EXHIBIT 10.6
FORM OF STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT
BETWEEN
XXXXXXXX-BIOPHILE COMPANIES
AND
BRAMPTON CREST HOLDINGS, LLC
AND
XXXXXXX X. XXXXXXX
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered by and
among Xxxxxxxx-Biophile Companies, a corporation organized and existing under
the laws of the State of Nevada ("Ham-Bio" or the "Company") and Xxxxxxx X.
Xxxxxxx and Brampton Crest Holdings, LLC, a Florida limited liability company
and any affiliated entities ("Brampton" or the "Purchasers")
PRELIMINARY STATEMENT:
WHEREAS, the parties intend to memorialize the transfer of a controlling
interest in Ham-Bio to the Purchasers; and
WHEREAS, the Company, either directly or indirectly, wished to transfer or
issue shares of common stock of the Company such that control of Ham-Bio shall
be with the Purchaser and issue Warrants to Purchase Common Stock of the
Company, in exchange for certain consideration as described herein; and
WHEREAS, Brampton desires to purchase such shares of common stock of the
Company such that control of Ham-Bio shall be with the Purchaser and purchase
Warrants to Purchase Common Stock of the Company upon the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
SALE AND PURCHASE OF HAM-BIO'S COMMON STOCK
AND PURCHASE PRICE
SECTION 1.1 SALE OF HAM-BIO STOCK. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with applicable law,
at the Closing on the Closing Date (as those terms are defined in Section 2.1
hereof), the Company shall sell, assign, transfer, convey and deliver to
Purchaser, and Purchaser agrees to purchase and acquire shares of common stock
of the Company and the Company shall issue Warrants to Purchase Common Stock of
the Company as described herein.
SECTION 1.2 BANKRUPTCY. The Company will cause the dismissal of the Chapter
11 status. The Plan submitted to the Court for the Bankruptcy shall include a
provision that provides for the issuance to Brampton or individuals or entities
designated by Brampton to be granted an aggregate of forty million (40,000,000)
shares of common stock expressly designated by the Court as free trading (the
"Ham-Bio Stock"). The forty million (40,000,000) shares of common stock shall
represent not less than 96% of the issued and outstanding shares of the common
stock of Ham-Bio, fully diluted (excluding the issuance of the warrants herein)
as of the Closing. In the case that the shares represent less than 96% of the
issued and outstanding shares of the common stock of Ham-Bio, fully diluted
(excluding the issuance of the warrants herein) as of the Closing, the number of
shares issued shall be increased to bring the total to 96%.
SECTION 1.3 WARRANTS The Company shall issue forty million (40,000,000)
warrants to purchase shares of common stock for up to three years from the date
of issuance to Brampton or individuals or entities designated by Brampton such
that one Warrant shall be exercisable for one shares of common stock. The
exercise price of the warrant will be $0.001 cent per share.
SECTION 1.4 ADDITIONAL SHARES The Company or its shareholders shall cause
to be transferred to Brampton or individuals or entities designated by Brampton
Four Hundred Thousand (400,000) shares of common stock, such shares to be aged
for a minimum of over one year.
SECTION 1.5 PURCHASE PRICE. The purchase price (the "Purchase Price") to be
paid by the Purchaser to the for Ham-Bio Stock is Fifty Thousand Dollars
($50,000) to be disbursed after the Closing (as defined herein) and to be used
expressly for satisfaction of the outstanding debts of the Company. Such
purchase price shall be reserved for the outstanding debts of the Company by
Brampton. Any liabilities arising prior to the Closing (as defined herein) shall
be the responsibility of Xxxxxxx X. Xxxxxxx.
ARTICLE II
CLOSING DATE AND DELIVERIES AT CLOSING
SECTION 2.1 CLOSING DATE The closing of the transactions contemplated by
this Agreement (the "Closing"), unless expressly determined herein, shall be
held at the offices of Xxxxxx X. Emas at 10:30 A.M. local time, within five (5)
days of the Effective Date (as defined in Section 6.5), or on such other date
and at such other place as may be mutually agreed by the parties, including
closing by facsimile with originals to follow. The date of the Closing is
sometimes referred to herein as the "Closing Date." If payment pursuant to
Section 1.5 is not reserved or the provisions of any of Section 1.2 through 1.4
or pursuant to Section 2.2 is not made, then either party may deem this
Agreement null and void, effective immediately
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SECTION 2.2 DELIVERIES BY HAM-BIO. In addition to and without limiting any
other provision of this Agreement, Ham-Bio agrees to deliver, or cause to be
delivered, to Purchaser, at or prior to Closing, the following:
(a) A Bankruptcy Plan ratified by the Bankruptcy Court granting the
Ham-Bio Stock in the form required pursuant to Section 1.2 herein;
(b) The Ham-Bio Stock;
(c) The Warrants required by Section 1.3; and
(d) The Additional Shares required by Section 1.4; and
(e) All corporate and other records of Ham-Bio held by Xxxxxxx X. Xxxxxxx
and the Company including but not limited to, minute books, stock
books and registers, books of account, leases and contracts; and
(f) An Assignment and Assumption Agreement, requiring Xxxxxxx X. Xxxxxxx
to retain responsibility for all liabilities of the Company incurred
by the Company prior to the Closing, except for the initial
liabilities of the Company incurred by the Company up to $50,000; and
(g) Confirmation that the reverse stock split has been finalized; and
(h) Such other documents or certificates as shall be reasonably requested
by the Purchaser or its counsel.
SECTION 2.3 DELIVERIES BY PURCHASER. In addition to and without limiting
any other provision of this Agreement, the Purchaser agrees to deliver, or cause
to be delivered, to the Company and Xxxxxxx X. Xxxxxxx, at or prior to Closing,
the following:
(a) The Purchase Price required to be reserved on or before Closing
pursuant to Section 1.2 hereof; and
(b) Such other documents or certificates as shall be reasonably requested
by the Company and Xxxxxxx X. Xxxxxxx or their respective counsel.
SECTION 2.4 FURTHER ASSURANCES. The Company and Xxxxxxx X. Xxxxxxx and the
Purchaser shall, upon request, on or after the Closing Date, cooperate with each
other by furnishing any additional information, executing and delivering any
additional documents and/or other instruments and doing any and all such things
as may be reasonably required by the parties or their counsel to consummate or
otherwise implement the transactions contemplated by this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HAM-BIO
AND XXXXXXX X. XXXXXXX
The Company and Xxxxxxx X. Xxxxxxx jointly and severally represent and
warrant to Purchaser (which warranties and representations shall survive the
Closing regardless of what examinations, inspections, audits and other
investigations the Purchaser has heretofore made or may hereinafter make with
respect to such warranties and representations) as follows:
SECTION 3.1 ORGANIZATION AND QUALIFICATION. Ham-Bio is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, and has the requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as it is now being conducted
and is duly qualified to do business in any other jurisdiction by virtue of the
nature of the businesses conducted by it or the ownership or leasing of its
properties, except where the failure to be so qualified will not, when taken
together with all other such failures, have a material adverse effect on the
business, operations, properties, assets, financial condition or results of
operation of Ham-Bio and its subsidiaries taken as a whole. (Any such material
adverse effect being hereinafter referred to as "Company Material Adverse
Effect").
SECTION 3.2 ARTICLES OF INCORPORATION AND BY-LAWs. The complete and correct
copies of Ham-Bio's Articles of Incorporation and By-Laws, as amended or
restated to date provided to Purchaser are a complete and correct copy of such
document as in effect on the date hereof and as of the Closing Date.
SECTION 3.3 CAPITALIZATION. The authorized capital stock of Ham-Bio
consists of 60,000,000 shares of common stock, no par value, of which 15,000,000
is issued and outstanding. All shares of capital stock have been duly authorized
and are validly issued, and are fully paid and no assessable, and free of
preemptive rights. All shares of capital stock to be issued hereunder will, once
issued, be duly authorized and are validly issued, and are fully paid and no
assessable, and free of preemptive rights.
SECTION 3.4 AUTHORITY. Ham-Bio has all requisite corporate power and
authority, and Xxxxxxx X. Xxxxxxx has full power, to execute and deliver this
Agreement, to perform his obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Ham-Bio and Xxxxxxx X. Xxxxxxx and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and no other corporate proceedings on the part of Ham-Bio is necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
except as disclosed in this Agreement. This Agreement has been duly executed and
delivered by Ham-Bio and Xxxxxxx X. Xxxxxxx and constitutes the legal, valid and
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binding obligation of Ham-Bio and Xxxxxxx X. Xxxxxxx enforceable against Ham-Bio
and Xxxxxxx X. Xxxxxxx in accordance with its terms.
SECTION 3.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by Ham-Bio and Xxxxxxx X. Xxxxxxx does not, and the
performance by Ham-Bio and Xxxxxxx X. Xxxxxxx of their respective obligations
hereunder will not: (i) conflict with or violate the Articles of Incorporation
or By-Laws of Ham-Bio; (ii) conflict with, breach or violate any federal, state,
foreign or local law, statute, ordinance, rule, regulation, order, judgment or
decree (collectively, "Laws") in effect as of the date of this Agreement and
applicable to Ham-Bio and Xxxxxxx X. Xxxxxxx ; or (iii) result in any breach of,
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, give to any other entity any right of
termination, amendment, acceleration or cancellation of, require payment under,
or result in the creation of a lien or encumbrance on any of the properties or
assets of Ham-Bio pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Ham-Bio is a party or by Ham-Bio or any of its properties or assets is
bound. Excluding from the foregoing are such violations, conflicts, breaches,
defaults, terminations, accelerations, creations of liens, or incumbency that
would not, in the aggregate, have a Company Material Adverse Effect.
SECTION 3.6 COMPLIANCE WITH APPLICABLE LAWS. Ham-Bio is not in violation
of, or, to the knowledge of Ham-Bio or Xxxxxxx X. Xxxxxxx is under investigation
with respect to or has been given notice or has been charged with the violation
of any Law of a governmental agency, except for violations which individually or
in the aggregate do not have a Company Material Adverse Effect.
SECTION 3.7 BROKERS. Except for two finders, of which the fees shall be the
responsibility of Brampton following the Closing and provided this Agreement is
not terminated prior to the Closing, no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Ham-Bio or Xxxxxxx X. Xxxxxxx .
SECTION 3.8 LITIGATION. To the knowledge of Ham-Bio and Xxxxxxx X. Xxxxxxx,
no litigation, claim, or other proceeding before any court or governmental
agency is pending or threatened against Ham-Bio.
SECTION 3.9 FULL DISCLOSURE. No representation or warranty made by Ham-Bio
or Xxxxxxx X. Xxxxxxx in this Agreement and no certificate or document furnished
or to be furnished to the Purchaser pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein not
misleading.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANT OF THE PURCHASER
The Purchaser represents and warrants to Xxxxxxx X. Xxxxxxx (which
warranties and representations shall survive the Closing regardless of what
examinations, inspections, audits and other investigations Xxxxxxx X. Xxxxxxx
has heretofore made or may hereinafter make with respect to such warranties and
representations) as follows:
SECTION 4.1 ORGANIZATION AND QUALIFICATION. The Purchaser is duly
organized, validly existing and in good standing under the laws of the Province
or State of Incorporation, and has the requisite corporate power and authority
to own, lease and operate its properties and to carry on its business as it is
now being conducted.
SECTION 4.2 AUTHORITY. The Purchaser has all requisite corporate power and
authority to execute and deliver this Agreement, to perform the obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by the Purchaser and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action and no other corporate proceedings on the part of the Purchaser
is necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Purchaser and constitutes the legal, valid and binding obligation of Purchaser
enforceable against the Purchaser in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting the enforcement of creditors' rights generally and general
principles of equity.
SECTION 4.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by the Purchaser does not, and the performance by the
Purchaser of its obligations hereunder will not: (i) conflict with or violate
the Articles of Organization or Operating Agreement of the Purchaser; or (ii)
conflict with, breach or violate any Laws in effect as of the date of this
Agreement and applicable to the Purchaser.
SECTION 4.4 SUCCESSORS, ASSIGNS AND DESIGNEES. Purchaser makes no
representations or warranties about any of its stockholders, successors, assigns
and/or designees who may receive or become the beneficiary of any of the rights
and/or obligations set forth hereunder.
SECTION 4.5 BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Purchaser.
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SECTION 4.6 FULL DISCLOSURE. No representation or warranty made by the
Purchaser in this Agreement and no certificate or document furnished or to be
furnished to Ham-Bio or Xxxxxxx X. Xxxxxxx pursuant to this Agreement contains
or will contain any untrue statement of a material fact, or omits or will omit
to state a material fact necessary to make the statements contained herein or
therein not misleading.
SECTION 4.7 POST-CLOSING COVENANT. The Purchaser agrees that the assets and
liabilities of Ham-Bio's business as it exists now and as it will exist
(specifically excluding any business and cash integrated into the Company by the
Purchaser, which includes the purchase price of the Warrants herein) will be
exchanged for the shares of a newly formed subsidiary of Ham-Bio. This will be
accomplished under a bulk sale filing in Nevada, so as to complete the transfer
of both assets and liabilities to a wholly owned subsidiary. In addition, the
management of Ham-Bio, as it currently exists, shall be the management of
subsidiary. The formation of the subsidiary shall take place within sixty (60)
days of the Closing so that the subsidiary will have the business of the Company
when all bulk sales notices are completed. At any time after the transfer of
assets and liabilities to the Subsidiary, the Board of Directors of Ham-Bio
shall have the right, but not the duty, to cause a complete severance of the
Company from the subsidiary. At such time, the Board of Directors of Ham-Bio
shall deliver the shares of common stock of the subsidiary it has been holding,
pro rata to the owners of record of Ham-Bio prior to the Effective Date as a
dividend. Ham-Bio shall have the right to the benefits of any NOL at that time
unless other provisions of this agreement are met.
The consequence of the "Termination of Subsidiary Status" is that the current
business of Ham-Bio shall be in a sole and separate entity, controlled by the
current management of the current business of Ham-Bio, for the benefit of the
current shareholders of Ham-Bio until such shareholders take their shares upon
the termination of subsidiary status.
If Ham-Bio chooses to use the NOL arising from the current business of the
Company, it shall compensate the subsidiary with an additional equity interest
in Ham-Bio, granted up to a maximum of 5% of the issued and outstanding common
stock of Ham-Bio as of the date of termination of the subsidiary status, and
based on the value received by Ham-Bio of the NOL.
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ARTICLE V
CONDITIONS PRECEDENT TO HAM-BIO
AND XXXXXXX X. XXXXXXX`s OBLIGATIONS
The obligation of Ham-Bio and Xxxxxxx X. Xxxxxxx to consummate the
transactions contemplated hereby shall be subject to the fulfillment, on or
prior to Closing Date, of the following conditions:
SECTION 5.1 NO TERMINATION. This Agreement shall not have been terminated
pursuant to Article 7 hereof.
SECTION 5.2 REPRESENTATIONS TRUE AND CORRECT. The representations and
warranties of the Purchaser contained in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on as of the Closing Date.
SECTION 5.3 COMPLIANCE WITH COVENANTS. Purchaser shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied by it prior to or at the
Closing Date.
SECTION 5.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or
proceeding shall be pending by any public authority or individual or entity
before any court or administrative body to restrain, enjoin, or otherwise
prevent the consummation of this Agreement or the transactions contemplated
hereby or to recover any damages or obtain other relief as a result of the
transactions proposed hereby.
ARTICLE VI
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
The obligation of the Purchasers to consummate the transactions
contemplated hereby shall be subject to the fulfillment, on or prior to Closing
Date unless specified otherwise, of the following conditions:
SECTION 6.1 NO TERMINATION. This Agreement shall not have been terminated
pursuant to Article 7 hereof.
SECTION 6.2 REPRESENTATIONS TRUE AND CORRECT. The representations and
warranties of Ham-Bio and Xxxxxxx X. Xxxxxxx contained in this Agreement shall
be true and correct in all material respects on and as of the Closing Date with
the same force and effect as if made on as of the Closing Date.
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SECTION 6.3 COMPLIANCE WITH COVENANTS. Ham-Bio and Xxxxxxx X. Xxxxxxx shall
have performed and complied in all material respects with all covenants,
agreements, and conditions required by this Agreement to be performed or
complied by it prior to or at the Closing Date.
SECTION 6.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or
proceeding shall be pending by any public authority or individual or entity
before any court or administrative body to restrain, enjoin, or otherwise
prevent the consummation of this Agreement or the transactions contemplated
hereby or to recover any damages or obtain other relief as a result of the
transactions proposed hereby.
SECTION 6.5 ADDITIONAL ACTS BY THE HAM-BIO PRIOR TO THE CLOSING DATE. Prior
to the Closing Date, Ham-Bio and Xxxxxxx X. Xxxxxxx shall have satisfied and
delivered all their obligations pursuant to Section 2.2 herein. The date upon
which satisfaction of the above is acknowledged by the Purchaser shall be the
"Effective Date". Ham-Bio and Xxxxxxx X. Xxxxxxx must comply with all the
obligations pursuant to Section 2.2 herein; substantial compliance is not
acceptable and Purchaser shall not be liable for any obligation to Ham-Bio and
Xxxxxxx X. Xxxxxxx in the case of less than full and complete compliance.
In addition, Ham-Bio shall have completed a one for ten reverse stock split
(resulting in approximately 1,600,000 share of common stock issued and
outstanding), the cost and expense of which shall be borne by Xxxxxxx X.
Xxxxxxx. In the event that this Agreement is terminated, Ham-Bio and Xxxxxxx X.
Xxxxxxx agree and acknowledge that the Purchaser shall have no liability or
obligations as a result of the reverse stock split.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1 TERMINATION. This Agreement may be terminated at any time prior
to the Effective Time:
(a) by mutual written consent of Purchaser and Xxxxxxx X. Xxxxxxx ;
(b) by the Purchaser upon a material breach of any representation,
warranty, covenant or agreement on the part of the Purchaser set forth
in this Agreement, or the Purchaser upon a material breach of any
representation, warranty, covenant or agreement on the part of Ham-Bio
or Xxxxxxx X. Xxxxxxx set forth in this Agreement, or if any
representation or warranty of Ham-Bio or Xxxxxxx X. Xxxxxxx or
Purchaser, respectively, shall have become untrue, in either case such
that any of the conditions set forth in Article V or Article VI hereof
would not be satisfied (a "Terminating Breach"), and such breach
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shall, if capable of cure, not have been cured within ten (10) days
after receipt by the party in breach of a notice from the
non-breaching party setting forth in detail the nature of such breach;
or
(c) by the Purchaser, if the Effective Date is after October 15, 2003.
SECTION 7.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to Section 7.1 hereof, there shall be no liability on the
party of Ham-Bio, Xxxxxxx X. Xxxxxxx or Purchaser or any of their respective
officers, directors, agents or other representatives and all rights and
obligations of any party hereto shall cease, except as expressed herein.
SECTION 7.3 AMENDMENT. This Agreement may be amended by the parties hereto
any time prior to the Closing Date by an instrument in writing signed by the
parties hereto.
SECTION 7.4 WAIVER. At any time prior to the Closing Date, Ham-Bio or the
Purchaser, as appropriate, may: (a) extend the time for the performance of any
of the obligations or other acts of other party or; (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto which have been made to it or them; or (c) waive
compliance with any of the agreements or conditions contained herein for its or
their benefit. Any such extension or waiver shall be valid only if set forth in
an instrument in writing signed by the party or parties to be bound hereby.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 TRANSACTION COSTS. Except as otherwise provided herein, each of
the parties shall pay all of his or its costs and expenses (including attorney
fees and other legal costs and expenses and accountants' fees and other
accounting costs and expenses) incurred by that party in connection with this
Agreement.
SECTION 8.2 INDEMNIFICATION. Xxxxxxx X. Xxxxxxx agrees to defend and hold
the Purchaser and Ham-Bio (following the Closing Date) and its officers and
directors harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities or damages, including
interest, penalties and reasonable attorney's fees, that it shall incur or
suffer, which arise out of, result from or relate to any breach of this
Agreement or failure by Xxxxxxx X. Xxxxxxx to perform with respect to any of its
representations, warranties or covenants contained in this Agreement or in any
exhibit or other instrument furnished or to be furnished under this Agreement.
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SECTION 8.3 INDEMNIFICATION. The Purchaser agrees to defend and hold
Xxxxxxx X. Xxxxxxx harmless against and in respect of any and all claims,
demands, losses, costs, expenses, obligations, liabilities or damages, including
interest, penalties and reasonable attorney's fees, that it shall incur or
suffer, which arise out of, result from or relate to any breach of this
Agreement or failure by the Purchaser to perform with respect to any of its
representations, warranties or covenants contained in this Agreement or in any
exhibit or other instrument furnished or to be furnished under this Agreement.
SECTION 8.4 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission followed by registered or certified mail
confirmation; (iii) on the date delivered by an overnight courier service; or
(iv) on the third business day after it is mailed by registered or certified
mail, return receipt requested with postage and other fees prepaid, to the
addresses provided by each party to the other parties.
SECTION 8.5 HEADINGS. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 8.6 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any such term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
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 to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 8.7 ENTIRE AGREEMENT. This Agreement (together with the Schedules,
Exhibit, certificates and documents referred to herein) constitute the entire
agreement of the parties and supersede all prior agreements and undertakings,
other than the Confidentiality Letters, both written and oral, between the
parties, or any of them, with respect to the subject matter hereof.
SECTION 8.8 BINDING EFFECT. All the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and assignees.
SECTION 8.9 PREPARATION OF AGREEMENT. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
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preparation. The parties acknowledge each contributed and is equally responsible
for its preparation.
SECTION 8.10 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida, without giving
effect to applicable principles of conflicts of law.
SECTION 8.11 PREPARATION AND FILING OF TAX RETURNS AND SECURITIES AND
EXCHANGE COMMISSION FILINGS. Xxxxxxx X. Xxxxxxx shall reasonably assist and
cooperate with the Purchaser in the preparation of all the federal, state and
local tax returns of Ham-Bio and all filings with the Securities and Exchange
Commission after the Closing Date due after the Closing Date relating to periods
prior to the Closing Date. After the Closing Date, the decision on whether to
file short period returns up to the Closing Date or for a period other than
Ham-Bio's current consolidated tax year, shall be made at the sole discretion of
the Purchaser.
SECTION 8.12 FURTHER ASSURANCES, COOPERATION. Each party shall, upon
reasonable request by the other party, execute and deliver any additional
documents necessary or desirable to complete the merger pursuant to and in the
manner contemplated by this agreement. The parties hereto agree to cooperate and
use their respective best efforts to consummate the transactions contemplated by
this agreement.
SECTION 8.13 SURVIVAL The representations, warranties, covenants and
agreements made herein shall survive the Closing of the transaction contemplated
hereby.
SECTION 8.14 THIRD PARTIES Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties hereto and their respective
administrators, executors, legal representatives, heirs, successors and
assignees. Nothing in this Agreement is intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right of subrogation or action
over or against any party to this Agreement.
SECTION 8.15 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty, covenant or
agreement herein, nor shall nay single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
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SECTION 8.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Purchaser, Xxxxxxx X. Xxxxxxx, and Ham-Bio have as of
the date first written above executed this Agreement.
PURCHASERS HAM-BIO
Brampton Crest Holdings, LLC Ham-Bio Development Corporation
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By: By:
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Title: Title:
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Xxxxxxx X. Xxxxxxx
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