where such Indebtedness would not have a Material Adverse
Effect). For the purposes of this Agreement, “Indebtedness” shall mean (a) any
liabilities for borrowed money or amounts owed in excess of $50,000 (other
than
trade accounts payable incurred in the ordinary course of business), (b) all
guaranties, endorsements and other contingent obligations in respect of
Indebtedness of others, whether or not the same are or should be reflected
in
the Company’s balance sheet (or the notes thereto), except guaranties by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (c) the present value
of
any lease payments
in excess of $50,000 due under leases required to be capitalized in accordance
with GAAP. The
Company is not in default with respect to any Indebtedness.
3.25 Tax
Status.
Except
for matters that would not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect, the Company has filed all
necessary federal, state and foreign income and franchise tax returns and has
paid or accrued all taxes shown as due thereon, and the Company has no knowledge
of a material tax deficiency which has been asserted or threatened against
the
Company.
3.26 No
General Solicitation.
Neither
the Company nor, to the knowledge of the Company, any person acting on behalf
of
the Company has offered or sold any of the Shares by any form of general
solicitation or general advertising. The Company has offered the Shares for
sale
only to the Purchaser.
8
3.27 Foreign
Corrupt Practices.
Neither
the Company, nor any agent or other person acting on behalf of the Company,
has
(i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf
of
which the Company is aware) which is in violation of law, or (iv) violated
in
any material respect any provision of the Foreign Corrupt Practices Act of
1977,
as amended.
3.28Acknowledgment
Regarding Purchase of Securities.
The
Company acknowledges and agrees that the Purchaser is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated hereby. The Company further acknowledges
that
the Purchaser is not acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with this Agreement and
the
transactions contemplated hereby is merely incidental to the Purchaser’s
purchase of the Shares. The Company further represents to the Purchaser that
the
Company’s decision to enter into this Agreement has been based solely on the
independent evaluation of the transactions contemplated hereby by the Company
and its representatives.
3.29 Manipulation
of Price.
The Company has not, and no one acting on its behalf has, (i) taken, directly
or
indirectly, any action designed to cause or to result in the stabilization
or
manipulation of the price of any security of the Company to facilitate the
sale
or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any
compensation for soliciting purchases of, any of the Shares, or (iii) paid
or
agreed to pay to any person any compensation for soliciting another to purchase
any other securities of the Company.
3.30
Binding
Effect.
This
Agreement and each other Transaction Document, when executed and delivered
will
be the legal, valid and binding obligation of the Sellers enforceable against
the Sellers in accordance with its terms.
Section
5. Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Sellers as follows:
4.1
Authorization.
The
Purchaser has all requisite power and authority (corporate or otherwise) to
execute, deliver and perform the Transaction Documents and the transactions
contemplated thereby, and the execution, delivery and performance by Purchaser
of the Transaction Documents have been duly authorized by all requisite action
by Purchaser and each such Transaction Document, when executed and delivered
by
Purchaser, constitutes a valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity (regardless
of
whether enforcement is sought in a proceeding at law or in equity).
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4.2 Investment
Representations.
4.2.1 The
Purchaser represents that it is acquiring the Shares for its own account for
investment only and not with a view towards distribution or resale, and agrees
not to sell, transfer, pledge, hypothecate or otherwise dispose of, or offer
to
dispose of, the Shares, unless the Shares have been registered under the
Securities Act of 1933, as amended (the "Act") and applicable state securities
laws or such registration is not required in the opinion of counsel for such
Purchaser reasonably acceptable to the Company. The Purchaser understands that
any routine sale of the Shares made in reliance upon Rule 144 promulgated under
the Act can be made only in accordance with the terms and conditions of said
Rule and further, that in case such Rule is not applicable to any sale of the
Shares, resale thereof may require compliance with some other exemption under
the Act prior to resale. The Purchaser understands that certificates for the
Shares issued pursuant to this Agreement shall bear a customary “restrictive”
legend, substantially in the form as follows:
"THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. 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
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
4.2.2 The
Purchaser represents that (i) it is acquiring the Shares after having made
adequate investigation of the business, finances and prospects of the Company,
(ii) it has been furnished any information and materials relating to the
business, finances and operation of the Company and any information and
materials relating to the offer and sale of the Shares which it has requested
and (iii) it has been given an opportunity to make any further inquiries desired
of the management and any other personnel of the Company and has received
satisfactory responses to such inquiries.
4.2.3 The
Purchaser represents that it possesses such knowledge and experience in
financial and business matters that it is capable of evaluating the merits
and
risks of an investment in the Shares and of making an informed investment
decision. In addition, the Purchaser represents that it is financially capable
of sustaining an entire loss of his investment in the Shares.
Section
5. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of the Company, Purchaser and
their respective successors and assigns.
10
Section
6. Entire
Agreement.
This
Agreement and the other writings and agreements referred to in this Agreement
or
delivered pursuant to this Agreement contain the entire understanding of the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings among the parties with respect
thereto.
Section
7. Notices.
All
notices, demands and requests of any kind to be delivered to any party in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given if (i) personally delivered, (ii) sent by telecopy, electronic
mail or facsimile transmission, (iii) sent by internationally-recognized
overnight courier, or (iv) sent by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
If
to the Sellers, to:
Anwyhere
MD, Inc.
0000
Xx
Xxxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxxxxx 00000
Telecopier:
[___________]
Attention:
Xxxxx Xxxxxx
With
a
copy to:
[INSERT
ANYWHERE’S LEGAL COUNSEL CONTACT INFO]
If
to the Purchaser, to:
00
Xxxx
Xxxxx, Xxxxx 000X
Xxxxxxxx,
XX 00000
Telecopier:
(000) 000-0000
Attention:
Xxx Xxxxx, CEO
With
a
copy to:
Xxxxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx, 00xx
xxxxx
Xxx
Xxxx,
XX 00000
Telecopier:
(000) 000-0000
Attention:
Xxxx X. Xxxxxxx, Esq.
or
to
such other address as the party to whom notice is to be given may have furnished
to the other parties to this Agreement in writing in accordance with the
provisions of this Section 8. Any such notice or communication shall be deemed
to have been received (i) in the case of personal delivery, telecopy, electronic
mail or facsimile transmission, on the date of such delivery, (ii) in the case
of internationally-recognized overnight courier, on the next business day after
the date when sent and (iii) in the case of mailing, on the third business
day
following that on which the piece of mail containing such communication is
posted.
11
Section
8. Piggyback
Registration Rights.
If
at any
time after the date of this Agreement the Company shall determine to prepare
and
file with the Securities and Exchange Commission a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other than on Form S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, then the Company
shall send to the Purchaser written notice of such determination and, if within
twenty (20) days after receipt of such notice, the Purchaser shall so request
in
writing, the Company shall include in such registration statement all or any
part of the Shares of Common Stock acquired hereunder which are then held by
the
Purchaser as the Purchaser requests to be registered; provided,
however,
that
the Company shall not be required to register any of the Shares of Common Stock
purchased by the Purchaser hereunder pursuant to this Section 9 that are
eligible for sale pursuant to Rule 144(k) of the Securities Act.
Section
9. Amendments.
This
Agreement may not be modified or amended, or any of the provisions of this
Agreement waived, except by written agreement of the Company and
Purchaser.
Section
10. Governing
Law; Waiver of Jury Trial.
All
questions concerning the construction, interpretation and validity of this
Agreement shall be governed by and construed and enforced in accordance with
the
domestic laws of Delaware without giving effect to any choice or conflict of
law
provision or rule (whether in the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
the
State of Delaware. In furtherance of the foregoing, the internal laws of the
State of Delaware will control the interpretation and construction of this
Agreement, even if under such jurisdiction's choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.
BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT
TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND
ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO.
12
Section
11. Submission
to Jurisdiction.
Any
legal
action or proceeding with respect to this Agreement may be brought in the courts
of the State of New York and the United States of America located in New York
City and, by execution and delivery of this Agreement, each party hereby accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each party hereby irrevocably waives,
in
connection with any such action or proceeding, any objection, including, without
limitation, any objection to the venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any such
action or proceeding in such respective jurisdictions. Each party hereby
irrevocably consents to the service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at its address as set
forth
herein.
Section
12. Severability.
It
is the
desire and intent of the parties that the provisions of this Agreement be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, in
the
event that any provision of this Agreement would be held in any jurisdiction
to
be invalid, prohibited or unenforceable for any reason, such provision, as
to
such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such
provision in any jurisdiction. Notwithstanding the foregoing, if such provision
could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section
13. Independence
of Agreements, Covenants, Representations and
Warranties.
All
agreements and covenants hereunder shall be given independent effect so that
if
a certain action or condition constitutes a default under a certain agreement
or
covenant, the fact that such action or condition is permitted by another
agreement or covenant shall not affect the occurrence of such default, unless
expressly permitted under an exception to such covenant. In addition, all
representations and warranties hereunder shall be given independent effect
so
that if a particular representation or warranty proves to be incorrect or is
breached, the fact that another representation or warranty concerning the same
or similar subject matter is correct or is not breached will not affect the
incorrectness of or a breach of a representation and warranty hereunder. The
exhibits and any schedules attached hereto are hereby made part of this
Agreement in all respects.
Section
14. Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart of this Agreement shall be deemed to be an original instrument,
but
all such counterparts together shall constitute but one agreement. Facsimile
counterpart signatures to this Agreement shall be acceptable and
binding.
13
Section
15. Headings.
The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
Section
16. Expenses.
Each
party shall pay its own fees and expenses incurred in connection with the
negotiation, execution and delivery of the Transaction Documents.
Section
17.Preparation
of Agreement.
Each
party to this Agreement acknowledges that: (i) the party had the advice of,
or
sufficient opportunity to obtain the advice of, legal counsel separate and
independent of legal counsel for any other party hereto; (ii) the terms of
the
transactions contemplated by this Agreement are fair and reasonable to such
party; and (iii) such party has voluntarily entered into the transactions
contemplated by this Agreement without duress or coercion. Each party further
acknowledges that such party was not represented by the legal counsel of any
other party hereto in connection with the transactions contemplated by this
Agreement, nor was he or it under any belief or understanding that such legal
counsel was representing his or its interests. Each party agrees that no
conflict, omission or ambiguity in this Agreement, or the interpretation
thereof, shall be presumed, implied or otherwise construed against any other
party to this Agreement on the basis that such party was responsible for
drafting this Agreement.
[SIGNATURE
PAGE FOLLOWS]
14
IN
WITNESS WHEREOF,
each of
the undersigned has duly executed this Stock Purchase and Option Agreement
as of
the date first written above.
Purchaser
By:
______________________________
Xxx
Xxxxx,
CEO
and
President
ANYWHERE
MD, INC.
Company
By:
______________________________
Xxxxxx
X.
Xxxxxx,
CEO
and
President
XXXXXX
X. XXXXXX
Majority
Shareholder of the Company
By:
______________________________
Xxxxxx
X.
Xxxxxx,
an
individual
EXHIBIT
A
PROMISSORY
NOTE
| PRINCIPAL: $831,250 (the “Principal”) |
DATE:
May __,
2007
|
EXHIBIT
B
FORM
OF LEGAL OPINION
At
the
Closing, the Purchaser shall have received the favorable opinion of [_________],
counsel for the Company, dated as of the Closing Date, addressed to the
Purchaser, and in form and scope reasonably satisfactory to counsel for the
Purchaser, substantially to the effect that:
(i)
the
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada, with the requisite corporate power to
own
and operate its properties and assets, and to carry on its business as currently
operated and is duly qualified to do business and is in good standing as a
foreign corporation in those jurisdictions where the failure to so qualify
would
have a material adverse effect on the business of the Company;
(ii)
Each
of the issued and outstanding shares of Common Stock of the Company are validly
issued, fully paid, and nonassessable. To such counsel's knowledge, there are
no
preemptive rights, options or warrants or other conversion privileges or rights
presently outstanding to purchase any of the authorized but unissued stock
of
the Company;
(iii)
to
such counsel's knowledge there is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or investigation pending
or threatened with respect to the Company or any of its operations, businesses,
properties, or assets or such as individually or in the aggregate have, or
could
reasonably be expected to have a material adverse effect upon the operations,
business, properties, or assets of the Company or which could materially
adversely affect the transactions or other acts contemplated by this Agreement
or the validity or enforceability of this Agreement;
(iv)
the
Company has all requisite corporate power and authority to execute, deliver,
and
perform this Agreement, and to consummate the transactions contemplated hereby.
All necessary corporate proceedings of the Company have been taken to authorize
the execution, delivery, and performance by the Company of this Agreement,
and
the consummation of the transactions contemplated hereby. This Agreement has
been duly authorized, executed, and delivered by the Company, is the legal,
valid, and binding obligation of the Company, and is enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application now or hereafter in effect relating to or
affecting the enforcement of creditors' right generally and the application
of
general equitable principles in any action, legal or equitable and then except,
as to those provisions relating to indemnity or contribution, such opinion
shall
be limited as effected by any Federal or state securities laws regarding
indemnity and/or contribution;
(v)
upon
receipt of payment therefore in accordance with the Agreement, the Securities
shall be duly authorized, validly issued, fully paid, and
nonassessable;
(vi)
assuming that (i) the sale of the Securities was made in the manner and by
the
means contemplated by the Agreement, (ii) a proper Form D is filed in accordance
with Rule 503 of Regulation D, (iii) the Company's representations, warranties
and covenants set forth herein are true and correct, and (iv) the
representations of the Purchaser set forth herein are true and correct (which
facts will not be independently verified by such counsel), the sale of
Securities pursuant to the Agreement is exempt from registration under the
Act.
(vii)
the
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereunder and the issuance of the Securities will not result in
any
material violation of, or material conflict with, or constitute a material
default under (i) the certificate of incorporation or by-laws of the Company,
(ii) to such counsel's knowledge, any material contract, instrument, agreement
or document to which the Company is a party, or by which the assets or
properties of the Company are bound; or (iii) to such counsel's knowledge,
any
statute, rule or regulation of Nevada, Delaware or New York corporate law,
or
any judgment or order to which the Company is a party.
