Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of May 31, 2005, by and among Castle & Xxxxxx Holdings,
Inc., a Delaware Corporation ("CSMH"), Gaha Ventures, LLC, a New York limited
liability company, Altitude Group, LLC, a New York limited liability company,
Xxxxx Xxxxxx, an individual, and Fountainhead Investments, Inc., a Delaware
corporation (hereinafter individually referred to as an "Individual Seller" and
collectively referred to as the "Sellers"), and R&R Biotech Partners, LLC, a
Delaware limited liability company and Moyo Partners, LLC, a New York limited
liability company (hereinafter collectively, "Purchaser"), as Sellers and
Purchasers of certain issued and outstanding shares of CSMH Common Stock
("Seller Shares") and face value of certain outstanding notes issued by CSMH in
favor of, and currently held by, the Sellers ("Seller Notes"). , all as
hereinafter detailed.
WHEREAS, CSMH presently has 3,809,570 issued and outstanding shares of its
Common Stock, of which an aggregate of 2,384,584 of such shares are owned by the
Sellers as a group;
WHEREAS, CSMH has issued Notes in favor of Sellers in the aggregate face
amount of $52,920, which notes are presently owned by the Sellers;
WHEREAS, Sellers are the holders of the Seller Shares and the Seller
Notes, such holders being listed by name and share holdings on Schedule A
hereto;
WHEREAS, the Purchaser has agreed with the Sellers to purchase the Seller
Shares and face value of Seller Notes set forth opposite each Individual
Seller's name on Schedule A for an aggregate purchase price of $215,611.25. The
allocation of the Purchase Price among the Purchaser is set forth opposite each
Individual Purchaser's name on Schedule B;
WHEREAS, CSMH is willing to represent and warrant that the Seller Shares
and Seller Notes are duly authorized and issued, are fully-paid, non-assessable,
free from any liens or encumbrances, that there are no authorized and
outstanding convertible securities and that there are no authorized and
outstanding shares of CSMH stock other than those detailed in Sec. 6(f) below;
and
WHEREAS, Sellers desire to sell the Seller Shares and Seller Notes to
Purchaser who desires to acquire all of the Seller Shares and Seller Notes
pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, Sellers and Purchaser agree upon the following
terms and conditions of purchase:
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1. Purchase and Sale.
Sellers hereby agrees to sell, transfer, convey and deliver unto Purchaser
and Purchaser hereby agrees to acquire and purchase from the Sellers the Seller
Shares and Seller Notes.
2. Purchase Price.
The purchase price (the "Purchase Price") for the Seller Shares and Seller
Notes is $215,611.25, payable in cash on the Closing Date. The proportion of the
Seller Shares and face amount of Seller Notes to be purchased from each
Individual Seller, and the portion of the Purchase Price to be paid to each
Individual Seller by Purchaser is set forth on Schedule A. The allocation of the
Purchase Price among the parties comprising Purchaser is set forth opposite each
Individual Purchaser's name on Schedule B.
3. The Closing.
(a) The closing shall take place on May 31, 2005 (the "Closing Date") at
the offices of Morse, Zelnick, Rose & Lander, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000.
(b) Prior to the Closing Date, the Purchaser shall initiate a wire
transfer in the amount of the Purchase Price to the Attorney Trust account of
Morse, Zelnick, Rose & Lander, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
pursuant to the wire transfer instructions annexed hereto as Exhibit A.
(c) Sellers shall cause to be delivered to Purchaser on the Closing Date,
the Seller Shares (registered in the name of Purchaser or duly endorsed for
transfer) and evidence of assignment of the Seller Notes.
(d) Sellers shall execute such other documents as may be reasonably
requested by Purchaser, and its counsel, on the Closing Date or thereafter in
order to effect the terms and provisions of this Purchase Agreement and the
transactions contemplated thereby.
(e) Sellers shall cause to be delivered to Purchaser a legal opinion in
substantially the form of Exhibit A annexed heretoof in form and substance
satisfactory to Purchaser and it counsel to the effect that the Seller Shares
and Seller Notes are duly authorized, validly issued, fully paid and
nonassessable.
(f) From and after the Closing Date,on notice to CSMH, Purchaser shall be
entitled to appoint one representative to the Board of Directors of CSMH and
CSMH and the Sellers agree to take whatever action may be required to effect
such appointment.
4. Representations and Warranties of Sellers.
Sellers makes the following representations, warranties and covenants to
Purchaser as an inducement to enter into this Purchase Agreement, each of which
is true and correct as of the date hereof and shall survive the closing.
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(a) Sellers have the power and authority to deliver and perform this
Purchase Agreement and to sell, assign, transfer and deliver to Purchaser the
Seller Shares and Seller Notes.
(b) Neither the execution and delivery of this Purchase Agreement, nor the
consummation of the transactions contemplated hereby or compliance with the
terms and conditions hereof by the Seller will violate or result in a breach of
any term or provision of any agreement to which Sellers, or any of them, are
bound or are a party, or be in conflict with or constitute a default under, or
cause the acceleration of the maturity of any obligation of the Sellers under
any existing agreement or violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Sellers or any of their respective
properties or assets, the effect of which would be to impair the performance by
the Sellers of their obligations hereunder or the receipt by Purchaser of the
Seller Shares and Seller Notes.
(c) The Seller Shares and Seller Notes are owned beneficially and of
record by each Individual Seller and are validly issued and outstanding, fully
paid for and non-assessable with no personal liability attaching to the
ownership thereof. Each Individual Seller is the only person with a direct or
indirect interest in his/her respective Seller Shares and/or Seller Notes. No
Seller Shares or Seller Notes nor any interest therein have been sold, assigned,
transferred or hypothecated by any Individual Seller, nor has any Individual
Seller entered into any agreement or arrangement to sell, assign, transfer or
hypothecate all or any portion of his/her respective Seller Shares and/or Seller
Notes. Each Individual Seller owns his/its respective Seller Shares and Seller
Notes free and clear of all liens, charges, encumbrances or claims of others,
and upon delivery of the Seller Shares and/or Seller Notes, the Purchaser will
acquire good, valid and marketable title thereto free and clear of all liens,
charges, encumbrances and claims of others.
(d) This Purchase Agreement has been duly and validly executed by each
Individual Seller, and constitutes the valid and binding obligation of such
Seller, enforceable against each Individual Seller in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally or by limitations, on the availability of
equitable remedies.
(e) The representations, warranties, covenants and agreements of the
Sellers contained herein or in any other documents furnished to Purchaser
hereunder, shall be deemed and construed to be continuing representations,
warranties, covenants and agreements and shall survive the closing and the
payment of the Purchase Price for the Seller Shares and Seller Notes.
(f) The execution, delivery and performance by Sellers of this Agreement,
the performance of their obligations hereunder, and the consummation of the
transactions contemplated hereby are within the each Individual Seller's powers.
This Agreement has been duly and validly executed and delivered by each
Individual Seller and is a legal, valid and binding obligation of such Seller,
enforceable against it in accordance with its terms. The execution, delivery and
performance by each Individual Seller of this Agreement does not violate any
contractual restriction contained in any agreement which binds or affects or
purports to bind or affect such Seller. No Individual Seller is a party to any
agreement, written or oral, creating rights in respect of any of shares of CSMH
Common Stock underlying the Seller Notes in any third party or relating to the
voting of the CSMH Common Stock underlying the Seller Notes. Each Individual
Seller, and collectively, the Sellers, is the lawful owner of the Seller Shares
and Seller Notes, free and clear of all security interests, liens, encumbrances,
equities and other charges. Sellers do not beneficially own any options or
warrants or other rights to purchase shares of CSMH Common Stock. There are no
outstanding or authorized options, warrants, rights, calls, commitments,
conversion rights, rights of exchange or other agreements of any character,
contingent or otherwise, providing for the purchase, issuance or sale of any
CSMH Common Stock, and there are no restrictions of any kind on the transfer of
any of the Seller Shares or shares issued upon the conversion of the Seller
Notes other than (a) restrictions on transfer imposed by the Securities Act of
1933, as amended (the "Securities Act") and (b) restrictions on transfer imposed
by applicable state securities or "blue sky" laws.
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(g) The Seller Shares and Seller Notes were issued by CSMH and have been
issued and outstanding for at least one (1) year prior to the date of this
Agreement. In the aggregate, the Seller Shares constitute 50% of all of the
Seller Shares and the Seller Notes constitute 50% of the face amount of all
Seller Notes held by the Sellers as a group or their affiliates (other than
affiliates who execute a counterpart to this Agreement simultaneously with the
execution of this Agreement). The Individual Sellers acquired the Seller Shares
and Seller Notes on the following dates:
Name Shares Note Date Acquired
---- --------- ---------- --------------
Gaha Ventures, LLC 1,192,292 $26,145.00 Xxxxx 00, 0000
Xxxxxxxx Group, LLC 357,688 $ 7,843.51 March 10, 2005
Xxxxx Xxxxxx 166,921 $ 3,660.30 March 10, 2005
Fountainhead Investments, Inc. 667,683 $14,641.19 March 10, 2005
(h) Gaha Ventures, LLC and Fountainhead Investments, Inc. are affiliates
of CSMH by reason that their respective holdings exceed 10% of the total issued
and outstanding shares of CSMH Common Stock. Subject thereto, Sellers have no
reason to believe that the exemption from registration contained in Rule 144
under the Securities Act of 1933, as amended, will not be available for the
resale of the Seller Shares.
(i) Sellers are aware of the Company's business affairs and financial
condition and has reached an informed and knowledgeable decision to sell the
Seller Shares and Seller Notes.
5. Representations and Warranties of Purchaser.
Purchaser represents and warrants to the Seller as follows:
(a) Purchaser has full power and authority to enter into this Purchase
Agreement and to carry out the transactions contemplated hereby. This Purchase
Agreement constitutes a valid and binding obligation of Purchaser enforceable in
accordance with its terms, except as (i) the enforceability hereof may be
limited by bankruptcy, insolvency or similar laws affecting the enforceability
of creditor's rights generally and (ii) the availability of equitable remedies
may be limited by equitable principles of general applicability.
(b) Neither the execution and delivery of this Purchase Agreement nor the
consummation of the transactions contemplated hereby, nor compliance by
Purchaser with any of the provisions hereof will:
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(i) violate, or conflict with, or result in a breach of any provision of,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
Purchaser under any of the terms, conditions or provisions of any material note,
bond, indenture, mortgage, deed or trust, license, lease, agreement or other
instrument or obligation to which he is a party or by which he or any of his
properties or assets may be bound or affected, except for such violations,
conflicts, breaches or defaults as do not have, in the aggregate, any material
adverse effect; or
(ii) violate any material order, writ, injunction, decree, statute, rule
or regulation applicable to Purchaser or any of its properties or assets, except
for such violations which do not have, in the aggregate, any material adverse
effect.
(c) Purchaser is acquiring the Seller Shares and Seller Notes without a
view to the resale thereof, unless same is either registered under the
Securities Act of 1933 or is sold exempt from registration thereunder. The
Purchaser represents that it is purchasing the Seller Shares and Seller Notes
for its own account, with the intention of holding the Seller Shares and Seller
Notes, with no present intention of dividing or allowing others to participate
in this investment or of reselling or otherwise participating, directly or
indirectly, in a distribution of the Seller Shares and Seller Notes, and shall
not make any sale, transfer, or pledge thereof without registration under the
Securities Act and any applicable securities laws of any state unless an
exemption from registration is available under those laws.
(d) Certain of the Seller Shares delivered to the Purchaser shall bear a
restrictive legend indicating that they have not been registered under the
Securities Act of 1933 and are "restricted securities" as that term is defined
in Rule 144 under the Act. The Purchaser represents that it has adequate means
of providing for its current needs and has no need for liquidity in this
investment in the Seller Shares and Seller Notes. Purchaser represents that it
is an "accredited investor" as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act. Purchaser has no reason to anticipate any
material change in its financial condition for the foreseeable future. Purchaser
is financially able to bear the economic risk of this investment, including the
ability to hold the Seller Shares and Seller Notes or to afford a complete loss
of its investment in the Seller Shares and/or Seller Notes. Purchaser has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Seller Shares and Seller
Notes. Purchaser has had a full and fair opportunity to make inquiries about the
terms and conditions of this Agreement, to discuss the same and all related
matters with its own independent counsel and its own accountants and tax
advisers. Purchaser has been given the opportunity to ask questions of, and
receive answers from Sellers concerning the terms and conditions of this
Agreement and to obtain such additional written information about CSMH to the
extent Sellers possess such information or can acquire it without unreasonable
effort or expense. Notwithstanding the foregoing, Purchaser has had the
opportunity to conduct its own independent investigation.
(e) No permit, consent, approval or authorization of, or declaration,
filing or registration with any governmental or regulatory authority is required
in connection with the execution and delivery by Purchaser of this Agreement and
the consummation of the transactions contemplated hereby.
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(f) The representations, warranties, covenants and agreements of Purchaser
contained herein or in any other document furnished by Purchaser hereunder,
shall be deemed and construed to be continuing representations, warranties,
covenants and agreements and shall survive the closing.
6. Representations and Warranties of CSMH.
CSMH makes the following representations, warranties and covenants to
Purchaser as an inducement to enter into this Purchase Agreement, each of which
is true and correct as of the date hereof and shall survive the closing.
(a) CSMH is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all corporate powers
and all governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted. CSMH has heretofore
delivered to the Purchaser true and complete copies of the Articles of
Incorporation, as amended, and By-laws, each as currently in effect;
(b) CSMH has the power and authority to deliver and perform this Purchase
Agreement, to make the representations and warranties contained herein and to
deliver all shares required to be issued hereunder.
(c) Neither the execution and delivery of this Purchase Agreement, nor the
consummation of the transactions contemplated hereby or compliance with the
terms and conditions hereof by CSMH will violate or result in a breach of any
term or provision of any agreement to which CSMH is bound or is a party, or
CSMH's Certificate of Incorporation or By-Laws, or be in conflict with or
constitute a default under, or cause the acceleration of the maturity of any
obligation of CSMH under any existing agreement or violate any order, writ,
injunction, decree, statute, rule or regulation applicable to CSMH or any of its
properties or assets, the effect of which would be to impair the performance by
CSMH of its obligations hereunder or the receipt by Purchaser of the Seller
Shares and/or Seller Notes.
(d) The Seller Shares and Seller Notes are owned beneficially and of
record by the Sellers, are validly issued and outstanding, fully paid for and
non-assessable with no personal liability attaching to the ownership thereof.
(e) This Purchase Agreement has been duly and validly executed by CSMH and
constitutes the valid and binding obligation of CSMH, enforceable against it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other laws affecting creditors' rights generally or by
limitations, on the availability of equitable remedies. The representations,
warranties, covenants and agreements of CSMH contained herein or in any other
documents furnished to Purchaser hereunder, shall be deemed and construed to be
continuing representations, warranties, covenants and agreements and shall
survive the closing and the payment of the Purchase Price for the Seller Shares
and Seller Notes.
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(f) The number of shares and type of all authorized, issued and
outstanding capital stock of CSMH is set forth in the Disclosure Schedules
attached hereto. All of the issued and outstanding shares of capital stock of
CSMH have been duly authorized and validly issued and are fully paid and
nonassessable. All of the issued and outstanding shares of capital stock of CSMH
have been offered, issued and sold by CSMH in compliance with all applicable
federal and state securities laws. No securities of CSMH are entitled to
preemptive or similar rights, and no Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the transactions contemplated hereby. Except as set forth in the Disclosure
Schedules, there are no outstanding options, warrants, script rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exchangeable for, or
giving any Person any right to subscribe for or acquire, any shares of Common
Stock of CSMH, or contracts, commitments, understandings or arrangements by
which CSMH is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common Stock.
(g) There are no outstanding obligations, contingent or otherwise, of CSMH
to redeem, purchase or otherwise acquire any capital stock or other securities
of CSMH.
(h) There are no shareholder agreements, voting trusts or other agreements
or understandings to which CSMH is a party or by which it is bound relating to
the voting of any shares of the capital stock of CSMH.
(i) On the Closing Date, CSMH shall deliver to the Purchaser a current
shareholder list generated by its transfer agent as of a date no more than five
days prior to the date of closing, and shall represent and warrant that such
list accurately reflects all of the issued and outstanding shares of CSMH Common
Stock.
(j) On the Closing Date, CSMH is free of any liabilities of any
description, direct, contingent or otherwise other than the Seller Notes and any
liabilities disclosed on CMSH's Form 10-QSB for the period ended March 31, 2005
filed with the United States Securities and Exchange Commission. .
(k) On the Closing Date, CSMH is not a party to any pending or threatened
legal or administrative proceeding.
(l) During the period from its inception through the Closing Date, CSMH
has filed or furnished (i) all reports, schedules, forms, statements,
prospectuses and other documents required to be filed with, or furnished to, the
Securities and Exchange Commission (the "SEC") by CSMH (all such documents, as
amended or supplemented, are referred to collectively as, the "CSMH SEC
Documents") and (ii) all certifications and statements required by (x) Rule
13a-14 or 15d-14 under the Exchange Act, or (y) 18 U.S.C. ss.1350 (Section 906
of the Xxxxxxxx-Xxxxx act of 2002) with respect to any applicable CSMH SEC
Document (collectively, the "SOX Certifications"). CSMH has made available to
the Purchaser all SOX Certifications and comment letters received by CSMH from
the staff of the SEC and all responses to such comment letters by or on behalf
of CSMH. CSMH has identified and made available to the Purchaser a copy of all
CSMH SEC Documents filed within the 10 days preceding the date of this
Agreement. CSMH has complied in all respects with its SEC filing obligations
under the Exchange Act and the Securities Act. Each of the audited financial
statements and related schedules and notes thereto and unaudited interim
financial statements of CSMH (collectively, the "CSMH Financial Statements")
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contained in the CSMH SEC Documents (or incorporated therein by reference) were
prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis ("GAAP") (except in the case of interim
unaudited financial statements) except as noted therein, and fairly present in
all respects the consolidated financial position of CSMH and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations, cash flows and changes in stockholders' equity for the periods then
ended, subject (in the case of interim unaudited financial statements) to normal
year-end audit adjustments (the effect of which will not, individually or in the
aggregate, be adverse) and, such financial statements complied as to form as of
their respective dates in all respects with applicable rules and regulations of
the SEC. The financial statements referred to herein reflect the consistent
application of such accounting principles throughout the periods involved,
except as disclosed in the notes to such financial statements. No financial
statements of any Person not already included in such financial statements are
required by GAAP to be included in the consolidated financial statements of
CSMH. As of their respective dates, each CSMH SEC Document was prepared in
accordance with and complied with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations thereunder, and the
CSMH SEC Documents (including all financial statements included therein and all
exhibits and schedules thereto and all documents incorporated by reference
therein) did not, as of the date of effectiveness in the case of a registration
statement, the date of mailing in the case of a proxy or information statement
and the date of filing in the case of other CSMH SEC Documents, contain any
untrue statement of a fact or omit to state a fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Neither CSMH nor, to CSMH's
knowledge, any of its officers has received notice from the SEC or any other
Governmental Entity questioning or challenging the accuracy, completeness,
content, form or manner of filing or furnishing of the SOX Certifications.
(m) CSMH has properly and timely filed all federal, state and local Tax
returns and has paid all Taxes, assessments and penalties due and payable. All
such Tax returns were complete and correct in all respects as filed, and no
claims have been assessed with respect to such returns, The provisions made for
Taxes on the balance sheets of CSMH and its Subsidiaries included in the CSMH
Financial Statements and the CSMH Interim Financial Statements are sufficient in
all respects for the payment of all Taxes whether disputed or not that are due
or are hereafter found to have been due with respect to the conduct of the
business of CSMH and its Subsidiaries up to and through the date of such CSMH
Financial Statements or CSMH Interim Financial Statements, respectively. There
are no present, pending, or threatened audit, investigations, assessments or
disputes as to Taxes of any nature payable by CSMH or any of its Subsidiaries,
nor any Tax liens whether existing or inchoate on any of the assets of CSMH or
any of its Subsidiaries, except for current year Taxes not presently due and
payable. The federal income Tax returns of CSMH and its Subsidiaries have never
been audited. No IRS or foreign, state, county or local Tax audit is currently
in progress. Neither CSMH nor any of its Subsidiaries has waived the expiration
of the statute of limitations with respect to any Taxes. There are no
outstanding requests by CSMH or any of its Subsidiaries for any extension of
time within which to file any Tax return or to pay Taxes shown to be due on any
Tax return.
(n) CSMH does not employ as of the Closing Date any employees and does not
maintain any employee benefit or stock option plans.
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(o) No representation or warranty by CSMH in this Agreement, nor in any
certificate, schedule or exhibit delivered or to be delivered pursuant to this
Agreement contains or will contain any untrue statement of material fact, or
omits or will omit to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were made, not
misleading.
(p) Trading With the Enemy Act; Patriot Act. No sale of CSMH's securities
or CSMH's use of the proceeds from such sale has violated the Trading with the
Enemy Act, as amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto. Without limiting
the foregoing, CSMH (a) is not a person whose property or interests in property
are blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) and (b) does not
engage in any dealings or transactions, or be otherwise associated, with any
such person. CSMH is in compliance with the Patriot Act of 2001.
(q) Except as disclosed in par. 5(h), no Seller is an affiliate of CSMH.
Subject to the provisions related to sales of shares by affiliates, CSMH has no
reason to believe that the exemption from registration contained in Rule 144
under the Securities Act of 1933, as amended, will not be available for the
resale of the Shares issuable upon conversion of the Seller Notes by Purchaser.
8. Indemnification by the Seller.
Sellers, jointly and severally, shall forever indemnify and hold harmless
Purchaser and its representatives, successors and assigns from and against any
and all expenses (including legal expenses), losses, claims, damages and
liabilities, joint or several, and all actions, claims, proceedings or
investigations in respect thereof to which Purchaser may become subject to the
extent that such expenses, losses, claims, damages, liabilities or actions arise
out of or are based upon any misrepresentation or material omission contained in
Paragraph 5 of this Purchase Agreement and the subject matter therein.
9. Miscellaneous Provisions.
(a) Notices. All notices, requests and other communications to any party
hereunder shall be in writing and either delivered personally, telecopied or
sent by certified or registered mail, postage prepaid,
If to the Seller: Gaha Ventures, LLC
Altitude Group, LLC
Xxxxx Xxxxxx
Fountainhead Investments, Inc.
c/o Xxxxxx X. X. Xxxxxx
000 Xxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. X. Xxxxxx
000 Xxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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If to Purchaser: R&R Biotech Partners, LLC
000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx, CFO
Facsimile: (000) 000-0000
Moyo Partners, LLC
x/x Xxxxxx Xxxxx, Xxx.
000 Xxxx 00xx Xxxxxx, XXX
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxx, Esq.
Morse, Zelnick, Rose & Lander, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Facsimile: (000)000-0000
If to the Company: Castle & Xxxxxx Holdings, Inc.
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. X. Xxxxxx
000 Xxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally
or by overnight delivery service or telecopied or, if mailed, five (5) business
days after the date of mailing if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
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(b) Amendments; No Waivers.
(i) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an
amendment, by the Seller and Purchasers; or in the case of a waiver, by
the party against whom the waiver is to be effective.
(ii) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
(c) Fees and Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
(d) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that Purchasers shall have the right to assign
this Agreement to an affiliate of such Purchaser and no other party hereto may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto, but any such
transfer or assignment will not relieve the appropriate party of its obligations
hereunder.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
(f) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in the City of New York, Borough of Manhattan, and each
of the parties hereto consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9(a). shall be deemed
effective service of process on such party. Each party hereto (including its
affiliates, agents, officers, directors and employees) irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
11
(g) Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto has received
counterparts hereof signed by all of the other parties. No provision of this
Agreement is intended to confer upon any person other than the parties hereto
any rights or remedies under this Agreement.
(h) Entire Agreement. This Agreement and the attached Exhibits and
Schedules constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
(i) Captions. The captions are included for convenience of reference only
and shall be ignored in the construction or interpretation of this Agreement.
(j) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any parties. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the fullest extent
possible.
(k) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the its terms and that the parties shall be entitled to specific
performance of the terms of this Agreement in addition to any other remedy to
which they are entitled at law or in equity.
(l) Brokers and Finders. Neither the Seller nor CSMH, nor any of their
respective directors, officers or agents on their behalf, have incurred any
obligation or liability, contingent or otherwise, for brokerage or finders' fees
or agents' commissions or financial advisory services or other similar payment
in connection with this Agreement.
(m) Further Assurances. Each of the Seller and the Purchaser agrees, from
time to time, at the reasonable request of the other, to deliver to the other
such further instruments or take such other actions as the other may reasonably
require to effect the purposes and intent of this Purchase Agreement and to
effect the terms and provisions contained therein.
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Purchase Agreement as of the date first above written.
PURCHASER:
R&R BIOTECH PARTNERS, LLC
/s/ Xxxxxx X. Xxxxx
----------------------------------------
By: Xxxxxx X. Xxxxx
12
MOYO PARTNERS, LLC
/s/ Xxxxxx Xxxxx
----------------------------------------
By: Xxxxxx Xxxxx
SELLER:
GAHA VENTURES, LLC
/s/ Xxxx Xxxxxx
----------------------------------------
By: Xxxx Xxxxxx
ALTITUDE GROUP, LLC
/s/ Xxxxxxx Xxxxxxx Xxxxxxxx
----------------------------------------
By: Xxxxxxx Xxxxxxx Xxxxxxxx, President
/s/ Xxxxx Xxxxxx
----------------------------------------
XXXXX XXXXXX
FOUNTAINHEAD INVESTMENTS, INC.
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
By: Xxxxx X. Xxxxxxxxx
CASTLE & XXXXXX HOLDINGS, INC,
/s/ Xxxxxxxx Alison
----------------------------------------
By: Xxxxxxxx Xxxxxx, President
13
SCHEDULE A
SHARES AND NOTE FACE AMOUNT SOLD
PERCENTAGE OF
FACE AMOUNT PURCHASE PRICE
SELLER NAME SHARES SOLD NOTE SOLD RECEIVABLE
----------- ----------- ----------- --------------
Gaha Ventures, LLC 596,146 $ 13,072.50 50%
Altitude Group, LLC 178,844 $ 3,921.75 15%
Xxxxx Xxxxxx 83,460.50 $ 1,830.15 7%
Fountainhead Investments, Inc.
333,841.50 $ 7,320.60 28%
TOTAL
1,192,292 $ 26,145.00 100%
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SCHEDULE B
SHARES AND NOTE FACE AMOUNT PURCHASED
PERCENTAGE OF
FACE AMOUNT PURCHASE PRICE
PURCHASER NAME SHARES PURCH. NOTE PAYABLE
-------------- ------------- ----------- --------------
R&R Biotech Partners, LLC 953,834 $20,916.00 80%
Moyo Partners, LLC 238,458 $ 5,229.00 20%
TOTAL 1,192,292 $26,145.00
15
EXHIBIT A
WIRE TRANSFER INSTRUCTIONS
[redacted]
16
