STOCK PURCHASE AGREEMENT
Exhibit
1
THIS STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of March 21, 2007, is made
by and between Getting Ready Corporation, a Delaware corporation (the “Company”), and the
Investors listed on Exhibit A hereto (each, an “Investor” and collectively, the
“Investors”).
RECITALS
A. The Investors desire to acquire from the Company, and the Company desires to issue and sell
to the Investors, in the manner and on the terms and conditions hereinafter set forth, shares of
Common Stock of the Company.
B. In connection with the Investors’ purchase of the Common Stock, the Company and the
Investors desire to establish certain rights and obligations between themselves.
AGREEMENTS
NOW, THEREFORE, in consideration of these premises, the mutual covenants and agreements herein
contained and for other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the Company and the Investors hereby agree as follows:
SECTION 1. DEFINITIONS.
The following terms when used in this Agreement have the following respective meanings:
“Affiliate” means with respect to any Person, any (i) officer, director, partner or
holder of more than 10% of the outstanding shares or equity interests of such Person, (ii) any
Relation of such Person, or (iii) any other Person which directly or indirectly Controls, is
controlled by, or is under common control with such Person. A Person will be deemed to control
another Person if such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the “Controlled” Person, whether through ownership of
voting securities, by contract, or otherwise.
“Business Day” means a day other than Saturday, Sunday or statutory holiday in the
State of New York and in the event that any action to be taken hereunder falls on a day which is
not a Business Day, then such action shall be taken on the next succeeding Business Day.
“Bylaws” means the Bylaws of the Company.
“Certificate of Incorporation” means the Certificate of Incorporation of the Company,
as amended and as on file with the Secretary of State of the State of Delaware on the date of this
Agreement.
“Closing” has the meaning set forth in Section 3.1 hereof.
“Closing Date” has the meaning set forth in Section 3.1 hereof.
“Common Stock” means shares of the common stock, $.001 par value, of the Company.
“Governmental Authority” means the United States, any state or municipality, the
government of any foreign country, any subdivision of any of the foregoing, or any authority,
department, commission, board, bureau, agency, court, or instrumentality of any of the foregoing.
1
“Knowledge” as to the Company means the actual knowledge of the officers of the
Company after due and diligent inquiry of the employees or agents of the Company reasonably
believed to have knowledge of such matters; provided, however, that the knowledge of the officers
of the Company is extremely limited with respect to events that occurred prior to December 4, 2006.
“Lien” means any mortgage, lien, pledge, security interest, easement, conditional sale
or other title retention agreement, or other encumbrance of any kind.
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“1933 Act” means the Securities Act of 1933, as amended.
“Material Adverse Effect” means a change or effect in the condition (financial or
otherwise), properties, assets, liabilities, rights, operations or business of the Company which
change or effect, individually or in the aggregate, could reasonably be expected to be materially
adverse to such condition, properties, assets, liabilities, rights, operations or business.
“Person” means an individual, corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, or Governmental Authority.
“Purchase Price” means the sum of $567,000.
“SEC” means the Securities and Exchange Commission.
“SEC Filings” has the meaning set forth in Section 4.2(d) hereof.
SECTION 2. PURCHASE AND SALE OF COMMON STOCK.
2.1 Issuance and Purchase of Common Stock. At the Closing, based upon the representations,
warranties, covenants and agreements of the parties set forth in this Agreement, the Company shall
issue and sell to the Investors, and the Investors shall purchase from the Company, an aggregate of
9,349,777 shares of the Common Stock to be allocated among the Investors as provided in
Exhibit A attached hereto. At the Closing, the Company will issue and deliver to each of
the Investors a stock certificate registered in the name of the Investor representing the number
of shares of the Common Stock, against payment of the Initial Purchase Price therefore, listed next
to each such Investors name on Exhibit A hereto. The shares of Common Stock issued to the
Investors will, in the aggregate, equal fifty-one percent (51%) of the outstanding capital stock of
the Company on the Closing Date, on a fully-diluted basis, after giving effect to the conversion or
exercise of all convertible instruments and securities.
2.2 Consideration for Common Stock. The Investors shall pay to the Company, on the
Closing Date, the Purchase Price, by wire transfer of immediately available funds to an account
designated in writing by the Company.
SECTION 3. THE CLOSING.
3.1 Closing. The closing of the issuance and sale of the Common Stock pursuant to Section
2.1 hereof and certain of the other transactions contemplated hereby (the “Closing”) will take
place at 9:00 A.M. at the offices of the Company located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx, xx the next business day (or such later date as the parties hereto may agree)
following the satisfaction or waiver of the conditions set forth in Article 6 hereof, (the
“Closing Date”), or at such other time or place as the parties mutually agree.
2
3.2 Deliveries by the Company. Promptly after the Closing, the Company
shall deliver or cause to be delivered to the Investors (in addition to any other items required to
be delivered to the Investors pursuant to any other provision of this Agreement) certificates
representing the shares of Common Stock being issued and sold by the Company to the Investors
pursuant to Section 2.1 hereof, duly recorded on the books of the Company in the names of each of
the Investors as set forth in Exhibit A.
3.3 Deliveries by the Investors. At the Closing, each of the Investors shall deliver or
cause to be delivered to the Company (in addition to any other items required to be delivered to
the Company pursuant to any other provision of this Agreement): payment by wire transfer of
immediately available funds necessary to satisfy each Investor’s obligations to the Company under
Section 2.2 hereof and to insure payment to the Company of the Purchase Price.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
4.1 Representations and Warranties of the Company. In order to induce each of the
Investors to purchase the Common Stock that it is purchasing hereunder, the Company represents and
warrants to the Investors that:
(a) Organization and Standing. The Company is duly incorporated and validly existing
under the laws of the State of Delaware, and has all requisite corporate power and authority to own
or lease its properties and assets and to conduct its business as it is presently being conducted.
The Company does not own any equity interest, directly or indirectly, in any other Person or
business enterprise. The Company is qualified to do business and is in good standing in each
jurisdiction in which the failure to so qualify could reasonably be expected to have a material
adverse effect upon its assets, properties, financial condition, results of operations or business.
(b) Capitalization. At the date of this Agreement, the authorized capital stock of
the Company consists of (i) 499,000,000 shares of Common Stock, of which 8,983,119 shares are
issued and outstanding, and (ii) 1,000,000 shares of Preferred Stock, par value $0.001 per share,
of which no shares are issued and outstanding. The Company has no other equity securities of any
class issued, reserved for issuance or outstanding. There are (x) no outstanding options, offers,
warrants, conversion rights, contracts or other rights to subscribe for or to purchase from the
Company, or agreements obligating the Company to issue, transfer, or sell (whether formal or
informal, written or oral, firm or contingent), shares of capital stock or other securities of the
Company (whether debt, equity, or a combination thereof) or obligating the Company to grant,
extend, or enter into any such agreement and (y) no agreements or other understandings (whether
formal or informal, written or oral, firm or contingent) which require or may require the Company
to repurchase any of its Common Stock. There are no preemptive or similar rights with respect to
the Company’s capital stock. There are no anti-dilution or price adjustment provisions contained
in any security issued by the Company (or in any agreement providing rights to security holders).
The Company is not a party to, and to the Knowledge of the Company no Stockholder is a party to,
any voting agreements, voting trusts, proxies or any other agreements, instruments or
understandings with respect to the voting of any shares of the capital stock of the Company, or any
agreement with respect to the transferability, purchase or redemption of any shares of the capital
stock of the Company other than that certain Put Agreement, dated December 1, 2006 between Xxxxx X.
Xxxxxxx and Xxxxxxx Xxxx. The issue and sale of the Common Stock to the Investors will not
obligate the Company to issue any shares of Common Stock or other securities to any Person (other
than the Investors) and will not result in a right of any holder of Company securities to adjust
the exercise, conversion, exchange or reset price under such securities. The outstanding Common
Stock is all duly and validly authorized and issued, fully paid and nonassessable.
3
(c) Capacity of the Company; Authorization; Execution of Agreements. The Company has
all requisite power, authority, and capacity to enter into this Agreement and to perform the
transactions and obligations to be performed by it hereunder. The execution and delivery of this
Agreement by the Company, and the performance by the Company of the transactions and obligations
contemplated hereby, including, without limitation, the issuance and delivery of the shares of
Common Stock to the Investors hereunder, have been duly authorized by all requisite action of the
Company. This Agreement has been duly executed and delivered by a duly authorized officer of the
Company, and constitutes a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of the United States (both state and federal),
affecting the enforcement of creditors’ rights or remedies in general from time to time in effect
and the exercise by courts of equity powers or their application of principles of public policy.
(d) Status of shares of Common Stock. The Common Stock to be issued and purchased
hereunder, when issued by the Company to the Investors and paid for by the Investors pursuant to
the terms of this Agreement, will (i) be duly authorized, validly issued, fully paid and
nonassessable, (ii) be issued in compliance with all applicable United States federal and state
securities laws, (iii) subject to restrictions under this Agreement, and applicable United States
federal and state securities laws, have the rights and preferences set forth in the Certificate of
Incorporation, and (iv) be free and clear of all Liens.
(e) Conflicts; Defaults. The execution and delivery of this Agreement by the Company
and the performance by the Company of the transactions and obligations contemplated hereby and
thereby to be performed by it will not (i) violate, conflict with, or constitute a default under
any of the terms or provisions of, the Certificate of Incorporation, the Bylaws, or any provisions
of, or result in the acceleration of any obligation under, any Contract, note, debt instrument,
security agreement, or other instrument to which the Company is a party or by which the Company, or
any of its assets is bound; (ii) result in the creation or imposition of any Liens or claims upon
the Company’s assets or upon the Company’s Shares; (iii) constitute a violation of any law,
statute, judgment, decree, order, rule, or regulation of a Governmental Authority applicable to the
Company; or (iv) constitute an event which, after notice or lapse of time or both, would result in
any of the foregoing. The Company is not presently in violation of its Certificate of
Incorporation or Bylaws.
(f) SEC Filings. To the Company’s Knowledge, the SEC Filings, when filed,
complied in all material respects with the requirements of the 1934 Act, and did not, as of the
dates when filed, contain an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading. To
the Company’s Knowledge, the SEC Filings are all of the filings that the Company was required
to file with the SEC during the periods covered thereby and all such filings were made on a timely
basis when due. To the Company’s Knowledge, the financial statements of the Company
included in the SEC Filings complied in all material respects with the rules and regulations of the
SEC with respect thereto as in effect at the time of filing. To the Company’s Knowledge,
such financial statements have been prepared in accordance with GAAP applied on a consistent basis
during the periods covered by such financial statements, 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 as of and for the dates thereof and for the periods indicated,
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. To the Company’s
Knowledge, all material agreements to which the Company is a party or to which the property or
assets of the Company are subject and which are required to be disclosed pursuant to the 1934 Act
are included as part of or specifically identified in the SEC Filings.
4
(g) Material Changes. Since the date of the latest audited financial statements
included within the SEC Filings, except as specifically disclosed in the SEC Filings, (i) there has
been no event that could result in a Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) the $7500 settlement payment previously
disclosed to the Investors, trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP as required to be disclosed in filings made with
the SEC, (iii) the Company has not altered its method of accounting or the identity of its
auditors, except as disclosed in its SEC Filings (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its shareholders or purchased, redeemed or
made any agreements to purchase or redeem any shares of its capital stock, and (v) the Company has
not issued any equity securities to any officer, director or affiliate.
(h) Absence of Litigation. Except as described in the SEC Filings, there is no
action, suit, claim, proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or, to the Knowledge of the
Company, threatened against or affecting the Company.
(i) Brokers, Finders, and Agents. The Company is not, directly or indirectly,
obligated to anyone acting as broker, finder, or in any other similar capacity in connection with
this Agreement or the transactions contemplated hereby. No Person has or, immediately following
the consummation of the transactions contemplated by this Agreement, will have, any right, interest
or valid claim against the Company or the Investors for any commission, fee or other compensation
as a finder or broker in connection with the transactions contemplated by this Agreement, nor are
there any brokers’ or finders’ fees or any payments or promises of payment of similar nature,
however characterized, that have been paid or that are or may become payable in connection with the
transactions contemplated by this Agreement, as a result of any agreement or arrangement made by
the Company.
(j) Application of Takeover Protections. Except as provided in Delaware General
Corporation Law Section 203 (“GCL 203”), there is no control share acquisition, business
combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s Certificate of Incorporation or Bylaws that is or could
become applicable to any of the Investors as a result of the Investors and the Company fulfilling
their obligations or exercising their rights under this Agreement, including without limitation, as
a result of the Company’s issuance of the Common Stock and the Investors’ ownership of the Common
Stock.
(k) Disclosure. All disclosure materials provided to the Investors regarding the
Company, its business and the transactions contemplated hereby, including the Schedules to this
Agreement, furnished by or on behalf of the Company are true and correct in all material respects
and as otherwise contemplated in this Agreement 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 not misleading. No event or circumstance has occurred or information exists with respect
to the Company or its business, properties, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement by the Company but
which has not been so publicly announced or disclosed. The Company acknowledges and agrees that no
Investor makes or has made (i) any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 4.2 or (ii) any statement,
commitment or promise to the Company or any of its representatives which is or was an inducement to
the Company to enter into this Agreement.
4.2 Representations and Warranties of the Investors. Each of the Investors hereby
severally, but not jointly, represents and warrants to the Company that:
5
(a) Investment Intent. The Common Stock to be purchased by the Investor hereunder is
being purchased for its own account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution or public offering thereof within the meaning of the
1933 Act. The Investor understands that the Common Stock has not been registered under the 1933
Act by reason of its issuance in a transaction exempt from the registration and prospectus delivery
requirements of the 1933 Act pursuant to Section 4(2) thereof and/or the provisions of Rule 506 of
Regulation D promulgated thereunder, and under the securities laws of applicable states and agrees
to deliver to the Company, if requested by the Company, an investment letter in customary form.
The Investor further understands that the certificates representing the Common Stock will bear a
legend substantially similar to the following and agrees that it will hold such Common Stock
subject thereto:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER
SAID ACTS AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE AND THE COMPANY SHALL HAVE RECEIVED, AT THE EXPENSE OF THE
HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE COMPANY
(WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY).
(b) Capacity of the Investor; Execution of Agreement. The Investor has all requisite
power, authority, and capacity to enter into this Agreement and to perform the transactions and
obligations to be performed by it hereunder. The execution and delivery of this Agreement, and the
performance by the Investor of the transactions and obligations contemplated hereby have been duly
authorized by all requisite corporate or individual, as the case may be, action of the Investor.
This Agreement has been duly executed and delivered by the Investor and constitutes a valid and
legally binding agreement of the Investor, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws, both state and federal, affecting the enforcement of creditors’ rights or remedies in
general from time to time in effect and the exercise by courts of equity powers or their
application of principles of public policy.
(c) Accredited Investor. The Investor is an “accredited investor” as defined
in Rule 501(a) of Regulation D promulgated under the 1933 Act.
(d) Suitability and Sophistication. The Investor has (i) such knowledge and
experience in financial and business matters that it is capable of independently evaluating the
risks and merits of purchasing the Common Stock; (ii) independently evaluated the risks and merits
of purchasing the Common Stock and has independently determined that the shares of Common Stock
are a suitable investment for it; and (iii) sufficient financial resources to bear the loss of its
entire investment in the Common Stock. The Investor has had an opportunity to review: the
Company’s Annual Report on Form 10-KSB for the year ended September 30, 2006; the Company’s
Quarterly Report on Form 10-QSB for the three months ended December 31, 2006; and other filings
made by the Company under Section 13(a) of the Exchange Act since January 1, 2006 (the “SEC
Filings”). The Investor acknowledges that it has had the opportunity to ask questions and
receive answers concerning the Company and the Common Stock.
(e) Brokers, Finders, and Agents. The Investor is not, directly or indirectly,
obligated to anyone acting as broker, finder, or in any other similar capacity in connection with
this
6
Agreement or the transactions contemplated hereby. No Person has or, immediately following
the consummation of the transactions contemplated by this Agreement, will have, any right, interest
or valid claim against the Company or the Investor for any commission, fee or other compensation as
a finder or broker in connection with the transactions contemplated by this Agreement, nor are
there any brokers’ or finders’ fees or any payments or promises of payment of similar nature,
however characterized, that have been paid or that are or may become payable in connection with the
transactions contemplated by this Agreement, as a result of any agreement or arrangement made by
the Investor.
(f) Nationality; Residence. The Investor is a citizen of the United States of America
and a resident of the state set forth underneath such Investor’s name on Exhibit A attached
to this Agreement.
4.3 Rule 144. Each of the Investors acknowledges that the Common Stock must be held
indefinitely unless subsequently registered under the 1933 Act or unless an exemption from such
registration is available. Each of the Investors is aware of the provisions of Rule 144
promulgated under the 1933 Act which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among other things, the
availability of certain current public information about the Company, the resale occurring not less
than one (1) year after a party has purchased and paid for the security to be sold, the sale being
effected through a “broker’s transaction” or in transactions directly with a “market maker” and the
number of shares being sold during any three-month period not exceeding specified limitations.
SECTION 5. COVENANTS OF THE PARTIES.
5.1 Public Announcements. The parties shall consult with each other before issuing, and
provide each other a reasonable opportunity to review and comment upon, any press release or public
statement with respect to this Agreement and 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.
5.2 Access to Information; Notification of Certain Matters.
(a) From the date hereof to the Closing and subject to applicable law, the Company shall (i)
give to each of the Investors, its counsel, financial advisors, auditors and other authorized
representatives reasonable access to the offices, properties, books and records of the Company, and
(ii) furnish or make available to each of the Investors, its counsel, financial advisors, auditors
and other authorized representatives such financial and operating data and other information as
such Persons may reasonably request.
(b) Each party hereto shall give notice to each other party hereto, as promptly as practicable
after the event giving rise to the requirement of such notice, of:
(i) any communication received by such party from, or given by such party to, any Governmental
Authority in connection with any of the transactions contemplated hereby;
(ii) any notice or other communication from any Person alleging that the consent of such
Person is or may be required in connection with the transactions contemplated by this Agreement;
and
(iii) any actions, suits, claims, investigations or proceedings commenced or, to its
knowledge, threatened against, relating to or involving or otherwise affecting such party or any of
7
its Affiliates that, if pending on the date of this Agreement, would have been required to
have been disclosed, or that relate to the consummation of the transactions contemplated by this
Agreement; provided, however, that the delivery of any notice pursuant to this
Section 5.3(b) shall not limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
5.3 Anti-Takeover Provisions. The Company’s Board of Directors will take such action as
may be necessary to waive the applicability of the provisions of GCL 203 to the transactions
contemplated by this Agreement.
5.4 Interim Operations of the Company. During the period from the date of this Agreement
to the Closing, the Company shall conduct its business only in the ordinary course of business
consistent with past practice, except to the extent otherwise necessary to comply with the
provisions hereof and with applicable laws and regulations. Additionally, during the period from
the date of this Agreement to the Closing, except as required hereby in connection with this
Agreement, the Company shall not, without the prior consent of a majority in interest of the
Investors, (i) amend or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue,
sell or authorize for issuance or sale (including, but not limited to, by way of stock split or
dividend), shares of any class of its securities or enter into any agreements or commitments of any
character obligating it to issue such securities; (iii) declare, set aside, make or pay any
dividend or other distribution (whether in cash, stock or property) with respect to its common
stock, (iv) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital
stock, (v) enter into any material contract or agreement or material transaction or make any
material capital expenditure other than those relating to the transactions contemplated by this
Agreement, (vi) create, incur, assume, maintain or permit to exist any indebtedness except as
otherwise incurred in the ordinary course of business, consistent with past practice, (vii) pay,
discharge or satisfy claims or liabilities (absolute, accrued, contingent or otherwise) other than
in the ordinary course of business consistent with past practice, (viii) cancel any material debts
or waive any material claims or rights, (ix) make any loans, advances or capital contributions to,
or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise
become responsible for the liabilities or other commitments of any other Person, (xi) grant any
increase in the compensation payable or to become payable by the Company to any of its employees,
officers or directors or any increase in any bonus, insurance, pension or other employee benefit
plan, payment or arrangement made to, for or with any such employees, officers or directors, (xii)
enter into any employment contract or grant any severance or termination pay or make any such
payment with or to any officer, director or employee of the Company, (xiii) alter in any material
way the manner of keeping the books, accounts or records of the Company or the accounting practices
therein reflected other than alterations or changes required by GAAP or applicable law, (xiv) enter
into any indemnification, contribution or similar contract pursuant to which the Company may be
required to indemnify any other Person or make contributions to any other Person, (xv) amend or
terminate any existing contracts in any manner that would result in any material liability to the
Company for or on account of such amendment or termination or (xvi) or change any existing or adopt
any new tax accounting principle, method of accounting or tax election except as provided herein or
agreed to in writing by the Investors.
SECTION 6. CONDITIONS.
6.1 Conditions to the Obligations of Each Party. The obligations of the Company and the
Investors to consummate the transactions contemplated by this Agreement are subject to the
satisfaction of the following conditions:
(a) No Governmental Authority of competent authority or jurisdiction shall have issued any
order, injunction or decree, or taken any other action, that is in effect and restrains, enjoins or
otherwise prohibits the consummation of the transactions contemplated hereby; and
8
(b) The parties shall have obtained or made all consents, approvals, actions, orders,
authorizations, registrations, declarations, announcements and filings contemplated by this
Agreement.
6.2 Conditions to the Obligations of the Company. The obligations of the Company to
consummate the transactions contemplated by this Agreement are subject to the satisfaction of the
following further conditions:
(a) The Investors shall have performed in all material respects all of their obligations
hereunder required to be performed by it at or prior to the Closing; and
(b) The representations and warranties of each of the Investors contained in this Agreement
shall have been true and correct when made and at and as of the time of the Closing as if made at
and as of such time (except to the extent any such representation or warranty expressly speaks as
of an earlier date, in which case it shall be true and correct as of such date).
6.3 Conditions to the Obligations of the Investors. The obligations of the Investors to
consummate the transactions contemplated by this Agreement are subject to the satisfaction of the
following further conditions:
(a) The Company shall have performed in all material respects all of its obligations hereunder
required to be performed by it at or prior to the Closing; and
(b) The representations and warranties of the Company contained in this Agreement shall have
been true and correct when made and at and as of the time of the Closing as if made at and as of
such time (except to the extent any such representation or warranty expressly speaks as of an
earlier date, in which case it shall be true and correct as of such date).
SECTION 7. TERMINATION.
7.1 Termination. This Agreement may be terminated at any time prior to the Closing by
written notice by the terminating party to the other party (except if such termination is pursuant
to Section 7.1(a)):
(a) by mutual written agreement of the Investors and the Company;
(b) by either the Investors or the Company, if
(i) the transactions contemplated by this Agreement shall not have been consummated by March
31, 2007 (the “End Date”); provided, however, that the right to terminate
this Agreement under this Section 7.1(b)(i) shall not be available to any party whose breach of any
provision of or whose failure to perform any obligation under this Agreement has been the cause of,
or has resulted in, the failure of the transactions to occur on or before the End Date; or
(ii) a judgment, injunction, order or decree of any Governmental Authority having competent
jurisdiction enjoining the Company or the Investors from consummating the transactions contemplated
by this Agreement is entered and such judgment, injunction, judgment or order shall have become
final and nonappealable and, prior to such termination, the parties shall have used their
respective commercially reasonable efforts to resist, resolve or lift, as applicable, such
judgment, injunction, order or decree; provided, however, that the right to terminate this
Agreement under this Section 7.1(b)(ii) shall not be available to any party whose breach of any
provision of or whose failure to
9
perform any obligation under this Agreement has been the cause of such judgment, injunction,
order or decree.
(c) by the Company:
(i) if a breach of or failure to perform any representation, warranty, covenant or agreement
on the part of the Investors set forth in this Agreement shall have occurred which would cause the
conditions set forth in Sections 6.2(a) or 6.2(b) not to be satisfied, and either such condition
shall be incapable of being satisfied by the End Date or such breach or failure to perform has not
been cured within 10 days after notice of such breach or failure to perform has been given by the
Company to the Investors.
(d) by the Investors:
(i) if a breach of or failure to perform any representation, warranty, covenant or agreement
on the part of the Company set forth in this Agreement shall have occurred which would cause the
conditions set forth in Sections 6.3(a) or 6.3(b) not to be satisfied, and either such condition is
incapable of being satisfied by the End Date or such breach or failure to perform has not been
cured within 10 days after notice of such breach or failure to perform has been given by the
Investors to the Company.
7.2 Effect of Termination. If this Agreement is terminated pursuant to Section 7.1, there
shall be no liability or obligation on the part of the Investors or the Company, or any of their
respective officers, directors, shareholders, agents or Affiliates, except that the provisions of
Section 8 of this Agreement shall remain in full force and effect and survive any termination of
this Agreement and except that, notwithstanding anything to the contrary contained in this
Agreement, neither the Company nor the Investors shall be relieved of or released from any
liabilities or damages arising out of its material breach of or material failure to perform its
obligations under this Agreement.
SECTION 8. MISCELLANEOUS.
8.1 Waivers and Amendments. This Agreement may be amended or modified in whole or in part
only by a writing which makes reference to this Agreement executed by the Investors and the
Company. The obligations of either party hereunder may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the written consent of the
party claimed to have given the waiver; provided, however, that any waiver by any
party of any violation of, breach of, or default under any provision of this Agreement or any other
agreement provided for herein shall not be construed as, or constitute, a continuing waiver of such
provision, or waiver of any other violation of, breach of or default under any other provision of
this Agreement or any other agreement provided for herein.
8.2 Entire Agreement. This Agreement (together with the Schedules and the Exhibits
hereto) and the other agreements and instruments expressly provided for herein, together set forth
the entire understanding of the parties hereto and supersede in their entirety all prior contracts,
agreements, arrangements, communications, discussions, representations, and warranties, whether
oral or written, among the parties with respect to the subject matter hereof.
8.3 Governing Law. This Agreement shall in all respects be governed by and construed in
accordance with the internal substantive laws of the State of Florida without giving effect to the
principles of conflicts of law thereof.
10
8.4 Notices. Any notice, request or other communication required or permitted hereunder
shall be in writing and be deemed to have been duly given (a) when personally delivered or sent by
facsimile transmission (the receipt of which is confirmed in writing), (b) one Business Day after
being sent by a nationally recognized overnight courier service or (c) five Business Days after
being sent by registered or certified mail, return receipt requested, postage prepaid, to the
parties at their respective addresses set forth below.
If to the Company:
|
Getting Ready Corporation | |
| 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | ||
| Xxxxx, Xxxxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxx | ||
If to Investors: |
||
| At the addresses set forth across from each Investor’s name on Exhibit A hereto. | ||
with a copy to:
|
Xxxxxx X. Xxxxx | |
| Suite 1500 | ||
| 0000 Xxxxxxxx Xxxxxxxxx |
||
| Xxxxx, Xxxxxxx 00000 | ||
Any party by written notice to the other may change the address or the persons to whom notices or
copies thereof shall be directed.
8.5 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which together will
constitute one and the same instrument. Any facsimile copy of this Agreement will be deemed an
original for all purposes.
8.6 Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted assigns, except that
the Company may not assign or transfer its rights hereunder without the prior written consent of
the Investors.
8.7 Third Parties. Nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any Person other than the parties hereto and their successors and
assigns any rights or remedies under or by reason of this Agreement.
8.8 Schedules. The Schedules and Exhibit A attached to this Agreement are
incorporated herein and shall be part of this Agreement for all purposes.
8.9 Headings. The headings in this Agreement are solely for convenience of reference and
shall not be given any effect in the construction or interpretation of this Agreement.
8.10 Interpretation. Whenever the context may require, any pronoun used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular form of nouns,
pronouns and verbs shall include the plural and vice versa.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the Company and each of the Investors have executed this Agreement as of
the date first above written.
| The Company: |
||||
| Getting Ready Corporation |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| The Investors: | Frost Gamma Investments Trust |
|||
| By: | /s/ | |||
| Xxxxxxx Xxxxx, M.D., Sole Trustee | ||||
| Xxxx Xxxxx, Ph.X. | ||||
| Xxxxxxxx Xxxxxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxx | ||||
| Xxxxxx Xxxxxxxxxx | ||||
| MZ Trading LLC |
||||
| By: | /s/ | |||
| Xxxx Xxxxxxxxx, Manager | ||||
12
EXHIBIT A
SCHEDULE OF PURCHASERS
SCHEDULE OF PURCHASERS
| Number of Shares of | ||||||||||||
| Common Stock | Aggregate Purchase | |||||||||||
| Name, Address and State of Residence | to be Purchased | Price for Shares | ||||||||||
Frost Gamma Investments Trust 0000 Xxxxxxxx Xxxx, Xxxxx 0000 Xxxxx Xxxxxxx 00000 Attn: Xxxxxxx Xxxxx, M.D., Sole Trustee Fax: (000) 000-0000 |
5,886,897 | $ | 357,000.00 | |||||||||
MZ Trading LLC 000 Xxxxxxxx Xx. Xxx Xxx Xxxxx, XX 00000 Attn: Xxxx Xxxxxxxxx Fax: (000) 000-0000 |
219,860 | $ | 13,333.00 | |||||||||
Xx. Xxxxx X. Xxxx 00 Xxxxxx Xxxxx, Xxx 000 Xxx Xxxxxx, XX 00000 Fax: (000) 000-0000 |
219,876 | $ | 13,334.00 | |||||||||
Xxxx Xxxxx, Ph.D. 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxxx, Xxxxxxx 00000 Fax: (000) 000-0000 |
1,484,092 | $ | 90,000.00 | |||||||||
Xxxxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxxx, Xxxxxxx 00000 Fax: (000) 000-0000 |
659,596 | $ | 40,000.00 | |||||||||
Xxxxxx X. Xxxxx 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxxx, Xxxxxxx 00000 Fax : (000) 000-0000 |
659,596 | $ | 40,000.00 | |||||||||
Xx. Xxxxxx Xxxxxxxxxx 000 Xxxxx Xxxxx Xxxxxxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 |
219,860 | $ | 13,333.00 | |||||||||
13
