STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made effective as of
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the 10th day of October, 2003, by and among Xxxxxx X. Xxxxxx ("Seller") and
Visioneer Holdings Group Inc. (being herein referred to as "Purchaser").
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PRELIMINARY STATEMENTS
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A. Seller is an individual owning 10,000,000 shares or 56.0% of
XxxxxxXxxxxxxx.xxx, Inc. ("Herbal"), and is willing to sell 10,000,000 shares of
common stock of XxxxxxXxxxxxxx.xxx, Inc. (the "Common Stock") representing in
the aggregate 56.0% of the outstanding Common Stock of Herbal.
B. Seller desires to sell the Common Stock to Purchaser, and Purchaser
desires to purchase the Common Stock from Seller, on the terms, provisions and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Seller and Purchaser do hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE COMMON STOCK
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Section 1.01. Purchase and Sale. On the Closing Date and upon the terms
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and subject to the conditions set forth herein, the Seller shall deliver
10,000,000 shares of Herbal Common Stock to the Purchaser free and clear of all
liens, and Purchaser shall purchase the Common Stock from the Seller in
accordance with Section 1.02 below.
Section 1.02. Purchase Price. The purchase price (the "Purchase Price")
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for the Common Stock is $10,000.
Section 1.03. Time and Place of Closing. Subject to the satisfaction or
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waiver of the conditions herein, the closing (the "Closing") of the transactions
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contemplated by this Agreement shall take place on or before October 10, 2003 or
at such time, date or place as Seller and Purchaser may agree.
Section 1.04. Delivery of the Common Stock; Payment of Purchase Price. At
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Closing: (a) the Seller shall deliver to the Purchaser the certificates
representing the Common Stock, duly endorsed in blank or accompanied by stock
powers duly endorsed in blank, with all taxes attributable to the transfer and
sale of the Common Stock paid by the Seller; and (b) the Purchaser shall deliver
to the Seller Purchase Price in accordance with Section 1.02.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER AND HERBAL
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Subject to all of the terms, conditions and provisions of this Agreement,
the Seller and Herbal hereby represent and warrant to Purchaser, as of the date
hereof and as of the Closing, as follows:
Section 2.01. Organization and Qualification. Herbal is a Nevada
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corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. Herbal has all requisite power and authority, corporate
or otherwise, to own, lease and operate its assets and properties and to carry
on its business as now being conducted. Herbal does not have and has had no
subsidiaries or affiliates.
Section 2.02. Capitalization of Herbal; Title to the Common Stock. There
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are 50,000,000 shares of common stock authorized of Herbal, of which 18,000,000
shares of common stock will be issued and outstanding within five days of the
execution of this Agreement, with a par value of $.001 per share. All of the
outstanding shares of common stock have been duly authorized and validly issued,
are fully paid and nonassessable and are free of preemptive rights. The Common
Stock transferred by the Seller to Purchaser will be free and clear of liens.
There are no outstanding or authorized subscriptions, options, warrants, calls,
rights or other similar contracts, including rights of conversion or exchange
under any outstanding debt or equity security or other contract, to which any of
the Common Stock will be subject or obligating the Seller and/or Herbal to
issue, deliver or sell, or cause to be issued, delivered or sold, any other
shares of capital stock of Herbal or any other debt or equity securities
convertible into or evidencing the right to subscribe for any such shares of
capital stock or obligating the Seller and/or Herbal to grant, extend or enter
into any such contract. There are no voting trusts, proxies or other contracts
to which Seller and/or Herbal are a party or are bound with respect to the
voting of any shares of capital stock of Herbal. The Seller has full legal
right to sell, assign and transfer the Common Stock to Purchaser and will, upon
payment for the Common Stock and delivery to Purchaser of a certificate or
certificates representing the Common Stock, transfer good and indefeasible title
to the Common Stock to Purchaser, free and clear of liens.
Section 2.03. Authority. The Seller has all requisite power and
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authority, corporate or otherwise, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and thereby. The Seller and
Herbal have duly and validly executed and delivered this Agreement and will, on
or prior to the Closing, execute, such other documents as may be required
hereunder and, assuming the due authorization, execution and delivery of this
Agreement by the parties hereto and thereto, this Agreement constitutes, the
legal, valid and binding obligation of the Seller and Herbal, as applicable,
enforceable against the Seller and Herbal, as applicable, in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general equitable principles.
Section 2.04. No Conflict. The execution and delivery by the Seller and
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Herbal of this Agreement and the consummation of the transactions contemplated
hereby and thereby, do not and will not, by the lapse of time, the giving of
notice or otherwise: (a) constitute a violation of any law; (b) constitute a
breach or violation of any provision contained in the Articles of Incorporation
or Bylaws of Herbal; (c) constitute a breach of any provision contained in, or a
default under, any governmental approval, any writ, injunction, order, judgment
or decree of any governmental authority or any contract to which the Seller
and/or Herbal are a party; or (d) result in or require the creation of any lien
upon the Common Stock.
Section 2.05. Consents and Approvals. No governmental approvals and no
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notifications, filings or registrations to or with any governmental authority or
any other person is or will be necessary for the valid execution and delivery by
the Seller and/or Herbal of this Agreement or the consummation of the
transactions contemplated hereby or thereby, or the enforceability hereof or
thereof, other than those which have been obtained or made and are in full force
and effect.
Section 2.06. Litigation. There are no claims pending or, to the
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knowledge of the Seller and Herbal, threatened against or affecting Herbal or
any of its assets and properties before or by any governmental authority or any
other person. The Seller and Herbal have no knowledge of the basis for any
claim, which alone or in the aggregate: (a) could reasonably be expected to
result in any liability with respect to Herbal; or (b) seeks to restrain or
enjoin the execution and delivery of this Agreement or the consummation of any
of the transactions contemplated hereby or thereby. There are no judgments or
outstanding orders, injunctions, decrees, stipulations or awards against Herbal
or any of its assets and properties.
Section 2.07. Brokers, Finders and Financial Advisors. No broker, finder
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or financial advisor has acted for Seller in connection with this Agreement or
the transactions contemplated hereby or thereby, and no broker, finder or
financial advisor is entitled to any broker's, finder's or financial advisor's
fee or other commission in respect thereof based in any way on any contract with
Seller.
Section 2.08. Disclosure. The schedules, documents, exhibits, reports,
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certificates and other written statements and information furnished by or on
behalf of Seller and/or Herbal to the Purchaser do not contain any material
misstatement of fact or, to the knowledge of Seller and Herbal, omit to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading. Seller
and Herbal have not withheld any fact known to them which has or is reasonably
likely to have a material adverse effect with respect to Herbal.
Section 2.09. Ownership. The Seller represents and warrants that he owns
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56% of the stock of Herbal prior to the issuance of shares in connection with a
Share Exchange Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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Subject to all of the terms, conditions and provisions of this Agreement,
Purchaser hereby represents and warrants to the Seller, as of the date hereof
and as of the Closing, as follows:
Section 3.01. Authority. Purchaser has all requisite power and authority
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to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby. Purchaser has duly and validly executed and
delivered this Agreement and, assuming the due authorization, execution and
delivery of this Agreement by the other parties hereto and thereto, this
Agreement constitutes the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
equitable principles.
Section 3.02. No Conflict. The execution and delivery by Purchaser of
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this Agreement and the consummation of the transactions contemplated hereby and
thereby do not and shall not, by the lapse of time, the giving of notice or
otherwise: (a) constitute a violation of any law; or (b) constitute a breach of
any provision contained in, or a default under, any governmental approval, any
writ, injunction, order, judgment or decree of any governmental authority or any
contract to which Purchaser is a party or by which Purchaser is bound or
affected.
Section 3.03. Consents and Approvals. No governmental approvals and no
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notifications, filings or registrations to or with any governmental authority or
any other person is or will be necessary for the valid execution and delivery by
Purchaser of this Agreement and the closing documents to which it is a party, or
the consummation of the transactions contemplated hereby or thereby, or the
enforceability hereof or thereof, other than those which have been obtained or
made and are in full force and effect.
Section 3.04. Litigation. There are no claims pending or, to the
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knowledge of Purchaser, threatened, and Purchaser has no knowledge of the basis
for any claim, which either alone or in the aggregate, seeks to restrain or
enjoin the execution and delivery of this Agreement or the consummation of any
of the transactions contemplated hereby or thereby. There are no judgments or
outstanding orders, injunctions, decrees, stipulations or awards against
Purchaser which prohibits or restricts, or could reasonably be expected to
result in any delay of, the consummation of the transactions contemplated by
this Agreement.
Section 3.05. Brokers, Finders and Financial Advisors. No broker, finder
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or financial advisor has acted for Purchaser in connection with this Agreement
or the transactions contemplated hereby or thereby, and no broker, finder or
financial advisor is entitled to any broker's, finder's or financial advisor's
fee or other commission in respect thereof based in any way on any contract with
Purchaser.
ARTICLE IV
COVENANTS
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Section 4.01. Further Assurances. Seller, Herbal and Purchaser agree
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that, from time to time, whether before, at or after the Closing, each of them
will take such other action and to execute, acknowledge and deliver such
contracts, deeds, or other documents (a) as may be reasonably requested and
necessary or appropriate to carry out the purposes and intent of this Agreement;
or (b) to effect or evidence the transfer to the Purchaser of the Common Stock
held by or in the name of the Seller.
Section 4.02. Conduct of Business. Except as otherwise contemplated by
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this Agreement, after the date hereof and prior to the Closing or earlier
termination of this Agreement, unless Purchaser shall otherwise agree in
writing, Herbal shall
(a) not take or perform any act or refrain from taking or performing
any act which would have resulted in a breach of the representations and
warranties set forth in Article II;
(b) not enter into any agreement, or extend an existing agreement that
will survive after the Closing;
(c) not sell, pledge, lease, license or otherwise transfer any of their
assets or properties or make any payments or distributions to Herbal or any of
its affiliates; and
(d) not make any payments or distributions of assets or properties to
Herbal or its shareholders.
Prior to the Closing, Herbal shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision of its
operations.
Section 4.03. Public Announcements. Except as required by law, without
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the prior written approval of the other party, neither Seller, Herbal nor
Purchaser will issue, or permit any agent or affiliate thereof to issue, any
press release or otherwise make or permit any agent or affiliate thereof to
make, any public statement or announcement with respect to this Agreement or the
transactions contemplated hereby and thereby.
ARTICLE V
CONDITIONS
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Section 5.01. Conditions to Obligations of each of the Parties. The
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respective obligations of each party to consummate the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing of the
following conditions: (a) no preliminary or permanent injunction or other order,
decree or ruling which prevents the consummation of the transactions
contemplated by this Agreement shall have been issued and remain in effect; (b)
no claim shall have been asserted, threatened or commenced and no law shall have
been enacted, promulgated or issued which would reasonably be expected to (i)
prohibit the purchase of, payment for or retention of the Common Stock by
Purchaser or the consummation of the transactions contemplated by this Agreement
or (ii) make the consummation of any such transactions illegal; and (c) all
approvals legally required for the consummation of the transactions contemplated
by this Agreement shall have been obtained and be in full force and effect at
the Closing.
Section 5.02. Conditions to Obligations of Seller. The obligations of
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Seller to consummate the transactions contemplated hereby shall be subject to
the fulfillment at or prior to the Closing Date of the following additional
conditions, except as Seller may waive in writing: (a) Purchaser shall have
complied with and performed in all material respects all of the terms,
covenants, agreements and conditions contained in this Agreement which are
required to be complied with and performed on or prior to Closing; and (b) the
representations and warranties of Purchaser in this Agreement shall have been
true and correct on the date hereof or thereof, as applicable, and such
representations and warranties shall be true and correct on and at the Closing
(except those, if any, expressly stated to be true and correct at an earlier
date), with the same force and effect as though such representations and
warranties had been made on and at the Closing.
Section 5.03. Conditions to Obligations of Purchaser. The obligations of
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Purchaser to consummate the transactions contemplated hereby shall be subject to
the fulfillment at or prior to Closing of the following additional conditions,
except as Purchaser may waive in writing: (a) the Seller and Herbal shall have
complied with and performed in all material respects all of the terms,
covenants, agreements and conditions contained in this Agreement which are
required to be complied with and performed on or prior to Closing; (b) the
representations and warranties of Seller and Herbal in this Agreement shall have
been true and correct on the date hereof or thereof, as applicable, and such
representations and warranties shall be true and correct on and at the Closing
(except those, if any, expressly stated to be true and correct at an earlier
date), with the same force and effect as though such representations and
warranties had been made on and at the Closing; (c) Herbal shall owe no
liabilities exceeding $1,000 at the Closing, other than those disclosed to
Purchaser in writing; and (d) Purchaser shall have received each of the
following, dated as of the Closing: (i) a certificate executed by an officer of
Herbal, individually and in his capacity as officer and director of Herbal,
certifying as to fulfillment of the conditions specified in Section 5.03(a) and
Section 5.03(b); and (ii) the original minute books, including the original
Articles or Incorporation and Bylaws of Herbal, and stock record and transfer
books of Herbal, reflecting as of the Closing the name and address of, and the
number of shares of common stock owned of record of Herbal.
ARTICLE VI
INDEMNIFICATION
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Section 6.01. Indemnification of Seller. Subject to the terms and
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conditions of this Article VI, Purchaser agrees to indemnify, defend and hold
harmless Seller, from and against any and all claims, liabilities and losses
which may be imposed on, incurred by or asserted against, arising out of or
resulting from, directly or indirectly:
(a) the inaccuracy of any representation or breach of any warranty of
Purchaser contained in or made pursuant to this Agreement which was not
disclosed to Seller in writing prior to the Closing; provided that no such
notification shall be deemed to waive or abrogate any right of Seller with
respect to conditions to Closing in Section 5.02;
(b) the breach of any covenant or agreement of Purchaser contained in
this Agreement; or
(c) any claim to fees or costs for alleged services by a broker, agent,
finder or other person claiming to act in a similar capacity at the request of
Purchaser in connection with this Agreement;
provided, however, that Purchaser shall not be liable for any portion of any
claims, liabilities or losses resulting from a material breach by Seller, of any
of its obligations under this Agreement or from Seller's gross negligence, fraud
or willful misconduct.
Section 6.02. Indemnification of Purchaser. Subject to the terms and
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conditions of this Article VI, from and after the Closing, Seller, agrees to
indemnify, defend and hold harmless the Purchaser, its respective affiliates,
its respective present and former directors, officers, shareholders, employees
and agents and its respective heirs, executors, administrators, successors and
assigns (the "Purchaser Indemnified Persons"), from and against any and all
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claims, liabilities and losses which may be imposed on, incurred by or asserted
against any Purchaser Indemnified Person, arising out of or resulting from,
directly or indirectly:
(a) the inaccuracy of any representation or breach of any warranty of
the Seller or Herbal contained in or made pursuant to this Agreement which was
not disclosed to Purchaser in writing prior to the Closing; provided that no
such notification shall be deemed to waive or abrogate any right of Purchaser
with respect to conditions to Closing in Section 5.03;
(b) the breach of any covenant or agreement of Seller or Herbal
contained in this Agreement;
(c) the conduct of the business of Herbal prior to the Closing; or
(d) any claim to fees or costs for alleged services rendered by a
broker, agent, finder or other person claiming to act in a similar capacity at
the request of the Seller in connection with this Agreement;
provided, however, that Seller and Herbal shall not be liable for any portion of
any claims, liabilities or losses resulting from a material breach by Purchaser
of its obligations under this Agreement or from a Purchaser Indemnified Person's
gross negligence, fraud or willful misconduct.
ARTICLE VII
MISCELLANEOUS
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Section 7.01. Notices. Any and all notices, requests or other
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communications hereunder shall be given in writing and delivered by: (a)
regular, overnight or registered or certified mail (return receipt requested),
with first class postage prepaid; (b) hand delivery; (c) facsimile transmission;
or (d) overnight courier service, to the parties at the following addresses or
facsimile numbers:
(i) if to Seller, to: Xxxxxx X. Xxxxxx
0000 - 000xx Xxxxxx # 000
Xxxxxx, XX, Xxxxxx X0X 0X0
(ii) if to Purchaser, to: Visioneer Holdings Group Inc.
000 Xx. Xxxx Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0 Xxxxxx
(iii) Copies to: Xxxxx X. Xxxx, Attorney at Law
0000 Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
or at such other address or number as shall be designated by either of the
parties in a notice to the other party given in accordance with this Section
7.01. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given: (A) in the case of a notice sent by
regular or registered or certified mail, three business days after it is duly
deposited in the mails; (B) in the case of a notice delivered by hand, when
personally delivered; (C) in the case of a notice sent by facsimile, upon
transmission subject to telephone confirmation of receipt; and (D) in the case
of a notice sent by overnight mail or overnight courier service, the next
business day after such notice is mailed or delivered to such courier, in each
case given or addressed as aforesaid.
Section 7.02. Benefit and Burden. This Agreement shall inure to the
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benefit of, and shall be binding upon, the parties hereto and their successors
and permitted assigns.
Section 7.03. No Third Party Rights. Nothing in this Agreement shall be
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deemed to create any right in any creditor or other person not a party hereto
(other than the Purchaser Indemnified Persons) and this Agreement shall not be
construed in any respect to be a contract in whole or in part for the benefit of
any third party (other than the Purchaser Indemnified Persons).
Section 7.04. Amendments and Waiver. No amendment, modification,
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restatement or supplement of this Agreement shall be valid unless the same is in
writing and signed by the parties hereto. No waiver of any provision of this
Agreement shall be valid unless in writing and signed by the party against whom
that waiver is sought to be enforced.
Section 7.05. Assignments. Purchaser may assign any of its rights,
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interests and obligations under this Agreement and must notify Seller in
writing.
Section 7.06. Counterparts. This Agreement may be executed in
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counterparts and by the different parties in separate counterparts, each of
which when so executed shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
Section 7.07. Captions and Headings. The captions and headings contained
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in this Agreement are inserted and included solely for convenience and shall not
be considered or given any effect in construing the provisions hereof if any
question of intent should arise.
Section 7.08. Construction. The parties acknowledge that each of them has
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had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its legal counsel and that this
Agreement shall be construed as if jointly drafted by the parties hereto.
Section 7.09. Severability. Should any clause, sentence, paragraph,
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subsection, Section or Article of this Agreement be judicially declared to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Agreement, and the parties agree
that the part or parts of this Agreement so held to be invalid, unenforceable or
void will be deemed to have been stricken herefrom by the parties, and the
remainder will have the same force and effectiveness as if such stricken part or
parts had never been included herein.
Section 7.10. Remedies. The parties agree that the covenants and
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obligations contained in this Agreement relate to special, unique and
extraordinary matters and that a violation of any of the terms hereof or thereof
would cause irreparable injury in an amount which would be impossible to
estimate or determine and for which any remedy at law would be inadequate. As
such, the parties agree that if either party fails or refuses to fulfill any of
its obligations under this Agreement or to make any payment or deliver any
instrument required hereunder or thereunder, then the other party shall have the
remedy of specific performance, which remedy shall be cumulative and
nonexclusive and shall be in addition to any other rights and remedies otherwise
available under any other contract or at law or in equity and to which such
party might be entitled.
Section 7.11. Applicable Law. THIS AGREEMENT AND THE RIGHTS AND
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OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
Section 7.12. Submission to Jurisdiction. Each of the parties hereby: (a)
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irrevocably submits to the non-exclusive personal jurisdiction of any Nevada
court, over any claim arising out of or relating to this Agreement and
irrevocably agrees that all such claims may be heard and determined in such
Nevada court; and (b) irrevocably waives, to the fullest extent permitted by
applicable law, any objection it may now or hereafter have to the laying of
venue in any proceeding brought in a Nevada court.
Section 7.13. Expenses; Prevailing Party Costs. The Seller, Herbal, and
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Purchaser shall pay their own expenses incident to this Agreement and the
transactions contemplated hereby and thereby, including all legal and accounting
fees and disbursements, and Seller shall be solely liable for any and all
expenses of the Seller and/or Herbal which are incident to this Agreement and
the transactions contemplated hereby and thereby (other than customary general,
administrative and overhead expenses incurred in the ordinary course of
business). Notwithstanding anything contained herein or therein to the
contrary, if any party commences an action against another party to enforce any
of the terms, covenants, conditions or provisions of this Agreement, or because
of a breach by a party of its obligations under this Agreement, the prevailing
party in any such action shall be entitled to recover its losses, including
reasonable attorneys' fees, incurred in connection with the prosecution or
defense of such action, from the losing party.
Section 7.14. Entire Agreement. This Agreement sets forth all of the
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promises, agreements, conditions, understandings, warranties and representations
among the parties with respect to the transactions contemplated hereby and
thereby, and supersedes all prior agreements, arrangements and understandings
between the parties, whether written, oral or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first above written.
"SELLER"
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
"PURCHASER"
Visioneer Holdings Group Inc.
By: /s/ Marius Silvasan
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Its: President
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Printed Name: Marius Silvasan
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