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EXHIBIT 10.2
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (the "Agreement") is made and entered
into this ____ day of __________, 2001 by and among BIOMED RESEARCH
TECHNOLOGIES, INC., a Delaware corporation (hereinafter referred to as
"BioMed"), SURE MEDICAL, INCORPORATED, a Nevada corporation (hereinafter
referred to as "Sure"), DR. XXXXXXX XXXXXXXX, the principal shareholder of Sure
through his interest in _____________ ("Xxxxxxxx") and the shareholders of Sure
listed on the counterpart signature pages hereto constituting all of the
shareholders of Sure (hereinafter collectively with Xxxxxxxx referred to as the
"Sure Shareholders").
RECITALS:
A. The Sure Shareholders own all of the issued and outstanding
shares of the capital stock of Sure.
B. BioMed is willing to acquire all of the issued and outstanding
capital stock of Sure, making Sure a wholly-owned subsidiary of BioMed, and the
Sure Shareholders desire to exchange all of their shares of Sure's capital stock
for authorized but unissued shares of Common Stock, par value $.001 per share
(the "Common Stock") of BioMed as hereinafter provided.
C. It is the intention of the parties hereto that: (i) BioMed
shall acquire all of the issued and outstanding capital stock of Sure in
exchange solely for the consideration set forth below (the "Exchange"); and (ii)
the Exchange shall qualify as a transaction in securities exempt from
registration or qualification under the Securities Act of 1933, as amended, and
under the applicable securities laws of each jurisdiction where the Sure
Shareholders reside.
D. It is the intention of the parties that the Exchange qualify
as a "tax-free" transaction within the meaning of Section 368 of the Internal
Revenue Code of 1986.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. PURCHASE OF SHARES
1.1 Acquisition of Shares. BioMed and the Sure Shareholders hereby
agree that the Sure Shareholders shall, on the Closing Date (as hereinafter
defined), exchange an aggregate of 3,230,000 shares of the Common Stock of Sure
which constitute all of the issued and outstanding shares of capital stock of
Sure (the "Sure Shares") and BioMed shall issue to the Sure Shareholders an
aggregate of 3,230,000
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Shares of BioMed's Common Stock (the "BioMed Shares"). The allocation of the
BioMed Shares to the Sure Shareholders is set forth on Exhibit A hereto.
1.2 Delivery of Sure Shares. On the Closing Date, the Sure
Shareholders will deliver to BioMed the certificates representing the Sure
Shares, duly endorsed (or with executed stock powers) so as to make BioMed the
sole owner thereof. Simultaneously, BioMed will deliver certificates
representing the BioMed Shares to the Sure Shareholders.
1.3 Investment Intent. The BioMed Shares have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not be resold
unless the BioMed Shares are registered under the Act or an exemption from such
registration is available. The Sure Shareholders represent and warrant that each
of them is acquiring the BioMed Shares for his, her or its own account, for
investment, and not with a view to the sale or distribution of the BioMed
Shares. Each certificate representing the BioMed Shares will have a legend
thereon incorporating language as follows:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act") or any state
securities laws. The shares have been acquired for investment and may
not be sold or transferred in the absence of an effective Registration
Statement for the shares under the Act unless in the opinion of counsel
satisfactory to the Company, registration is not required under the Act
or any applicable state securities laws."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SURE, XXXXXXXX AND SURE
SHAREHOLDERS
Sure, Xxxxxxxx and the Sure Shareholders hereby represent and warrant
as follows (except that with respect to the Sure Shareholders other than
Xxxxxxxx, such representations and warranties shall be to the best of their
knowledge other than with respect to Section 2.2 below):
2.1 Organization and Good Standing. Sure is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased or
operated and such business is now conducted. Sure is qualified to do business as
a foreign corporation in each jurisdiction, if any, in which its property or
business requires such qualification. Sure does not have any subsidiaries.
2.2 Ownership of Sure Shares and Authorization of Agreement. The
Sure Shareholders represent as to his, her or their respective ownership of Sure
Shares, that he, she or they are the owner of record and beneficially of all of
the shares of capital stock of Sure listed in their respective names on Exhibit
A hereto, all of which shares are free and clear of all rights, claims, liens
and encumbrances, and have not been sold, pledged,
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assigned or otherwise transferred except pursuant to this Agreement. There are
no outstanding subscriptions, rights, options, warrants or other agreements
obligating either Sure or the Sure Shareholders to issue, sell or transfer any
stock or other securities of Sure. The Sure Shareholders have the power to enter
into this Agreement and to carry out the obligations hereunder. This Agreement
has been duly executed by each Sure Shareholder, or its authorized
representative, and constitutes the valid and binding obligation of each Sure
Shareholder and is enforceable against each Sure Shareholder in accordance with
its terms.
2.3 Financial Statements, Books and Records. There has been
previously delivered to BioMed the [audited] balance sheet of Sure as at
____________ (the "Balance Sheet") and the related statement of operations for
the period then ended (collectively the "Financial Statements"). The Financial
Statements fairly represent the financial position of Sure as at such date and
the results of its operations for the period then ended.
2.4 No Material Adverse Changes. Since the date of the Balance
Sheet there has not been:
(i) any material adverse change in the assets,
operations, condition (financial or otherwise) or prospective business of Sure;
(ii) any damage, destruction or loss materially affecting
the assets, prospective business, operations or condition (financial or
otherwise) of Sure, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of Sure's
capital stock;
(iv) any sale of an asset (other than in the ordinary
course of business) or any mortgage or pledge by Sure of any properties or
assets; or
(v) adoption of any pension, profit sharing, retirement,
stock bonus, stock option or similar plan or arrangement.
2.5 Compliance with Laws. Sure has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect the business
of Sure.
2.6 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Charter or By-Laws of
Sure;
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(ii) violate, conflict with or result in the breach of any
of the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which Sure is a party or by or to which it or any of its assets or properties
may be bound or subject;
(iii) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory body against, or
binding upon, Sure, or upon the properties or business of Sure; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a materially adverse effect on the business or operations of Sure.
2.7 Actions and Proceedings. There is no outstanding order,
judgment, injunction, award or decree of any court, governmental or regulatory
body or arbitration tribunal against or involving Sure. There is no action, suit
or claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
bankruptcy, criminal, civil or regulatory proceeding pending or threatened
against or involving Sure or any of its properties, assets or shares of Common
Stock. Except as set forth on Schedule 2.7, there is no fact, event or
circumstances that may give rise to any suit, action, claim, investigation or
proceeding.
2.8 Brokers or Finders. No broker's or finder's fee will be
payable by Sure in connection with the transaction contemplated by this
Agreement, nor will any such fee be incurred as a result of any actions by Sure
or the Sure Shareholders.
2.9 Real Estate. Sure neither owns real property nor is a party to
any leasehold agreement.
2.10 Tangible Assets. Sure has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by Sure, any related capitalized items or other
tangible property material to the business of Sure (the "Tangible Assets"). Sure
holds all rights, title and interest in all the Tangible Assets owned by it on
the Balance Sheet or acquired by it after the date of the Balance Sheet free and
clear of all liens, pledges, mortgages, security interests, conditional sales
contracts or any other encumbrances except as set forth on Schedule 2.10.
2.11 Liabilities. Sure does not have any material direct or
indirect indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, (all of the
foregoing collectively defined to as "Liabilities"), which were not fully,
fairly and adequately reflected on the Balance Sheet. As of the Closing Date,
Sure will not have any Liabilities, other than Liabilities fully and adequately
reflected on the Balance Sheet, except for Liabilities incurred in the ordinary
course of business.
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2.12 Operations of Sure. Except as set forth on Schedule 2.12, from
the date of the Balance Sheet and through the Closing Date hereof Sure has not
and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any material loan or advance to any shareholder,
officer, director, employee, consultant, agent or other representative or made
any other material loan or advance otherwise than in the ordinary course of
business;
(iv) except in the ordinary course of business, incurred
or assumed any material indebtedness or liability (whether or not currently due
and payable);
(v) disposed of any assets of Sure except in the ordinary
course of business; or
(vi) issued any equity securities or rights to acquire
such equity securities.
2.13 Capitalization. The authorized capital stock of Sure consists
of 50,000,000 shares of common stock of which 3,230,000 shares are presently
issued and outstanding. Neither Sure nor the Sure Shareholders have granted,
issued or agreed to grant, issue or make available any warrants, options,
subscription rights or any other commitments of any character relating to the
issued or unissued shares of capital stock of Sure. All of the Sure Shares are
duly authorized and validly issued, fully paid and non-assessable.
2.14 Intellectual Property.
(i) Except to the extent that the inaccuracy of any of
the following (or the circumstances giving rise to such inaccuracy) does not
have or could not reasonably be expected to have a material adverse effect:
(A) Sure owns, or is licensed or otherwise has
the legally enforceable right to use (in each case, clear of any liens or
encumbrances of any kind), all Intellectual Property (as hereinafter defined)
used in or necessary for the conduct of its business as currently conducted;
(B) no claims are pending or, to the best
knowledge of Sure, threatened that Sure or any of its subsidiaries is infringing
on or otherwise violating the rights of any person with regard to any
Intellectual Property used by, owned by, and/or licensed to Sure, and to the
best knowledge of Sure, there are no valid grounds for any such claims;
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(C) to the best knowledge of Sure, no person is
infringing on or otherwise violating any right of Sure with respect to any
Intellectual Property owned by and/or licensed to Sure;
(D) to the best knowledge of Sure, there are no
valid grounds for any claim challenging the ownership or validity of any
Intellectual Property owned by Sure or challenging Sure's license or legally
enforceable right to use any Intellectual Property licensed by it; and
(E) to the best knowledge of Sure, all patents,
registered trademarks, service marks, and copyrights held by Sure are valid and
subsisting.
(ii) For purposes of this Agreement, "Intellectual
Property" means trademarks (registered or unregistered), service marks, brand
names, certification marks, trade dress, assumed names, trade names, and other
indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of any
such registration or application; inventions, discoveries and ideas, whether
patented, patentable, or not in any jurisdiction; trade secrets and confidential
information and rights in any jurisdiction to limit the use or disclosure
thereof by any person; writings and other works of authorship, whether
copyrighted, copyrightable, or not in any jurisdiction; registration or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof; any similar intellectual property or proprietary
rights and computer programs and software (including source code, object code,
and data); licenses, immunities, covenants not to xxx, and the like relating to
the foregoing; and any claims or causes of action arising out of or related to
any infringement or misappropriation of any of the foregoing.
(iii) Schedule 2.14(iii) sets forth a list of all the
Intellectual Property of Sure domain names owned by Sure. Sure has full and
complete ownership of all patents.
2.15 Taxes. Except as set out by attached schedule, all required
tax returns or federal, state, county, municipal, local, foreign and other taxes
and assessments have been properly prepared and filed by Sure for all years for
which such returns are due unless an extension for filing any such return has
been properly prepared and filed. Any and all federal, state, county, municipal,
local, foreign and other taxes, assessments, including any and all interest,
penalties and additions imposed with respect to such amounts have been paid or
provided for. The provisions for federal and state taxes reflected in the Sure
Financial Statements are adequate to cover any such taxes that may be assessed
against Sure in respect of its business and its operations during the periods
covered by the Sure Financial Statements and all prior periods.
2.16 Corporate Authority. Sure has the corporate power to enter
into this Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement by Sure have been duly authorized by its Board of
Directors, and no other
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corporate proceedings on the part of Sure are necessary to approve this
Agreement or the transactions contemplated hereby.
2.17 Full Disclosure. No representation or warranty by Sure or the
Sure Shareholders in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished to BioMed pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to a complete and correct presentation of
all material aspects of the businesses of Sure.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BIOMED
BioMed hereby represents and warrants to the Sure Shareholders as
follows:
3.1 Organization and Good Standing. BioMed is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such business is now conducted. The authorized capital stock of
BioMed consists of 40,000,000 shares of Common Stock, par value $.001 per share,
of which _______ shares are presently issued and outstanding and 10,000,000
share of Preferred Stock, par value $.001 per share, of which no shares have
been issued. BioMed is duly licensed or qualified and in good standing as a
foreign corporation where the character of the properties owned by BioMed or the
nature of the business transacted by it make such license or qualification
necessary.
3.2 The BioMed Shares. The BioMed Shares to be issued to the Sure
Shareholders have been or will have been duly authorized by all necessary
corporate and shareholder actions and, when so issued in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable.
3.3 Financial Statements, Books and Records. The [audited] balance
sheet of BioMed as at ____________, 200___, and statements of operations for the
periods then ended previously delivered to Sure were prepared in accordance with
generally accepted accounting principles applied on a consistent basis with
prior periods, and such financial statements fairly represent the financial
position of BioMed as at such dates and the results of its operations for the
periods then ended. The unaudited balance sheet of BioMed as at ____________,
200____, and statements of operations for the periods then ended previously
delivered to Sure were compiled but were not prepared in accordance with
generally accepted accounting principles applied on a consistent basis with
prior periods. However, such compiled financial statements fairly represent the
financial position of BioMed as at such dates and the results of its operations
for the periods then ended.
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3.4 No Material Adverse Changes. Since ____________, 200___, there
has not been:
(i) any material adverse change in the assets,
operations, condition (financial or otherwise) or prospective business of
BioMed;
(ii) any damage, destruction or loss materially affecting
the assets, prospective business, operations or condition (financial or
otherwise) of BioMed, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of
BioMed's capital stock;
(iv) any sale of an asset (other than in the ordinary
course of business) or any mortgage or pledge by BioMed of any properties or
assets; or
(v) adoption of any pension, profit sharing, retirement,
stock bonus, stock option or similar plan or arrangement.
3.5 Compliance with Laws. BioMed has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to their businesses which,
if not complied with, would materially and adversely affect the business of
BioMed or the trading market for the shares of BioMed's Common Stock.
3.6 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of
Incorporation or By-Laws of BioMed;
(ii) violate, conflict with or result in the breach of any
of the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which BioMed is a party or by or to which it or any of its assets or properties
may be bound or subject;
(iii) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory body against, or
binding upon, BioMed or upon the securities properties or business of BioMed; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein.
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3.7 Actions and Proceedings. There is no outstanding order,
judgment, injunction, award or decree of any court, governmental or regulatory
body or arbitration tribunal against or involving BioMed. There is no action,
suit or claim or legal, administrative or arbitral proceeding or (whether or not
the defense thereof or liabilities in respect thereof are covered by insurance)
bankruptcy, criminal, civil or regulatory proceeding pending or threatened
against or involving BioMed or any of its properties or assets.
3.8 Brokers or Finders. No broker's or finder's fee will be
payable by BioMed in connection with the transaction contemplated by this
Agreement, nor will any such fee be incurred as a result of any actions by
BioMed.
3.9 Liabilities. BioMed does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
November 30, 1997 Balance Sheet. As of the Closing Date, BioMed will not have
any Liabilities, other than Liabilities fully and adequately reflected on the
____________, 200___ Balance Sheet, except for Liabilities incurred in the
ordinary course of business.
3.10 Operations of BioMed. Except as set forth on Schedule 3.10,
since ___________, 200____, and through the Closing Date hereof, BioMed has not
and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred
or assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of BioMed except in the
ordinary course of business; or
(vi) issued any equity securities or rights to acquire
such equity securities except as contemplated by the Stock Purchase Agreement.
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3.11 Authority to Execute and Perform Agreements. BioMed has the
full legal right and power and all authority and approval required to enter
into, execute and deliver this Agreement and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of BioMed enforceable in accordance with its terms,
except as may be limited by bankruptcy, moratorium, insolvency or other similar
laws generally affecting the enforcement of creditors' rights. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and the performance by BioMed of this Agreement, in accordance with its
respective terms and conditions will not:
(i) require the approval or consent of any governmental
or regulatory body, the shareholders of BioMed, or the approval or consent of
any other person;
(ii) conflict with or result in any breach or violation of
any of the terms and conditions of, or constitute (or with any notice or lapse
of time or both would constitute) a default under, any order, judgment or decree
applicable to BioMed, or any instrument, contract or other agreement to which
BioMed is a party or by or to which BioMed is bound or subject; or
(iii) result in the creation of any lien or other
encumbrance on the assets or properties of BioMed.
3.12 Full Disclosure. No representation or warranty by BioMed in
this Agreement or in any document or schedule to be delivered by it pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished to Sure or the Sure Shareholders pursuant hereto or in connection with
the execution or performance of this Agreement contains or will contain any
untrue statement of a material fact or omits or will omit to state any fact
necessary to make any statement herein or therein not materially misleading or
necessary to a complete and correct presentation of all material aspects of the
business of BioMed.
SECTION 4. COVENANTS
4.1 Corporate Examinations and Investigations. Prior to the
Closing Date, the parties acknowledge that they have been entitled, through
their employees and representatives, to make such investigation and verification
of the assets, properties, business and operations, books, records and financial
condition of the other, including communications with suppliers, vendors and
customers, as they each may reasonably require. No investigation by a party
hereto shall, however, diminish or waive in any way any of the representations,
warranties, covenants or agreements of the other party under this Agreement.
Consummation of this Agreement shall be subject to the fulfillment of due
diligence procedures to the reasonable satisfaction of each of the parties
hereto and their respective counsel.
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4.2 Expenses. Each party hereto agrees to pay its own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
4.3 Further Assurances. The parties shall execute such documents
and other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing, including, without limitation, the
execution and delivery of any documents or other papers, the execution and
delivery of which are necessary or appropriate to the Closing.
4.4 Confidentiality. In the event the transactions contemplated by
this Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith;
provided, however, such obligation shall not apply to information which:
(i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge
(except due to the action of the receiving party); or
(iii) the receiving party had within its possession at the
time of disclosure.
4.5 Stock Certificates and Consideration. At the Closing, the Sure
Shareholders shall have delivered the certificates representing the Sure Shares
duly endorsed (or with executed stock powers) so as to make BioMed the sole
owner thereof. At such Closing, BioMed shall issue to the Sure Shareholders the
BioMed Shares as provided herein.
4.6 Management of BioMed. On the Closing Date, the present
officers and directors of BioMed (and any other persons) shall resign as
officers and directors of BioMed and the directors and officers designated by
the Sure Shareholders shall be elected by BioMed.
SECTION 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF BIOMED
Notwithstanding any right of Sure and the Sure Shareholders fully to
investigate the affairs of BioMed, Sure and the Sure Shareholders shall have the
right to rely fully upon the representations, warranties, covenants and
agreements of BioMed contained in this Agreement or in any document delivered by
BioMed or any of its representatives, in connection with the transactions
contemplated by this Agreement. All such representations, warranties, covenants
and agreements shall survive the execution and
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delivery hereof and the Closing Date hereunder for twenty-four (24) months
following the Closing.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE SURE SHAREHOLDERS
Notwithstanding any right of BioMed fully to investigate the affairs of
Sure, BioMed has the right to rely fully upon the representations, warranties,
covenants and agreements of Sure and the Sure Shareholders contained in this
Agreement or in any document delivered to BioMed by the latter or any of their
representatives in connection with the transactions contemplated by this
Agreement. All such representations, warranties, covenants and agreements shall
survive the execution and delivery hereof and the Closing Date hereunder for
twenty-four (24) months following the Closing.
SECTION 7. INDEMNIFICATION
7.1 Obligation of BioMed to Indemnify. Subject to the limitations
on the survival of representations and warranties contained in Section 5, BioMed
hereby agrees to indemnify, defend and hold harmless Sure and the Sure
Shareholders from and against any losses, liabilities, damages, deficiencies,
costs or expenses (including interest, penalties and reasonable attorneys' fees
and disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of BioMed contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement.
7.2 Obligation of Sure and the Sure Shareholders to Indemnify.
Subject to the limitations on the survival of representations and warranties
contained in Section 6, Sure and the Sure Shareholders agree to indemnify,
defend and hold harmless BioMed to the extent provided for herein, from and
against any Loss, based upon, arising out of or otherwise due to any inaccuracy
in or any breach of any representation, warranty, covenant or agreement made by
any of them and contained in this Agreement or in any document or other writing
delivered pursuant to this Agreement.
SECTION 8. THE CLOSING
The Closing shall take place simultaneously with the execution hereof.
At the Closing, the parties shall provide each other with such documents as may
be necessary or appropriate and customary in transactions of this sort in order
to consummate the transactions contemplated hereby including evidence of due
authorization of the Agreement and the transactions contemplated hereby.
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SECTION 9. MISCELLANEOUS
9.1 Waivers. The waiver of a breach of this Agreement or the
failure of any party hereto to exercise any right under this Agreement shall in
no event constitute waiver as to any future breach whether similar or dissimilar
in nature or as to the exercise of any further right under this Agreement.
9.2 Amendment. This Agreement may be amended or modified only by
an instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
9.3 Assignment. This Agreement is not assignable except by
operation of law.
9.4 Notices. Until otherwise specified in writing, the mailing
addresses of both parties of this Agreement shall be as follows:
SURE: SURE MEDICAL INCORPORATED
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SURE SHAREHOLDERS: C/O [INSERT]
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BIOMED: BIOMED RESEARCH TECHNOLOGIES, INC.
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Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
9.5 Governing Law. This Agreement shall be construed, and the
legal relations be the parties determined, in accordance with the laws of the
State of Florida, thereby precluding any choice of law rules which may direct
the application of the laws of any other jurisdiction.
9.6 Publicity. No publicity release or announcement concerning
this Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other party.
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9.7 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase and issuance of the
Sure Shares and the BioMed Shares and related transactions, and supersede all
prior agreements, written or oral, with respect thereto.
9.8 Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
9.9 Severability of Provisions. The invalidity or unenforceability
of any term, phrase, clause, paragraph, restriction, covenant, agreement or
other provision of this Agreement shall in no way affect the validity or
enforcement of any other provision or any part thereof.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
BIOMED RESEARCH TECHNOLOGIES, INC.
By:
---------------------------------
, President
-----------------
SURE MEDICAL INCORPORATED
By:
---------------------------------
, President
-----------------
SHAREHOLDERS: [TO BE INSERTED]
-------------------------------------
Dr. Xxxxxxx Xxxxxxxx
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
15
16
EXHIBIT A
EXCHANGE WITH SURE MEDICAL INCORPORATED
Shares of Shares of
Name of Sure to be BioMed to
Shareholder Exchanged be Received
----------- --------- -----------
Grand Total
=========
