EXHIBIT 10.10
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STOCK PURCHASE AGREEMENT
Among
LIQUID STONE PARTNERS ("PURCHASER")
And
NATIONAL HEALTHCARE TECHNOLOGY, INC ("SELLER")
This STOCK PURCHASE AGREEMENT, is made as of April 4, 2006 the ("Agreement"),
between LIQUID STONE PARTNERS, ("Liquid"or"Purchaser"), and NATIONAL HEALTHCARE
TECHNOLOGY, INC., ("National") a Colorado Corporation ("Seller").
WHEREAS, the Board of Directors of the Seller and the duly authorized
Managing Partner of the Purchaser have approved the terms of this Agreement and
of the transactions contemplated hereby; and
WHEREAS, Seller desires to sell all of the stock, assets, and
liabilities of ES3 Special Stone Surfaces Inc, a Nevada Corporation, the ("
Company");and
WHEREAS, the Seller and Purchaser desire to set forth the terms of the
agreement in connection with the transactions provided for herein; and
WHEREAS, the Closing of the transactions will occur upon the execution
of this agreement that the effective date for accounting tax and other
considerations for this agreement shall be 10/1/05.
NOW, THEREFORE, in consideration of the promises and representations,
warranties and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
Definitions. As used herein, the following terms shall have the following
meanings:
"Agreement" has the meaning specified in the introductory paragraph
above.
"Ancillary Documents" as to any Person means all agreements, releases,
certificates and other documents contemplated by this Agreement to be entered
into or executed by such Person; and where a reference to a Person is made in
conjunction with a reference to "Ancillary Documents," the term shall refer only
to such documents which such Person has entered into or executed.
"Closing" has the meaning specified in Section 3.01 hereof.
"Closing Date" has the meaning specified in Section 3.01 hereof.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock of the Seller.
"Damages" has the meaning specified in Section 6.02 hereof.
"Governmental Entity" has the meaning specified in Section 4.02 hereof.
"Knowledge" means, with respect to any Person, (i) actual knowledge of
such Person (including the actual knowledge of the officers, directors and key
employees of such Person) and (ii) actual knowledge that could have been
acquired by such Person after making such due inquiry and exercising such due
diligence as a prudent businessperson would have made or exercised in the
management of his or her business affairs in light of the circumstances.
"Laws" means all applicable common law and any statute, law, code,
ordinance, regulation, rule, resolution, order, determination, writ, injunction,
award (including, without limitation, any award of any arbitrator), judgments
and decrees applicable to the specified persons or entities and to the
businesses and assets thereof.
"Person" means a natural person, corporation, partnership or other
business entity, or any Governmental Entity.
"Purchaser" has the meaning specified in the introductory paragraph
above.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" has the meaning specified in the introductory paragraph above.
"Tax" and "Taxes" shall mean all federal, state, local and foreign
property, sales and use, payroll, withholding, franchise and income taxes and
all assessments, rates, levies, fees and other governmental charges, including
any interest and penalties in respect of such amounts.
ARTICLE 2 - PURCHASED STOCK
2.01 Purchase and Sale of Stock. Subject to the terms and conditions
of this Agreement and in reliance upon Seller's representations and warranties
contained herein, at Closing, Seller shall, convey, assign, transfer and
deliver, and Purchaser shall acquire all of the issued and outstanding stock of
ES3 Liquid Stone Surfaces Inc, a Nevada Corporation and all of the assets and
liabilities of the company. The liabilities shall be all liabilities associated
with the company
2.02. Purchase Price. The Purchase price shall be equal to the
liabilities of the company which are assumed by Purchaser in this agreement.
Purchaser specifically assumes all liabilities, obligations, debts, liens,
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employee wages and all other obligations associated with the operation and
management of the company. Purchaser agrees to take the company with all known
and unknown assets, liabilities and obligations associated with the company and
the operations of the company
ARTICLE 3 - THE CLOSING; ACQUISITION PRICE
3.01 Closing. The Closing referred to herein as a "Closing", and at
the date of the Closing being April 4, 2006, Seller shall deliver to Purchaser a
certificate for the appropriate number of Shares to be purchased at such Closing
by Purchaser.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
4.01 Organization, Good Standing and Foreign Qualification.
Seller is a Colorado corporation duly incorporated and validly existing and in
good standing under the laws of. Seller or its Subsidiaries are duly licensed or
qualified to do business as a foreign corporation and is in good standing under
the laws of each other jurisdiction in which the character of the properties
owned or leased by it therein or in which the transaction of business makes such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on Sellers.
4.02 Authority Relative to Agreements. Subject to Seller's receipt
of shareholder approval ("Shareholder Approval") for the sale of Shares in the
Second Closing, Seller has the requisite corporate power and authority to enter
into this Agreement and all Ancillary Documents, and to carry out their
obligations hereunder and hereunder. The execution and delivery of this
Agreement and each Ancillary Document, and the consummation of the transactions
provided for herein and therein, have been duly authorized by the unanimous
consent of the Board of Directors of Seller and does not violate any provision
of the respective Certificates of Incorporation or Bylaws of Seller or its
Subsidiaries. The execution by Seller of this Agreement and each Ancillary
Document, and, subject to the receipt of Shareholder Approval, the consummation
of the transactions provided for hereby and thereby, will not conflict with or
effect a breach, violation, default, or cause an event of default, under any
mortgage, lease, or other material agreement or instrument, or any statute,
regulation, order, judgment or decree to which Sellers are a party or by which
they are bound, or any law or governmental regulation applicable to Seller, or
require the consent of any Person (other than the parties to this Agreement).
Without limiting the generality of the foregoing, and except for Seller's
receipt of Shareholder Approval and the filing with the SEC and delivery to
Seller's stockholders of the required proxy/information statement, no notices,
reports or other filings are required to be made by Seller with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by Seller from, any government or governmental, regulatory or
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administrative authority or agency, domestic or foreign (each, a "Governmental
Entity"), in connection with the execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated by this
Agreement and the Ancillary Documents. This Agreement and the Ancillary
Documents constitute legal, valid and binding obligations of Seller, enforceable
in accordance with their terms, except as enforcement thereof may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting rights of creditors generally and general principles of equity,
whether applied at law or in equity.
4.03 Tax Matters. To the best Knowledge of Seller, Seller has duly and
timely filed all tax returns and reports required to be filed by Seller and its
Subsidiaries prior to Closing, except to the extent that any failure or alleged
failure to file any Tax return or report would not have a material adverse
effect on Seller or the Acquired Assets. All of Sellers' tax returns and reports
are true and complete in all material respects. Seller has paid all taxes shown
to be due on the aforesaid tax returns and reports.
4.04. Litigation. There is no prosecution, suit, action, arbitration
proceeding or governmental proceeding pending, or to the best Knowledge of
Seller, threatened, against or affecting Seller or its Subsidiaries or the
transactions contemplated by this Agreement. There is not outstanding against
Seller or its Subsidiaries any decision, judgment, decree, injunction, rule or
order of any court, arbitrator or Governmental Entity.
4.05. Brokers. Purchaser shall not have any obligation or liability to
pay any fee or other compensation to any Person engaged by Seller in connection
with this Agreement and the transactions contemplated hereby.
4.06. True Copies. All copies of documents delivered or made available
to Purchaser in connection with this Agreement are true and correct copies of
the originals thereof.
4.07. Compliance with Law. Seller is in material compliance with all
federal, state and local laws, regulations and ordinances applicable to its
business and operations.
4.08. Intellectual Property. The best Knowledge of Seller, Seller and
its Subsidiaries owns, or are licensed or otherwise possess legally enforceable
rights to use its Intellectual Property, free and clear of all material
encumbrances. Seller does not have any Knowledge and Sellers have not received
any notice to the effect that (i) the use of the Intellectual Property may
infringe on any intellectual property right or other legally protect-able right
of another, or (ii) any Person is using any patents, copyrights, trademarks,
service marks, trade names, trade secrets or similar property that are
confusingly similar with the Intellectual Property. Sellers have not granted any
license or other right to any other Person with respect to the Intellectual
Property. To the best of Sellers' Knowledge, the consummation of the
transactions contemplated by this Agreement will not result in the termination
or impairment of any of the Intellectual Property. Seller is not aware of any
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reason that would prevent any pending trademark, service xxxx, copyright, patent
or other intellectual property applications required for the use of the
Intellectual Property from having registration granted.
4.09 Disclosure. No representation or warranty by Sellers in, and no
document, statement, certificate, schedule or exhibit to be furnished or
delivered to Purchaser pursuant to, this Agreement contains or will contain any
material untrue or misleading statement of fact or omits or will omit any fact
necessary to make the statements contained herein or therein not materially
misleading. No press releases or disclosure will be made by either party to this
agreement without the written release from each party to this agreement.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
5.01. Organization and Good Standing. Purchaser is a general
partnership validly existing and in good standing under the laws of Nevada.
ARTICLE 6 - SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
6.01. Survival of Representations and Warranties of the Parties. Except
as provided in Section 6.02 and the tax obligations set forth herein, all
representations and warranties made by any party hereto contained in this
Agreement or in any Ancillary Document, and the indemnification obligations of
each party hereto with respect to representations and warranties, shall survive
for a period ending two years following the Closing Date. Notwithstanding the
foregoing, the representations and warranties relating to Section 4.03 hereof,
and the indemnity obligations with respect to such representations and
warranties, shall remain operative and in full force and effect until the
expiration of the applicable statute of limitations.
6.02. Indemnification by Purchaser. Purchaser hereby agrees to indemnify and
hold Seller harmless from and against any damages, losses, liabilities,
deficiencies, costs and/or expenses (including all reasonable legal fees,
expenses and other out-of-pocket costs) (collectively, "Damages") resulting
from, arising out of or in connection with or related to the transactions under
this Agreement whether or not any such Damages are in connection with any
action, suit, proceeding, demand or judgment of a third party (including
Governmental Entities).
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ARTICLE 7 - CONDITIONS TO THE CLOSING
7.01. Condition to Obligations of Purchaser. The obligations of Purchaser to
close the transactions contemplated hereby are subject to the satisfaction of
the following condition: The representations and warranties made by Sellers in
Section 4 hereof shall be true and correct when made, and shall be true and
correct in all material respects on the Closing Date with the same force and
effect as if they had been made on and as of said date.
ARTICLE 8 - THE CLOSING
At the Closing, the parties shall deliver the following documents and
instruments and take the following actions:
8.01. Closing . Seller shall deliver certificates representing the
Shares.
ARTICLE 9 - ADDITIONAL AGREEMENTS
9.01. Agreements as to Tax Matters. The parties to this Agreement will
cooperate fully with each other, in connection with the preparation, signing and
filing of tax returns and in any administrative, judicial or other proceeding
involving taxes relating to the Acquired Assets.
9.02. Post-Closing Documents. The parties hereto will cooperate with
one another after Closing and, without any further consideration, will execute
and deliver such other documents as shall be reasonably required after the
Closing to transfer title to the Shares to Purchaser and to take any other
action necessary to carry out the intent and purposes of this Agreement.
9.03. Notice. Each party shall notify the others of any claim, demand,
action, suit or proceeding relating to or arising in connection with, the Shares
as soon as practicable after learning of such claim, demand, action, suit, or
proceeding.
ARTICLE 10 - GENERAL PROVISIONS
10.01. Expenses. Each party shall pay its own expenses (including legal
and accounting costs and expenses) in connection with the negotiation,
preparation and consummation of this Agreement and the Ancillary Documents, and
the transactions contemplated hereby and thereby.
10.02. 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
the State of Nevada without giving effect to any choice or conflict of law
provision or rule (whether in the State of Nevada or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Nevada. In furtherance of the foregoing, the internal law of the State
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of Nevada 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.
10.03. Submission to Jurisdiction. Any legal action or proceeding with
respect to this Agreement or the other Ancillary Documents may be brought in the
courts of the State of Nevada. Purchaser hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Seller 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 convenes, which it
may now or hereafter have to the bringing of any such action or proceeding in
such respective jurisdictions. Each Seller 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.
10.04. Headings. Article and Section headings used in this Agreement
are for convenience only and shall not affect the meaning or construction of
this Agreement.
10.05 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or mailed by
certified mail (return receipt requested) to the parties at the following
address (or at such other address for a party as shall be specified by like
notice), or if sent by telecopy to the parties at the following telecopy
numbers;
For Seller:
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Fax: 000 000 0000
Ph: 000 000 0000
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For Purchaser:
0000 Xxxxx Xxxxx Xxxxx, Xxx 000
Xxx Xxxxx, XX 00000
Ph: 000 000 0000
Fax: 000 000 0000
10.06. Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the successors of Sellers and Purchaser.
10.07. Final Agreement; Entire Agreement. This Agreement, including any
agreements set forth as an annex to any this Agreement, is the final agreement
between the parties and constitutes the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, both written and
oral, whether signed or unsigned, with respect to the subject matter hereof.
10.08. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
10.09. Amendment. This Agreement may be amended only by an instrument
in writing signed by or on behalf of each of the parties hereto.
10.10. Preparation of Agreement. Purchaser prepared this Agreement and the
Ancillary Agreements solely on its behalf. 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.
IN WITNESS WHEREOF, the parties have duly executed this Stock Purchase
Agreement as of the date first written above.
LIQUID STONE PARTNER
By: /s/ Xxxxxxx X Xxxxxxxx
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Name: Xxxxxxx X Xxxxxxxx
Title: Managing Partner
NATIONAL HEALTHCARE TECHNOLOGY INC
By: /s/
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Name: Title: President
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