COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is entered into the 17th day
of June, 2004 (the "Agreement"), by and among the seller listed on
Schedule 1.1 (the "Seller"), the purchasers listed on Schedule 1.1 (the
"Purchasers") and Email Real Xxxxxx.xxx, Inc., a Colorado corporation
("EMLR" or the "Company"). Certain capitalized terms are defined in
Section 9.12.
WHEREAS, the Seller owns an aggregate of 22,000,000 shares (the
"Shares") of common stock, par value $.001 per share of the Company (the
"Common Stock") representing approximately 88 percent of the issued and
outstanding shares of Common Stock of the Company; and
WHEREAS, the Purchasers desire to purchase from the Seller, and the
Seller desires to sell to the Purchasers, a portion of the Shares (the
"Purchased Shares") and desires for the Seller to forfeit and deliver to
the Company's treasury a portion of the Shares (the "Canceled Shares"),
subject to adjustment in accordance with the formula set forth on
Schedule 1.2 and the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Agreement, the Purchasers and the Seller
agree as follows:
ARTICLE 1
SALE AND/OR CANCELLATION OF THE SHARES
Section 1.1 Sale of the Shares. Subject to the terms and
conditions set forth in this Agreement, Seller agrees to (a) sell,
transfer and assign to the Purchasers and the Purchasers agree to
purchase from the Seller the Purchased Shares, for an aggregate purchase
price of $388,888.88 (the "Purchase Price") and (b) forfeit and deliver
to the Company's treasury the Canceled Shares. The precise number of
Shares constituting the Purchased Shares and the Canceled Shares shall
be determined in accordance with Schedule 1.2.
Section 1.2 Allocation of the Shares. The proportion of the
Purchased Shares purchased and the Purchase Price to be paid, by each
Purchaser is set forth on Schedule 1.1 attached hereto.
ARTICLE 2
CLOSING AND DELIVERY
Section 2.1 Closing Date. Upon the terms and subject to the
conditions set forth herein, the consummation of the purchase and sale
of the Purchased Shares (the "Closing") shall be held at such date (the
"Closing Date") and time as determined at the mutual discretion of the
Seller and the Purchasers; provided, however, that the Closing shall
occur no later than 30 days after the conditions precedent contained in
Article 7 herein have been satisfied (which the parties hereto agree
shall not be later than July 31, 2004 unless extended as provided for
herein). The Closing shall take place at the offices of Xxxxxxx
Xxxxxxxxx LLP, located at 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000, or by the exchange of documents and instruments by mail, courier,
telecopy and wire transfer to the extent mutually acceptable to the
parties hereto.
Section 2.2 Delivery at Closing. At the Closing:
(a) The Seller shall deliver to the Escrow Agent stock
certificates representing the Shares, duly endorsed for transfer to the
Purchasers or
Company, as applicable, and accompanied by, (i) if required by the
Company's transfer agent, an opinion of counsel reasonably acceptable to
the Company, the Purchasers and the Company's transfer agent and (ii)
stock powers or other instruments of transfer duly executed to the
Purchasers, and with all requisite documentary or transfer tax stamps
affixed; and
(b) The Purchasers shall transfer the aggregate Purchase Price to
the Escrow Agent in the form of certified bank check or wire transfer
pursuant to the instructions on Schedule 1.1.
Section 2.3 Escrow. Subject to the terms and conditions set forth
herein, Seller, Purchasers, the Company and Xxxxxx and Xxxx PA, 000 Xxx
Xxxx Xxxx., Xxxxx 0000, Xx. Xxxxxxxxxx, Xx. (the "Escrow Agent") upon
execution and delivery hereof, shall enter into that certain escrow
agreement, substantially in the form of Exhibit B annexed hereto,
providing that the Shares and the Purchase Price shall be held in escrow
by the Escrow Agent and released as described in more detail in such
agreement (the "Escrow Agreement").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
Except as set forth under the corresponding section of the
disclosure schedules (the "Disclosure Schedules") attached hereto as
Exhibit A, Seller and the Company jointly and severally represent and
warrant to the Purchasers that:
Section 3.1 Existence and Power. EMLR is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Colorado and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to
carry on its business as now conducted. EMLR has heretofore delivered
to the Purchasers true and complete copies of the Articles of
Incorporation, as amended, and By-laws, each as currently in effect.
Section 3.2 Authorization; No Agreements. The execution, delivery
and performance by Seller of this Agreement, the performance of its
obligations hereunder, and the consummation of the transactions
contemplated hereby are within the Seller's powers. This Agreement has
been duly and validly executed and delivered by the Seller and is a
legal, valid and binding obligation of the Seller, enforceable against
it in accordance with its terms. The execution, delivery and
performance by the Seller of this Agreement does not violate any
contractual restriction contained in any agreement which binds or
affects or purports to bind or affect the Seller. The Seller is not a
party to any agreement, written or oral, creating rights in respect of
any of such Shares in any third party or relating to the voting of the
Shares. Seller is the lawful owner of the Shares, free and clear of all
security interests, liens, encumbrances, equities and other charges.
Seller further represents that it does not beneficially own any options
or warrants or other rights to purchase shares of Common Stock. There
are no outstanding or authorized options, warrants, rights, calls,
commitments, conversion rights, rights of exchange or other agreements
of any character, contingent or otherwise, providing for the purchase,
issuance or sale of any of the Shares, or any arrangements that require
or permit any of the Shares to be voted by or at the discretion of
anyone other than the Seller, and there are no restrictions of any kind
on the transfer of any of the Shares other than (a) restrictions on
transfer imposed by the Securities Act of 1933, as amended (the
"Securities Act") and (b) restrictions on transfer imposed by applicable
state securities or "blue sky" laws. Seller acquired the Shares on
April 10, 2000.
Section 3.3 Capitalization.
(a) The number of shares and type of all authorized, issued and
outstanding capital stock of the Company is set forth in the Disclosure
Schedules attached hereto. All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassesasable. All of the issued and
outstanding shares of capital stock of the Company have been offered,
issued and sold by the Company in compliance with all applicable federal
and state securities laws. No securities of the Company are entitled to
preemptive or similar rights, and no Person has any right of first
refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated hereby. Except as a
result of the purchase and sale of the Shares, there are no outstanding
options, warrants, script 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 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 issuance and sale of the Shares will not obligate
the Company to issue shares of Common Stock or other securities to any
Person (other than the Purchasers) and shall not result in a right of
any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under such securities.
(b) There are no outstanding obligations, contingent or otherwise,
of EMLR to redeem, purchase or otherwise acquire any capital stock or
other securities of EMLR.
(c) There are no shareholder agreements, voting trusts or other
agreements or understandings to which EMLR or Seller is a party or by
which either of them are bound relating to the voting of any shares of
the capital stock of EMLR.
(e) The Shares shall be duly authorized for issuance, when
delivered in accordance with the terms of this Agreement, and shall be
validly issued, fully paid and non-assessable and the transfer of said
Shares shall not be subject to any preemptive or other similar right.
Section 3.4 Subsidiaries. EMLR's only subsidiary is EMLR
Acquisition Corp., a Delaware corporation (the "Subsidiary") which EMLR
wholly owns. All of the issued and outstanding shares of capital stock
of the Subsidiary have been duly authorized and are validly issued,
fully paid and nonassessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights or other contracts or commitments that could
require EMLR or its Subsidiary to sell, transfer, or otherwise dispose
of any capital stock of its Subsidiary or that could require the
Subsidiary to issue, sell, or otherwise cause to become outstanding any
of its own capital stock. There are no outstanding stock appreciation,
phantom stock, profit participation, or similar rights with respect to
the Subsidiary. There are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of any capital
stock of the Subsidiary. EMLR and its Subsidiary do not own or control,
directly or indirectly, any shares of capital stock of any other
corporation or any interest in any partnership, limited liability
company, joint venture or other non-corporate business enterprise,
except as may be required in connection with the merger by and between
the Company (or a subsidiary or affiliate of the foregoing) and Xxxxxx
Health Sciences, Inc. or other private company ("Private Company")
approved in writing by Seller not later than July 31, 2004 (the
"Merger").
Section 3.5 Financial Statements.
(a) SEC Reports; Financial Statements. The Company has filed all
reports required to be filed by it under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including pursuant to Section 13(a) or 15(d) of the Exchange Act, since
its inception as a public reporting company (the foregoing materials
being collectively referred to herein as the "SEC Reports") on a timely
basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such
extension. The Seller has identified and made available to the
Purchasers a copy of all SEC Reports filed within the 10 days preceding
the date of this Agreement. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations of the
Securities and Exchange Commission (the "Commission") promulgated
thereunder, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company included
in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission
with respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved ("GAAP"), except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all
material respects the financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(b) Except as set forth in its Form 10-KSB for the fiscal year
ended February 28, 2004, EMLR has not been engaged in any other business
activity since at least February 28, 2003.
(c) Since the date of the filing of its quarterly report on Form
10-KSB for the period ended February 28, 2004, except as specifically
disclosed in the SEC Reports: (i) there has been no event, occurrence or
development that has had or that could result in a Material Adverse
Effect; (ii) the Company has not incurred any liabilities (contingent or
otherwise) or amended of any material term of any outstanding security;
(iii) the Company has not 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; (v) the Company has not issued any equity
securities to any officer, director or Affiliate of the Company; (vi)
the Company has not made any loan, advance or capital contributions to
or investment in any Person; (vii) the Company has not entered into any
transaction or commitment made, or any contract or agreement entered
into, relating to its business or any of its assets (including the
acquisition or disposition of, or creation of a lien on, any assets) or
any relinquishment by EMLR of any contract or other right; (viii) the
Company has not granted any severance or termination pay to any current
or former director, officer or employee of EMLR, or increased the
benefits payable under any existing severance or termination pay
policies or employment agreements or entered into any employment,
deferred compensation or other similar agreement (or any amendment to
any such existing agreement) with any current or former director,
officer or employee of EMLR; (ix) the Company has not established,
adopted or amended (except as required by applicable law) any collective
bargaining, bonus, profit sharing, thrift, pension, retirement, deferred
compensation, compensation, stock option, restricted stock or other
benefit plan or arrangement covering any current or former director,
officer or employee of EMLR; (x) the Company has not increased the
compensation, bonus or other benefits payable or otherwise made
available to any current or former director, officer or employee of
EMLR; (xi) the Company has not made any tax election or any settlement
or compromise of any tax liability, in either case that is material to
EMLR or entered into any transaction by the Company not in the ordinary
course of business.
Section 3.6 No Liabilities or Debts. As of the date of this
Agreement, there are no liabilities or debts of EMLR of any kind
whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation
or set of circumstances which could reasonably be expected to result in
such a liability or debt. The Company is not a guarantor of any
indebtedness of any other person, firm or corporation.
Section 3.7 Litigation. There is no action, suit, investigation,
audit or proceeding pending against, or to the best knowledge of EMLR
threatened against or affecting, EMLR or any of its assets or properties
before any court or arbitrator or any governmental body, agency or
official. The Company is not subject to any outstanding judgment, order
or decree. Neither the Company, nor any officer, key employee or 5
percent stockholder of the Company in his, her or its capacity as such,
is in default with respect to any order, writ, injunction, decree,
ruling or decision of any court, commission, board or any other
government agency. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement filed
by the Company under the Exchange Act or the Securities Act.
Section 3.8 Taxes. (a) EMLR has (i) duly filed with the
appropriate taxing authorities all tax returns required to be filed by
or with respect to its business, or are properly on extension and all
such duly filed tax returns are true, correct and complete in all
material respects and (ii) paid in full or made adequate provisions for
on its balance sheet (in accordance with GAAP) all Taxes shown to be due
on such tax returns. There are no liens for taxes upon the assets of
EMLR except for statutory liens for current taxes not yet due and
payable or which may thereafter be paid without penalty or are being
contested in good faith. EMLR has not received any notice of audit, is
not undergoing any audit of its tax returns, or has received any notice
of deficiency or assessment from any taxing authority with respect to
liability for taxes which has not been fully paid or finally settled.
There have been no waivers of statutes of limitations by EMLR with
respect to any tax returns. EMLR has not filed a request with the
Internal Revenue Service for changes in accounting methods within the
last three years which change would affect the accounting for tax
purposes, directly or indirectly, of its business. EMLR has not
executed an extension or waiver of any statute of limitations on the
assessment or collection of any taxes due (excluding such statutes that
relate to years currently under examination by the Internal Revenue
Service or other applicable taxing authorities) that is currently in
effect.
Section 3.9 Internal Accounting Controls; Xxxxxxxx-Xxxxx Act of
2002. To the best of its knowledge, the Company is in compliance with
the requirements of the Xxxxxxxx-Xxxxx Act of 2002 applicable to it as
of the date of this Agreement. The Company maintains a system of
internal accounting controls 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 GAAP 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. The Company
has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed
such disclosures controls and procedures to ensure that material
information relating to the Company, is made known to the certifying
officers by others within those entities, particularly during the period
in which the Company's Form 10-KSB or 10-QSB, as the case may be, is
being prepared. The Company's certifying officers have evaluated the
effectiveness of the Company's controls and procedures as of the date of
its most recently filed periodic report (such date, the "Evaluation
Date"). The Company presented in its most recently filed periodic
report the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no significant changes in the Company's internal controls (as
such term is defined in Item 307(b) of Regulation S-K under the Exchange
Act) or, to the Company's knowledge, in other factors that could
significantly affect the Company's internal controls. EMLR's auditors,
at all relevant times, have been duly registered in good standing with
the Public Company Accounting Oversight Board.
Section 3.10 Solvency; Indebtedness. Based on the financial
condition of the Company as of the Closing Date: (i) the fair saleable
value of the Company's 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 beyond its ability to pay such debts as they mature. 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 (1)
year from the Closing Date. The SEC Reports set forth as of the dates
thereof all outstanding secured and unsecured Indebtedness of the
Company, or for which the Company has commitments. The Company is not
in default with respect to any Indebtedness. At the Closing, there will
be no outstanding liabilities, obligations or indebtedness of the
Company whatsoever.
Section 3.11 No Brokers. Other than a finder's fee of $25,000.00
payable by the Sellers to Xxxxx Brothers, Inc. 000 Xxxx 00xx Xx., Xxxxx
000, Xxx Xxxx, Xxx Xxxx 00000 (the "Broker") no brokerage or finder's
fees or commissions are or will be payable by the Company or Seller 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, and the Company has not taken any action
that would cause any Purchaser to be liable for any such fees or
commissions. The Company and Seller agree that the Purchasers shall
have no obligation with respect to any fees or with respect to any
claims made by or on behalf of any Person, including, but not limited to
the Broker, for fees of the type contemplated by this Section and Seller
shall indemnify and hold Purchasers and the Company harmless from any
fees, costs or liabilities of any kind incurred by Purchasers in
connection therewith. The Seller has received written confirmation from
Broker that it is either a broker-dealer registered with the SEC or is
exempt from such registration with respect to the fees described above.
Section 3.12 Disclosure. Except in connection with the Merger,
the Company and Seller confirms that neither it nor any other Person
acting on its behalf has provided any of the Purchasers or its agents or
counsel with any information that constitutes or might constitute
material, nonpublic information concerning the Company. The Company and
Seller understand and confirm that the Purchasers will rely on the
foregoing representations in effecting transactions in securities of the
Company. All disclosure provided to the Purchasers regarding the
Company, its business and the transactions contemplated hereby,
including the Disclosure Schedules to this Agreement, 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 and Seller acknowledge and agree
that the Purchasers have not made, nor are the Purchasers making, any
representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth herein.
Section 3.13 No Disagreements with Accountants and Lawyers. There
are no disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the accountants and lawyers
formerly or presently employed by the Company and the Company is current
with respect to any fees owed to its accountants and lawyers.
Section 3.14 No Conflicts. The execution, delivery and
performance of this Agreement and the transactions contemplated hereby
do not and will not: (i) conflict with or violate any provision of the
Company's Certificate or Articles of Incorporation, By-laws 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) or other
understanding to which the Company is a party or by which any property
or asset of the Company is bound or affected or (iii) 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.
Section 3.15 Filings, Consents and Approvals. Neither the Seller
nor the Company are 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 of this Agreement.
Section 3.16 Compliance. The Company: (i) is not 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) is not in
violation of any order of any court, arbitrator or governmental body and
(iii) is not and has not been in violation of any statute, rule or
regulation of any governmental authority.
Section 3.17 Transactions With Affiliates and Employees. Except
as required to be set forth in the SEC Reports, none of the
officers or directors of the Company and, to the knowledge of the
Seller, none of the Affiliates or employees of the Company is presently
a party to any transaction with the Company (other than 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, to the knowledge of the Company, any entity in which any
officer, director, or any such employee has a substantial interest or is
an officer, director, trustee or partner.
Section 3.18 Assets. Except as set forth in the SEC Reports, the
Company has no assets, including, without limitation, goodwill, assets,
real property, tangible personal property, intangible personal property,
rights and benefits under contracts and cash, as to which there will be
no distribution prior to July 31, 2004. All Company leases for real or
personal property are in good standing, valid and effective in
accordance with their respective terms, and there is not under any of
such leases, any existing material default or event of default (or event
which with notice or lapse of time, or both, would constitute a material
default).
Section 3.19 Investment Company/Investment Advisor. The business
of the Company does not require it to be registered as an investment
company or investment advisor, as such terms are defined under the
Investment Company Act and the Investment Advisors Act of 1940.
Section 3.20 Environmental Matters. The Company has complied with
all applicable Environmental Laws (as defined below). There is no
pending or threatened civil or criminal litigation, written notice of
violation, formal administrative proceeding or investigation, inquiry or
information request by any Governmental Entity relating to any
Environmental Law involving the Company.
Section 3.21 Informed Decision. Seller is aware of the Company's
business affairs and financial condition and has reached an informed and
knowledgeable decision to sell the Shares.
Section 3.22 Trading With the Enemy Act; Patriot Act. No sale of
the Company's securities or the Company's use of the proceeds from such
sale has violated the Trading with the Enemy Act, as amended, or any of
the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto. Without limiting the
foregoing, the Company (a) is not a person whose property or interests
in property are blocked pursuant to Section 1 of Executive Order 13224
of September 23, 2001 Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism (66
Fed. Reg. 49079 (2001)) and (b) does not engage in any dealings or
transactions, or be otherwise associated, with any such person. The
Company is in compliance with the Patriot Act of 2001.
Section 3.23 Listing on the OTCBB. The Common Stock has been
approved for listing on the Over -The-Counter Bulletin Board (the
"OTCBB") and the Company has and continues to satisfy all of the
requirements of the OTCBB for such listing and for the trading of its
Common Stock thereunder.
Section 3.24 Consummation of the Merger. Seller acknowledges that
it is the intention of the Purchasers, upon completion of the
transactions contemplated hereby, to cause the Company to consummate the
Merger. Seller further acknowledges that, upon consummation of the
Merger, it is likely that each Share will increase in value, possibly
substantially. Seller has had such opportunity as it desires to ask
Purchasers any questions and receive information concerning the proposed
Merger, including the risks associated therewith, and has received
satisfactory answers to such questions and desires to complete the sale
of the Purchased Shares contemplated under this Agreement.
ARTICLE 4
REPRESENTATIONS OF THE PURCHASERS
The Purchasers each represent and warrant, solely as to itself, to
the Seller, as follows:
Section 4.1 Execution and Delivery. The execution, delivery and
performance by the Purchaser's execution and delivery of this Agreement
is within such Purchaser's powers and does not violate any contractual
restriction contained in any agreement which binds or affects or
purports to bind or affect the Purchaser.
Section 4.2 Binding Effect. This Agreement, when executed and
delivered by the Purchaser shall be irrevocable and will constitute the
legal, valid and binding obligations of the Purchaser enforceable
against the Purchaser in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, moratorium and other laws
of general application affecting enforcement of creditors' rights
generally or general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 4.3 Investment Purpose. The Purchaser represents that it
is purchasing the Shares for its own account, with the intention of
holding the Shares, with no present intention of dividing or allowing
others to participate in this investment or of reselling or otherwise
participating, directly or indirectly, in a distribution of the Shares,
and shall not make any sale, transfer, or pledge thereof without
registration under the Securities Act and any applicable securities laws
of any state unless an exemption from registration is available under
those laws. The Purchased Shares delivered to the Purchaser shall bear
a restrictive legend indicating that they have not been registered under
the Securities Act of 1933 and are "restricted securities" as that term
is defined in Rule 144 under the Act.
Section 4.4 Investment Representation. The Purchaser represents
that it has adequate means of providing for its current needs and has no
need for liquidity in this investment in the Shares. Each Purchaser
represents that it is an "accredited investor" as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act. Each Purchaser
has no reason to anticipate any material change in its financial
condition for the foreseeable future. Each Purchaser is financially
able to bear the economic risk of this investment, including the ability
to hold the Shares indefinitely or to afford a complete loss of its
investment in the Shares.
Section 4.5 Investment Experience. Each Purchaser has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the
Shares.
Section 4.6 Opportunity to Ask Questions. Each Purchaser has had
a full and fair opportunity to make inquiries about the terms and
conditions of this Agreement, to discuss the same and all related
matters with its own independent counsel and its own accountants and tax
advisers. Each Purchaser has been given the opportunity to ask
questions of, and receive answers from Seller concerning the terms and
conditions of this Agreement and to obtain such additional written
information about EMLR to the extent Seller possesses such information
or can acquire it without unreasonable effort or expense.
Notwithstanding the foregoing, each Purchaser has had the opportunity to
conduct its own independent investigation.
Section 4.7 Negative Covenant. Each Purchaser covenants, prior to
the Closing, not to vote in favor of any action, other than the Merger
and all actions in connection therewith (which may or may not include
dilution), which dilutes the share ownership of Seller or effect any
action which materially adversely effects Seller and the Company.
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.1 Public Company Status. The Company shall make any and
all necessary filings under the Exchange Act so that it remains a
reporting company under the Exchange Act and its Common Stock continues
to be a publicly-traded security.
Section 5.2 Listing of Common Stock. The Company shall, to the
best of its ability, cause the Common Stock of EMLR to continue to be
approved for listing on the OTCBB.
Section 5.3 Piggy-Back Registration. If at any time from the date
of this Agreement, the Company shall determine to prepare and file with
the 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 (a "Registration Statement"), other than on Form
S-4 or Form S-8 (each as promulgated under the Securities Act), then the
Company shall send to each Purchaser a written notice of such
determination and, if within fifteen (15) days after the date of such
notice, either Purchasers shall so request in writing, the Company shall
include in such Registration Statement all or any part of such Purchased
Shares. If the Registration Statement is being filed pursuant to a
written agreement obligating the Company to file same (a "Registration
Agreement"), each Purchaser requesting to be included in such
Registration Statement shall be entitled to receive all notices and
documents sent by the Company to the parties whose securities are being
registered pursuant to such Registration Agreement. In the event the
Merger takes place, the Company covenants and agrees to include the
Purchased Shares in that certain Registration Statement to be filed in
connection with the purchase of shares of the Private Company. For a
period of one (1) year from the date of this Agreement, the Purchasers
will not, without the prior written consent of the Company, offer,
pledge, transfer, sell, contract to sell, grant any option for the sale
of, or otherwise dispose of, directly or indirectly the Purchased
Shares.
ARTICLE 6
COVENANTS OF THE PARTIES
The parties hereto agree that:
Section 6.1 Public Announcements. The Seller, the Company and the
Purchasers shall consult with each other before issuing any press
release or making any public statement with respect to this Agreement or
the transactions contemplated hereby and, except as may be required by
applicable law, will not issue any such press release or make any such
public statement prior to such consultation and without the consent of
the other parties.
Section 6.2 Notices of Certain Events. In addition to any other
notice required to be given by the terms of this Agreement, each of the
parties shall promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with
any of the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or
involving or otherwise affecting such party that, if pending on the date
of this Agreement, would have been required to have been disclosed
pursuant to Section 3 or Section 4 (as the case may be) or that relate
to the consummation of the transactions contemplated by this Agreement.
Section 6.3 Access to Information. Following the date of this
Agreement, until consummation of all transactions contemplated hereby,
the Seller and the Company shall give to the Purchasers, their counsel,
financial advisers, auditors and other authorized representatives
reasonable access to the offices, properties, books and records,
financial and other data and information as the Purchasers and their
respective representatives may reasonably request.
Section 6.4 EMLR's Business. EMLR will not, without the prior
written consent of Purchasers, (i) make any material change in the type
or nature of its business, or in the nature of its operations, (ii)
create or suffer to exist any debt, other than that currently shown in
the SEC Reports, (iii) issue any capital stock or (iv) enter into any
new agreements of any kind (other than those contemplated by this
Agreement) or undertake any new obligations or liabilities.
ARTICLE 7
CONDITIONS PRECEDENT
Section 7.1 Conditions of Obligations of the Purchasers. The
obligations of the Purchasers are subject to the satisfaction of the
following conditions, any or all of which may be waived in whole or in
part by each Purchaser, solely as to itself or himself:
(a) Representations and Warranties. Each of the representations
and warranties of the Seller and the Company set forth in this Agreement
shall be true and correct in all material respects as of (1) the date of
this Agreement (except to the extent such representations and warranties
speak as of an earlier date), (2) the date of the Merger and (3) the
Closing Date, as though made on and as of all of such dates.
(b) Compliance Certificate. The President of EMLR shall deliver
to the Purchasers at the Closing a certificate certifying: (i) that
there has been no material adverse change in the business, affairs,
prospects, operations, properties, assets or conditions of the company
since the date of this Agreement; (ii) that attached thereto is a true
and complete copy of EMLR's Articles of Incorporation, as amended, as in
effect at the Closing; (iii) that attached thereto is a true and
complete copy of its By-laws as in effect at the Closing; and (iv) each
of the representations and warranties of the Seller and the Company set
forth in this Agreement are true and correct in all material respects as
of the Closing Date as though made on and as of the Closing Date.
(c) Good Standing Certificate. Sellers. The Company shall have
furnished the Purchasers with good standing and existence certificates
for EMLR in its jurisdiction of formation and such other jurisdictions
as the Purchasers reasonably request.
(d) Certified List of Record Holders. The Purchasers shall have
received a current certified list from the EMLR's transfer agent of the
holders of record of EMLR's Common Stock.
(e) Board of Directors Resolutions. The Purchasers shall have
received executed resolutions of the Board of Directors of EMLR
approving the Merger and the transactions contemplated herein.
(f) Performance. The Seller and the Company shall have performed
and complied with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by
it on or before the Closing, including, but not limited to, execution,
and compliance with all terms and provisions, of the Escrow Agreement.
Section 7.2 Conditions of Obligations of the Seller. The
obligations of the Seller to effect the sale of the Shares are subject
to the following conditions, any or all of which may be waived in whole
or in part by the Purchasers:
(a) Representations and Warranties. Each of the representations
and warranties of the Purchasers set forth in this Agreement shall be
true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and warranties
speak as of an earlier date) as of the Closing Date as though made on
and as of the Closing Date.
(b) Compliance Certificate. The authorized officer of each
Purchaser, if not an individual, and each Purchaser that is an
individual, shall each deliver to the Seller at the Closing a
certificate certifying each of the representations and warranties of
such Purchaser set forth in this Agreement are true and correct in all
material respects as of the Closing Date as though made on and as of the
Closing Date.
(c) Good Standing Certificate. Each Purchaser, if not an
individual, shall have furnished the Seller with good standing and
existence certificates for such Purchaser in its jurisdiction of
incorporation.
(d) Performance. The Purchasers shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it or
him on or before the Closing, including, but not limited to, execution,
and compliance with all terms and provisions of the Escrow Agreement.
ARTICLE 8
TERMINATION
Section 8.1 Termination. This Agreement may be terminated and the
purchase and sale of the Shares may be abandoned at any time prior to
the Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Seller or the Purchasers if the Closing shall
not have occurred on or before July 31, 2004 (unless the failure to
consummate the transactions by such date shall be due to the action or
failure to act of the party seeking to terminate this Agreement or
regulatory delays);
(c) by the Purchasers if (i) Seller shall have failed to comply in
any material respect with any of the covenants, conditions, terms or
agreements contained in this Agreement to be complied with or performed
by Seller; or (ii) any representations and warranties of Seller or the
Company contained in this Agreement shall not have been true when made
or on and as of the Closing Date as if made on and as of Closing Date
(except to the extent it relates to a particular date); or (iii) they
are not satisfied with their due diligence review of the Seller and the
Company; or
(d) by Seller if (i) the Purchasers shall have failed to comply in
any material respect with any of the covenants, conditions, terms or
agreements contained in this Agreement to be complied with or performed
by it; or (ii) any representations and warranties of the Purchasers
contained in this Agreement shall not have been true when made or on and
as of the Closing Date.
Section 8.2 Effect of Failure to Consummate the Merger. The
parties agree that the Shares will be deemed sold and the transactions
contemplated hereby consummated upon the Closing and delivery of the
Purchase Price and Shares to the Escrow Agent pursuant to the Escrow
Agreement. However, the parties further acknowledge that, if the Merger
and funding of Xxxxxx Health Sciences Inc. is not consummated on or
before July 31, 2004, the Escrow Agent shall be instructed, subject to
the terms of the Escrow Agreement, to return the Purchase Price to the
Purchasers and cause the Company to reissue the Shares sold by Seller to
such Seller, rescinding the transactions contemplated hereby unless the
delay is due solely to regulatory issues in which the case the closing
shall be automatically extended for an additional thirty (30) days.
Section 8.3 Effect of Termination. In the event of the
termination of this Agreement pursuant to this Article 8, all further
obligations of the parties under this Agreement shall forthwith be
terminated without any further liability of any party to the other
parties; provided, however, that nothing contained in this Section 8.3
shall relieve any party from liability for any breach of this Agreement.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Notices. All notices, requests and other
communications to any party hereunder shall be in writing and either
delivered personally, telecopied or sent by certified or registered
mail, postage prepaid,
If to the Seller: The Washington Trust
c/o J. Xxxx Xxxxxx, Trustee
Facsimile: 000-000-0000
0000 Xx. Xxxxxxxxxx Xxxx., C-18, Box 222
Greenwood Village, Co. 80121
With a copy to: Xxxxxx Xxxxxxx, P.C.
0000 Xxxxxxx 000, Xxxxx 000-000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
xxxxxxxxxxxxxxx@xxxxx.xxx
If to Purchasers: R&R Biotech Partners, LLC
c/o Rodman & Xxxxxxx Holding, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Facsimile: (000) 000-0000
Turquoise Partners, LLC
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile (000) 000-0000
Chase Financing, Inc.
000 Xxxx Xxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx, President
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
If to the Company: Email Real Xxxxxx.xxx, Inc
00 Xxxxxx Xxxxxx, #X
Xxxxxx Xxxx, XX 00000
Attn: Xxx X'Xxxxx
Facsimile: 000-000-0000
With a copy to: Xxxxxxx Xxxxxxxx, Esq.
Xxxxxx & Xxxx
000 X. Xxx Xxxx Xxxx. Xxxxx 0000
Xx. Xxxxxxxxxx, Xx. 33301
Facsimile: 000-000-0000
or such other address or fax number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such
notices, requests and other communications shall be deemed received on
the date delivered personally or by overnight delivery service or
telecopied or, if mailed, five (5) business days after the date of
mailing if received prior to 5 p.m. in the place of receipt and such day
is a business day in the place of receipt. Otherwise, any such notice,
request or communication shall be deemed not to have been received until
the next succeeding business day in the place of receipt.
Section 9.2 Amendments; No Waivers.
(a) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an
amendment, by the Seller and Purchasers; or in the case of a waiver, by
the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 9.3 Fees and Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
cost or expense.
Section 9.4 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that
Purchasers shall have the right to assign this Agreement to an affiliate
of such Purchaser and no other party hereto may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, but any such transfer or
assignment will not relieve the appropriate party of its obligations
hereunder.
Section 9.5 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York,
without giving effect to the principles of conflicts of law thereof.
Section 9.6 Jurisdiction. Any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby
may be brought in any federal or state court located in the City of New
York, Borough of Manhattan, and each of the parties hereto consents to
the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection which it
may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may
be served on any party anywhere in the world, whether within or without
the jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as provided in
Section 9.1. shall be deemed effective service of process on such party.
Each party hereto (including its affiliates, agents, officers,
directors and employees) irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 9.7 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement shall become effective
when each party hereto has received counterparts hereof signed by all of
the other parties. No provision of this Agreement is intended to confer
upon any Person other than the parties hereto any rights or remedies
under this Agreement.
Section 9.8 Entire Agreement. This Agreement and the attached
Exhibits and Schedules constitute the entire agreement between the
parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 9.9 Captions. The captions are included for convenience
of reference only and shall be ignored in the construction or
interpretation of this Agreement.
Section 9.10 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way
be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any parties. Upon such a determination,
the parties shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in
an acceptable manner in order that the transactions contemplated hereby
are consummated as originally contemplated to the fullest extent
possible.
Section 9.11 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the its terms and that
the parties shall be entitled to specific performance of the terms of
this Agreement in addition to any other remedy to which they are
entitled at law or in equity.
Section 9.12 Definition and Usage.
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person, or
indirectly controlling, controlled by or under common control with such
Person.
"Environmental Law" shall mean any federal, state or local law,
statute, rule or regulation or the common law relating to the
environment or occupational health and safety, including any statute,
regulation, administrative decision or order pertaining to: (i)
treatment, storage, disposal, generation and transportation of
industrial, toxic or hazardous materials or substances or solid or
hazardous waste; (ii) air, water and noise pollution; (iii) groundwater
and soil contamination; (iv) the release or threatened release into the
environment of industrial, toxic or hazardous materials or substances,
or solid or hazardous waste, including emissions, discharges,
injections, spills, escapes or dumping of pollutants, contaminants or
chemicals; (v) the protection of wild life, marine life and wetlands,
including all endangered and threatened species; (vi) storage tanks,
vessels, containers, abandoned or discarded barrels and other closed
receptacles; (vii) health and safety of employees and other persons; and
(viii) manufacturing, processing, using, distributing, treating,
storing, disposing, transporting or handling of materials regulated
under any law as pollutants, contaminants, toxic or hazardous materials
or substances or oil or petroleum products or solid or hazardous waste.
As used above, the terms "release" and "environment" shall have the
meaning set forth in the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (CERCLA).
"Indebtedness" shall mean (a) any liabilities for borrowed money or
amounts owed, (b) all guaranties, endorsements and other contingent
obligations, 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 in the
ordinary course of business, and (c) the present value of any lease
payments under leases required to be capitalized in accordance with
GAAP.
"Material Adverse Effect" means any effect or change that is or
would be materially adverse to the business, operations, assets,
prospects, condition (financial or otherwise) or results of operations
of the Company and any of its subsidiaries, taken as a whole.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality of the foregoing.
"Taxes" means any and all federal, state, local, foreign or other
taxes of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto)
imposed by any taxing authority, including, without limitation, taxes or
other charges on or with respect to income, franchises, windfall or
other profits, gross receipts, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment
compensation, or net worth, and taxes or other charges in the nature of
excise, withholding, ad valorem or value added.
Section 9.13 Survival. The representations and warranties
contained in this Agreement shall survive the Closing and delivery of
the Shares only as against Seller and notwithstanding any provision to
the contrary contained in this Agreement, upon and after the Closing,
any claim by Purchasers for a breach of any representation or warranty
of Seller or the Company contained in this Agreement may be made only
against Seller and Purchasers shall have no claim against the Company
for any such breach.
(REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, each of the following individuals has caused
this Agreement to be signed, and each party that is not an individual
has caused this Agreement to be duly executed under seal by its
respective authorized officers, all as of the day and year first above
written.
SELLER:
THE WASHINGTON TRUST
By:
-------------------------
Name: J. Xxxx Xxxxxx
Title: Trustee
THE COMPANY:
EMAIL REAL XXXXXX.XXX, INC.
By:
-------------------------
Name: Xxx X'Xxxxx
Title: President
PURCHASERS:
R&R BIOTECH PARTNERS, LLC
By:
-------------------------
Name:
Title: President
TURQUOISE PARTNERS, LLC
By:
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
CHASE FINANCING, INC.
By:
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
Schedule 1.1
SELLER: THE WASHINGTON TRUST
Portion of Purchased Shares
and Purchase Price
---------------------------
PURCHASERS: R&R BIOTECH PARTNERS, LLC 8/10
TURQUOISE PARTNERS, LLC 1/10
CHASE FINANCING, INC. 1/10
ESCROW AGENT WIRING INSTRUCTIONS
Xxxxxx & Xxxx. P.A.
IOTA Trust Account
ABA 000000000
Account No. 3200059074
CITIBANK, FSB BR. #95
Xxxxx, XX 00000
FBO: 212015.0001(eMail Real Xxxxxx.xxx)
Schedule 1.2
The "Purchased Shares" shall mean (a) 10 percent of the total
outstanding shares ("Fully-Diluted Shares") of Common Stock of the
Company after the Merger as if all securities convertible into Common
Stock of the Company, including options and warrants, had been
converted, if the Merger is consummated prior to the release of the
Shares by the Escrow Agent pursuant to the Escrow Agreement, and (b) if
the Merger is not consummated prior to the release of the Shares by the
Escrow Agent pursuant to the Escrow Agreement (and Seller has not given
timely notice of rescission to the Escrow Agent), 22,000,000 shares of
Common Stock of the Company.
The "EMLR Shares" shall mean (a) 3 percent of the Fully-Diluted Shares,
but not less than 3,600,000 shares of Common Stock of the Company and
not more than 4,311,384 shares of Common Stock of the Company, if the
Merger is consummated prior to the release of the Shares by the Escrow
Agent pursuant to the Escrow Agreement, and (b) if the Merger is not
consummated prior to the release of the Shares by the Escrow Agent
pursuant to the Escrow Agreement and Seller has not timely notified
Escrow Agent of rescission, 2,996,000 shares of Common Stock of the
Company.
The "Cancelled Shares" shall mean (a) 24,996,000 shares of Common Stock
of the Company minus the Purchased Shares and minus the EMLR Shares, if
the Merger is consummated prior to the release of the Shares by the
Escrow Agent pursuant to the Escrow Agreement, and (b) if the Merger is
not consummated prior to the release of the Shares by the Escrow Agent
pursuant to the Escrow Agreement, 0 shares of Common Stock of the
Company.
EXHIBIT A
Disclosure Schedules
of
The Washington Trust and Email Real Xxxxxx.xxx., Inc.
Attached are the Disclosure Schedules of The Washington Trust ("Seller")
and Email Real Xxxxxx.xxx, Inc., a Colorado corporation ("Company or
EMLR"), referred to the Stock Purchase Agreement dated as of June 17,
2004 (the "Agreement") by and among R & R BioTech Partners, LLC, the
Washington Trust and Email Real Xxxxxx.xxx, Inc. Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the
Agreement.
Matters reflected in these disclosure schedules are not necessarily
limited to the matters required by the Agreement to be disclosed in the
disclosure schedules. Such additional matters are set forth for
informational purposes and do not necessarily include other matters of a
similar nature.
Dated as of June 17, 2004
Section 3.3
Capitalization
1. The Company currently has 100,000,000 shares of common capital
stock,$.001 par value authorized of which 24,996,000 shares are issued
and outstanding and 10,000,000 shares of $.01 par value Preferred
Shares, none of which are issued or outstanding.
Section 3.5
Financial Statements
EMLR's financial statements are true and correct.
The Company is a fully reporting company under Section 12(g) of the
Exchange Act.
Section 3.10
Solvency;Indebtedness
(ii) The Company believes it has sufficient capital to carry on its
business as now contemplated.
The only indebtedness of the Company is its obligations accruing for
legal fees and costs with respect to the merger with Xxxxxx Health
Sciences, Inc.
Section 3.11
No Brokers
Seller has a verbal agreement to pay Xxxxx Brothers a $25,000.00
finder's fee at closing. Xxxxx Brothers has represented it is not a
Broker Dealer or otherwise licensed by the Securities Exchange
Commission or other securities regulatory body. Seller is unaware if
Xxxxx Brothers is otherwise exempt from registration. Active Stealth
LLC, an associate of the Seller, has signed a consulting agreement with
RVH Investments, Inc. which will require the payment, upon closing, of
$38,500.00. The consulting agreement payment is guaranteed by Seller.
Section 3.15
Filings, Consents and Approvals
EMLR is filing an Information Statement pursuant to Section 14(F) of the
Exchange Act and SEC Rule 14F-1, notification of a change in its
officers and directors pursuant to the merger with Xxxxxx.
Section 3.17
Transactions with Affiliates and Employees
At the effective time no contracts, agreements or other arrangements
exist between the Company (EMLR) and any officer, director or affiliate.
Section 3.18
Assets
The Company has no leases and no assets other than cash and the website
which it built for its business and which is no longer operative.
{212015.0001/N0471632_4}
27
