AGREEMENT FOR PURCHASE AND SALE OF STOCK
AGREEMENT
FOR PURCHASE AND SALE OF STOCK
This
Agreement for Purchase and Sale of Stock, dated as of September 30, 2007
(the “Agreement”), is between Labwire, Inc, a Nevada corporation (“Buyer”), and
Xxxxxxx Xxxxxx, (“Xxxxxx” or “Seller”).
RECITALS:
A. Seller
is the owner of all outstanding stock in the company known as Occupational
Testing, Inc. (collectively, the “Business”).
B. Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller, all of
Sellers’ stock in the above listed corporation, on the terms and subject to the
conditions contained in this Agreement.
C. Seller
acknowledges that the sale of the Stock will result hi an economic benefit to
her, as a result, has entered into and agreed to be bound by the terms of this
Agreement as provided herein.
NOW,
THEREFORE, hi consideration of the premises and the mutual promises contained
herein, the parties hereby agree as follows:
ARTICLE
1
DEFINITIONS
Article
1.1 Definitions
of Certain Terms
The
following defined terms shall have the following meanings:
“Business”
shall mean Occupational Testing, Inc.
“Business
Day” means any day, excluding Saturday, Sunday and any other day on which
commercial banks in Gillette, Wyoming are authorized or required by law to
close.
“Business
Employees” shall mean all Persons employed by Seller on the Closing
Date.
“Code”
shall mean the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
“Confidential
Information” means any information concerning the businesses and attacks of
Buyer (including any such information included in the Corporate Assets) that is
not already generally available to the public.
“Contract”
shall mean any agreement, lease, license, contract, arrangements, understanding
or undertaking, instrument or document (whether written or oral) of any type,
nature or description that is legally binding, including, without limitation,
all rental agreements, service agreements, supply agreements, operating
agreements, license agreements, distribution agreements, sales representative
agreements, computer software agreements and technical service
agreements.
“Employee
Benefit Plan” means all employee benefit plans and collective bargaining,
employment or severance agreements or other similar arrangements which the
business has ever sponsored, maintained, or to which contributions are made, or
for which obligations have been incurred, for the benefit of employees of the
business or an ERISA Affiliate, including, without limitation, (1) any “employee
benefit plan” (within the meaning of Section 3(3) of ERISA), (2) any
profit-sharing, deferred compensation, bonus, stock option, stock purchase,
pension, retainer, consulting, retirement, severance, welfare or incentive plan,
agreement or arrangement, (3) any plan, agreement or arrangement providing for
“fringe benefits” or perquisites to employees, officers, directors, managers or
agents, including but not limited to benefits relating to automobiles, clubs,
vacation, child care, parenting, sabbatical, sick leave, medical, dental,
hospitalization, life insurance and other types of insurance, and (4) any
employment agreement.
“Employee
Pension Benefit Plan” has the meaning set forth in ERISA §3(2).
“Employee
Welfare Benefit Plan” has the meaning set forth in ERISA §3(1).
“Environmental
Laws” shall mean any and all applicable and binding legal mandates for the
protection of the environment, duly promulgated or issued by legislative bodies,
competent authorities, tribunals or organizations and having the force of law,
including, but not limited to, any law, regulation or rule regulating the use,
treatment, generation, transportation, storage, control or disposal of any
Hazardous Substances, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U. S. C. § 9601 et seq.) (“CERCLA”), the
Resource Conservation and Recovery Act (42 U. S. C. § 6901 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Water Act
(33 U.S.C. § 1251 et seq.),
the Clean Air Act (42 U.S.C. § 7401 et seq.), and the Toxic
Substances Control Act (15 U.S.C. § 2601 et seq.), all as heretofore
or hereafter amended or reauthorized.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, together
with all regulations and proposed regulations promulgated
thereunder.
“Fiduciary”
has the meaning set forth hi ERISA §3(21).
“GAAP”
shall mean United States generally accepted accounting principles.
“Intellectual
Property” shall mean any and all (i) inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications and patent disclosures, together with all
reissuances, continuations, continuations in part, revisions, extensions and
reexaminations thereof, (ii) trademarks, service marks, trade dress, logos,
trade names, assumed names and corporate names, together with all translations,
adaptations, derivations and combinations thereof and including all goodwill
associated therewith, and all applications, registrations and renewals in
connection therewith, (iii) copyrightable works, all copyrights and all
applications, registrations and renewals in connection therewith, (iv) mask
works and all applications, registrations and renewals in connection therewith,
(v) trade secrets and confidential business information (including ideas,
research and development, know-how, technology, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals), (vi) all of the
plans, specifications, blueprints, surveys, repair and operating manuals,
warranties, guaranties, maintenance records, and other written information in
the possession of the business relating to any of the Purchased Assets; (vii)
computer software (including data and related software program documentation in
computer readable and hard-copy forms), (viii) other intellectual property and
proprietary rights of any kind, nature or description, and (ix) copies of
tangible and embodiments thereof (in whatever form or medium).
“Knowledge”,
whether capitalized or not, of Xxxxxx or the business shall mean the actual
awareness of Xxxxxx or the business, after due inquiry and investigation by
him.
“Liability”
shall mean means any liability (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
“Liens”
shall mean all liens, claims, charges, security interests, options or other
encumbrances (other than restrictions on transfer generally arising under the
Securities Act or other applicable securities laws).
“Loss” or
“Losses” shall mean all actions, suits, proceedings, hearings, investigations,
charges, complaints, claims, demands, injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in settlement,
Liabilities, obligations, Taxes, Liens, losses, expenses, and fees, including
court costs and reasonable attorneys’ fees and expenses.
“Material
Adverse Effect” means any effect or change that would be materially adverse to
the business, assets, condition (financial or otherwise), operating results,
operations, or business prospects of the business, taken as a whole, or on the
ability of Xxxxxx to consummate timely the transactions contemplated hereby
(regardless of whether or not such adverse effect or change can be or has been
cured at any time or whether Buyer has knowledge of such effect or change on the
date hereof).
“Most
Recent Balance Sheet” shall mean the unaudited balance sheet of the business for
the six (6) month period ended June 30, 2007.
“Permits”
shall mean licenses, permits or franchises issued by any United States or
foreign, federal, state, provincial, municipal or local authority or regulatory
body and other governmental certificates, authorizations and
approvals.
“Permitted
Liens” shall mean (i) Liens for Taxes, assessments and other governmental
charges not yet due and payable or, if due, (A) not delinquent or (B) being
contested hi good faith by appropriate proceedings during which collection or
enforcement against the property is stayed; and (ii) mechanics’, workmen’s,
repairmen’s, warehousemen’s, carriers’ or other like liens arising or incurred
in the ordinary course of business if the underlying obligations are not
past-due.
“Person”
shall mean any individual, firm, partnership, association, trust, corporation,
joint venture, unincorporated organization, Limited Liability Company,
governmental body or other entity.
“Proceeding”
shall mean an action, suit, proceeding, hearing, investigation, litigation,
charge, complaint, claim or demand.
“Prohibited
Transaction” has the meaning set forth in ERISA §406 and §4975 of the
Code.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Taxes”
shall mean any federal, state, provincial, local, territorial and foreign
income, profits, franchise, gross receipts, payroll, sales, employment, use,
property, real estate, excise, value added, estimated, stamp, withholding and
any other taxes, duties or assessments, together with all interest, penalties
and additions imposed with respect to such amounts.
ARTICLE
2
THE
TRANSACTION
Article 2.1 Purchase and Sale of
Stock
Upon the
terms and subject to the conditions of this Agreement, at the Closing (as
defined hereinafter), Seller shall sell, transfer, assign and deliver to Buyer,
and Buyer shall purchase, accept and receive, the Corporate Stock of Seller
represented by Stock Certificate No. 1 in the amount of 1,000
shares.
Article 2.2 Assumed Liabilities and
Obligations
Buyer
shall assume and shall be liable and responsible for all liabilities of the
corporation which exist on the day of closing and will hold Xxxxxx harmless
therefrom.
Article 2.3 Excluded
Liabilities
Except as
provided in Section 2.3, Buyer shall not assume and shall not be responsible or
otherwise liable for, and shall not otherwise bear the economic burden of the
following liabilities or obligations of the business, whether accrued, matured,
unmatured, absolute or contingent, whether due or to become due, whether related
to the Purchased Assets or otherwise, and regardless of when asserted (the
“Excluded Liabilities”). Seller shall discharge when due the Excluded
Liabilities. Without limiting the generality of the foregoing, the following
claims against and liabilities of Seller are excluded and shall not be assumed
or discharged by Buyer:
(a) Liabilities
and obligations relating to any Taxes incurred by Seller prior to the Closing
Date;
(b) any
Funded Debt;
(c) any
Liability as of the Closing Date for any amounts to be contributed to any
Employee Benefit Plan relating to periods prior to the Closing
Date.
Article 2.4 Contracts
If any
necessary consent, approval or novation is not obtained from a customer of the
business, Seller shall cooperate with Buyer in any reasonable lawful arrangement
designed to provide Buyer with substantially all of the benefits under such
Contract, lease or order as if such consent, approval or novation had been
obtained, including subleases from the business.
ARTICLE
3
CONSIDERATION
FOR TRANSFER
Article
3.1 Purchase
Price
The
aggregate purchase price for the Purchased Assets (the “Purchase Price”) shall
consist of: (i) Six Hundred Thousand Dollars ($600,000.00).
Payment
of the Purchase Price. At the Closing Buyer shall (i) pay to Seller the sum of
$120,000.00. The remaining balance of $480,000.00 shall be paid to Seller
according to the terms of a promissory note to be executed and delivered to
Seller at closing.
Purchase Price
Adjustment
The
Purchase Price shall be adjusted in accordance with the terms of the LOI
previously entered into between the parties as it relates to Net Assets and the
Net Asset Target. No other adjustments shall be made in the purchase
price.
Article 3.2 Employment and Consulting
Agreements
As
additional consideration for the underlying transaction, Buyer and Xxxxxxx
Xxxxxx agree to enter into an employment contract for the period from closing
through 31 December 2007. Subsequent to that the parties will enter into a
consulting agreement for a period of six months beginning 1 January 2008. The
terms of both agreements shall be acceptable to both parties and shall encompass
the terms set forth in the LOI.
ARTICLE
4
REPRESENTATION
AND WARRANTIES OF THE SELLING PARTIES
Xxxxxx
represents and warrants to Buyer that, as of the date of this Agreement,
the:
(i)
balance sheet and the related statements of income and cash flows of the
business as of and for the fiscal year ended December 31,2006 and,
(ii) the
unaudited/audited, balance sheets and related unaudited statements of income and
cash flows of each the business as of and for the six (6) months ending June
30,2007.
Presently
the financial position and condition of the business as of the respective dates
and the results of the business’s operations for periods covered, are correct
and complete, and are consistent with the books and records of the business
(which books and records are correct and complete.)
Article 4.1 Undisclosed
Liabilities
Neither
Xxxxxx nor the business has any Liability (and there is no basis for any present
or future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against them giving rise to any Liability), except for (i)
Liabilities set forth on the face of the Most Recent Balance Sheet and (ii)
Liabilities which have arisen after the date of the Most Recent Balance Sheet in
the ordinary course of business (none of which results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract, breach
of warranty, tort, infringement, or violation of law).
Article 4.2 Subsidiaries/Affiliates
There are
no subsidiaries or affiliates of the corporation, nor is it a participant in any
joint venture, partnership, or similar arrangement.
Article 4.3 Absence of
Changes
Except as
set forth on Schedule 4.8, since December 31, 2006, there has not
occurred:
(a) any
failure to operate the Business in the ordinary course so
as to preserve the Business organization intact, including its Contracts
relationships with customers, employees and others having business relationships
with the corporation;
(b) any
change or event that has resulted or could reasonably be expected to result hi a
Material Adverse Effect;
(c) any
capital expenditure or commitment related to the Business other than in the
ordinary course of the business;
(d) any
cancellation of any debt owed to the business;
(e) any
execution of any employment contract or collective bargaining agreement, written
or oral, or any modification of the terms of any existing such contract or
agreement;
(f) any bonus
or increase in the compensation payable or to become payable by the business to
any Business Employee other than bonuses given or increases made hi the ordinary
course of business;
(g) any loans
or advances by or to the business or other pledging of the credit of the
business (other than renewals or extensions of existing indebtedness), or any
increase in any existing indebtedness for borrowed money of the business, or the
granting or attachment of any Lien on any of the assets of the business (other
than Permitted Liens);
(h) any
change in accounting methods, principles or practices of the
business;
(i) any
damage, destruction, or loss (whether covered by insurance) to the business’s
property or assets;
(j) any
cancellation, termination or amendment of any Contract; This would include the
cancellation of any rental agreement or
(k) any
agreement by, or commitment of the business to do any of the
foregoing.
Article 4.4 Real
Property
The
corporation does not own any real property. The business is
operating under a month to month tenancy.
Article 4.5 Contracts
Schedule
A lists the following contracts and other agreements to which the business is a
party:
(a) Except as
described in Schedule A, there is no pending Proceeding: (i) that has been
commenced by or against any Selling Party that related to the Business
or any of the corporate Assets; or (ii) that on its face challenges any of
the transactions contemplated hereby.
(b) To the
Knowledge of Xxxxxx, (i) no Proceeding has been threatened, and (ii) no
event has occurred or circumstance exists that may give rise to, or serve as a
basis for, the commencement of any such Proceeding.
Article 4.6 Intangible Property
Rights
The
business owns or has the right to use pursuant to license, sublicense,
agreement, or permission all Intellectual Property necessary or desirable for
the operation of its business as presently conducted. Each item of Intellectual
Property owned or used by the business immediately prior to the Closing
hereunder will be owned or available for use by Buyer on identical terms and
conditions immediately subsequent to the Closing hereunder. The business has
taken all necessary and desirable action to maintain and protect each item of
Intellectual Property that it owns or uses.
(a) The
business has not interfered with, infringed upon, misappropriated, or otherwise
come into conflict with any Intellectual Property rights of third parties, and
business has not received any charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or violation
(including any claim that the business must license or refrain from using any
Intellectual Property rights of any third party). No third party has interfered
with, infringed upon, misappropriated, or otherwise come into conflict with any
Intellectual Property rights of the business.
(b) Except as
set forth on Schedule B, no patent or registration has been issued to the
business with respect to any of its Intellectual Property. The business has not
made any patent or registration applications with respect to any of its
Intellectual Property, and the business has not granted any licenses or other
permission of any third party or entered into any agreements with any third
party with respect to any of its Intellectual Property.
(c) Failure
to act or comply in connection with the administration or investment of the
assets of any such Employee Benefit Plan. No action, suit, proceeding, hearing,
audit, inquiry, review, demand or investigation with respect to any Employee
Benefit Plan (other than routine claims for benefits) is pending or, to the
knowledge of Xxxxxx, threatened. Xxxxxx has no knowledge of any basis for any
such action, suit, proceeding, hearing, audit, inquiry, review, demand or
investigation. No event has occurred and no condition exists with respect to any
Employee Benefit Plan that could give rise to liability under the Code or
ERISA.
(d) The
business does not contribute to, has any obligation to contribute to, has ever
contributed to, has ever had an obligation to contribute to, or has any
liability under or with respect to any Employee Benefit Plan that is a “defined
benefit plan” (as defined in ERISA §3(35)), a “multiple employer plan” (as
defined in ERISA §3(40) or Code §413(c)), a “voluntary employees’ beneficiary
association” (as defined in Code §501(c)(9)), or a “multiple employer welfare
arrangement” (as defined in ERISA §3(40XA)). No asset of the business is subject
to any Lien under ERISA or the Code.
(e) The
business does not contribute to, has any obligation to contribute to, has ever
contributed to, has ever had an obligation to contribute to, or has any
liability (including withdrawal liability as defined in ERISA §4201) under or
with respect to any Multiemployer Plan.
(f) The
business does not maintain, contribute to or have an obligation to contribute
to, or have any liability or potential liability with respect to, any Employee
Welfare Benefit Plan providing health or life insurance or other welfare-type
benefits for managers, officers or employees (or any spouse or other dependent
thereof) of the business who are currently retired, will in the future retire or
have been terminated, other than in accordance with COBRA.
(g) No
condition exists as a result of which the business would have any liability,
whether absolute or contingent, including any obligations under any Employee
Benefit Plan, with respect to any misclassification of a person performing
services for the business as an independent contractor rather than as an
employee.
(h) No
Employee Benefit Plan obligates the business to pay separation, severance,
termination or similar benefits solely as a result of any transaction
contemplated by this Agreement or solely as a result of “change of control” (as
such term is defined in Section 280G of the Code).
(i) Each
Employee Benefit Plan that is subject to Section 1862(b)(l) of the Social
Security Act has been operated in compliance with the secondary payor
requirements of Section 1862 of such Act.
(j) No
Employee Benefit Plan, nor any trust created thereunder, now holds or has
heretofore held as assets any stock or securities issued by the
business.
Article 4.10 Compliance with
Laws
The
business has been operated in compliance in all material respects with all
applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder of federal, state,
local, and foreign governments (and all agencies thereof), and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
has been field or commenced or, to Xxxxxx’x knowledge, threatened against any of
them alleging any failure so to comply. Except as disclosed on Schedule F, (i)
the business has all permits required by any United States or foreign, federal,
state, provincial, municipal or local governmental or regulatory body for the
operation of the Business and the use of its properties as presently operated or
used; (ii) all such permits are in full force and effect and no action, claim or
proceeding is pending nor to Xxxxxx’x knowledge threatened, to suspend, revoke,
revise, limit, restrict or terminate any of such permits or declare any such
permit invalid; and (iii) the business has filed all necessary reports and
maintained and retained all necessary records pertaining to such
permits.
Article 4.11 Finders;
Brokers
Except as
disclosed on Schedule G, Xxxxxx is not a party to any agreement with any finder,
broker or consultant or is in any way obligated to any finder, broker or
consultant for any commissions, fees or expenses, in connection with the origin,
negotiation, execution or performance of this Agreement.
Article 4.12 Customers and
Suppliers.
Since the
date of the most recent balance sheet, no material supplier of the business has
indicated that it shall stop, or decrease the rate of, supplying materials,
products or services to the business, and no material customer has indicated
that it shall stop, or decrease its use of the services offered by the
business.
ARTICLE
5
REPRESENTATION
AND WARRANTIES OF THE BUYER
The Buyer
represents and warranties to Xxxxxx that, as of the date of this
Agreement:
Article 5.1 Existence
Buyer is
a Nevada corporation, duly organized, validly existing and hi good standing
under the laws of the state of Wyoming and has all necessary power and authority
to enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions completed hereby.
Article 5.2 Authority
This
Agreement and the consummation of all of the transactions provided for herein
have been duly authorized by all requisite action prior to Closing, and Buyer
has full power and authority to execute and deliver this Agreement and has been
fully authorized to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement by buyer,
has been duly authorized by all necessary company action prior to Closing and
has all power and authority to execute and deliver this Agreement of behalf of
Buyer. This Agreement has been duly executed and delivered by buyer and
constitutes a valid and legally binding obligation of Buyer, enforceable in
accordance with its terms.
Article 5.3 Noncontravention
The
execution and delivery of this Agreement by Buyer and the consummation by Buyer
of the transactions contemplated hereby will not violate or conflict with any
provision of the articles of organization or limited partnership agreement of
Buyer, or result in any breach or constitute any default under any contract,
indenture, mortgage, lease, note or other agreement or instrument to which Buyer
is subject or is a party.
Article 5.4 Governmental
Approvals
(a) Buyer is
not subject to any order, judgment or decree which would prevent the
consummation of the transaction contemplate hereby.
(b) No claim,
legal action, suit, arbitration, governmental investigation, action,
or other legal or administrative proceeding is pending or, to the knowledge of
Buyer, threatened against Buyer which would enjoin
or delay the transaction contemplated hereby.
ARTICLE
6
AGREEMENT
OF ALL PARTIES
Article 6.1 Notice and
Consents
Xxxxxx
will give any notices to third parties, and will us its best efforts to obtain
any consents of any third parties required in connection with the consummation
of the transactions contemplated by this Agreement.
Article 6.2 Operation of the
Business
Except as
otherwise contemplated by this Agreement, Xxxxxx will continue to operate the
business in a manner consistent with the past practices of the business, to
operate and conduct the business in the ordinary course, and not to, without the
prior written approval of Buyer or as otherwise contemplated by this Agreement,
take any of the following actions:
(a) sell,
lease, transfer or otherwise dispose or encumber any of the Corporate Assets
other than in the ordinary course of business;
(b) cancel
any material debts or waive any material claims or rights pertaining to the
Corporate Assets;
(c) grant any
increase in the compensation of officers, or employees, except for increases in
the ordinary course of business and consistent with past practice;
(d) make any
capital expenditures or commitment in excess of $ 10,000 other man
(i) in the ordinary course of business, or (ii) pursuant to existing
commitments or business plans;
(e) except
with respect to endorsement of negotiable instruments in the ordinary course of
its business, incur, assume or guarantee any indebtedness for borrowed
money;
(f) Agree,
whether in writing or otherwise, to do any of the foregoing.
Article 6.3 Preservation of
Business
Xxxxxx
will keep the business and properties substantially intact, including its
present operations, physical facilities, working conditions, insurance policies,
and relationships with lessors, licensors, suppliers, customers, and
employees.
Article 6.4 Confidentiality
Xxxxxx
will treat and hold as such all of the Confidential Information, refrain from
using any of the Confidential Information except in connection with this
Agreement, and deliver promptly to Buyer or destroy, at the request and option
of Buyer, all tangible embodiments (and all copies) of the Confidential
Information which are in her possession, hi the event that Xxxxxx is requested
or required pursuant to written or oral question or request for information or
documents hi any legal proceeding, interrogatory, subpoena, civil investigative
demand, or similar process to disclose any Confidential Information, Xxxxxx will
notify Buyer promptly of the request or requirement so that Buyer may seek an
appropriate protective order or waive compliance with tile provisions of this
Section 6.4. If, in the absence of a protective order, or the receipt of a
waiver hereunder, Xxxxxx is, on the advice of counsel, compelled to disclose any
Confidential Information to any tribunal or else stand liable for contempt,
Xxxxxx may disclose the Confidential Information to the tribunal; provided,
however, that Xxxxxx shall use its best efforts to obtain an order or other
assurance that confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed. The foregoing provision shall
not apply to any Confidential Information which is generally available to the
public immediately prior to the time of disclosure unless such Confidential
Information is so available due to the actions of Xxxxxx. The forgoing shall be
in addition to and not in abrogation or substitution of any other agreement to
which is Xxxxxx is a party requiring such Selling Party to maintain the
confidentiality of any confidential information of Buyer.
Article 6.5 Mutual
Cooperation
Xxxxxx
and Buyer shall cooperate fully with each other to the extent reasonable in
connection with the foregoing:
(a) Xxxxxx
and Buyer shall notify and keep the other advised as to any litigation or
administrative proceeding pending and known to such party, or to its knowledge
threatened, which challenges the transactions contemplated hereby. Subject to
the provisions of this Agreement, Xxxxxx and Buyer shall not take any action
inconsistent with their obligations under this Agreement or which would
materially hinder or delay the consummation of the transactions contemplated by
this Agreement.
(b) Xxxxxx
and Buyer shall do or procure to be done all such further acts and things, and
execute or procure the execution of all such other documents, as such other
party may from time to time reasonably require, whether on or after Closing, for
the purpose of giving to such other party the full benefit of all the provisions
of this Agreement.
Article 6.6 Public
Disclosures
Prior to
the Closing Date, no party to this Agreement shall issue any press release or
make any other public disclosures concerning this transaction or the contents of
this Agreement without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed. Notwithstanding the
above, nothing in this Section 6.6 shall preclude any party (or Person
controlling such party) from making disclosures required by law or regulation or
necessary and proper in conjunction with the filing of any tax return or other
document required to be filed with any federal, state or local governmental
body, authority or agency.
Article 6.7 Taxes
Following
the Closing, Buyer shall provide information and access to systems acquired, and
personnel hired, from the business, as reasonably requested by Xxxxxx, to enable
Xxxxxx to prepare and file income tax returns for the business for any period on
or before the Closing Date.
Article 6.8 Transition
Xxxxxx
will not take any action that is designed or intended to have the effect of
discouraging any lessor, licensor, customer, supplier, or other business
associate of the business from maintaining the same business relationships with
the business after the Closing as it maintained will the business prior to the
Closing. Xxxxxx will refer all customers inquiries relating to the business to
Buyer from and after the Closing.
ARTICLE
7
CONDITIONS
Article 7.1 Conditions to the Obligations of
Buyer
The
obligations of Buyer to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction or waiver at or prior to the
Closing Date of the following conditions:
Accuracy of Representations
and Warranties and Compliance with Obligations
The
representations and warranties of the Selling Parties contained hi this
Agreement shall be true and correct in all material respects at and as of the
Closing Date with the same force and effect as though made at and as of that
time. Xxxxxx has performed and complied in all material
respects will all of her obligations required by this Agreement to be performed
or complied with at or prior to the Closing Date.
No Material Adverse
Change
Between
the date hereof and the Closing Date, there shall have been no event or
occurrence which results or could reasonably be expected to result in a Material
Adverse Effect.
Consents, Authorizations,
etc
All
consents, authorizations, orders or approvals of and filings or registrations
with, and any permits, licenses or other authorizations required by law, any
applicable governmental entity or third Person, that are required for or in
connection with, the execution and delivery of this Agreement by Xxxxxx and the
consummation by Xxxxxx of the transaction contemplated hereby shall have been
obtained or made.
Seller’s
Deliverables
Seller
shall deliver all of Seller deliverables as set forth hi Section
8.2.
Article 7.2 Conditions to the
Obligations of Selling Parties
The
obligation of Xxxxxx to consummate the transaction contemplated by this
Agreement shall be subject to the satisfaction or waiver at or prior to the
Closing Date of the following conditions:
Accuracy of Representations
and Warranties
and Compliance with Obligations
The
representations and warranties of Buyer contained hi this Agreement shall be
true and correct in all material respects at and as of the Closing Date with the
same force and effect as though made at and as of that time except (i) that
those representations and warranties which address matters only as of a
particular date shall remain true and correct as of such date, and (ii) those
representations and warranties which by then- terms are qualified
by
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materiality
shall be true in all respects. The Buyer shall have performed and complied
in all material respects will all of their obligations required by this
Agreement to be performed or complied with at or prior to the Closing
Date.
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Buyer’s
Deliverables
Buyer
shall deliver all of Buyer deliverables as set forth in Section
8.2.
Article 7.3 Conditions to
Obligations of
Bayer and Selling Parties
The
respective obligations of Buyer and Xxxxxx to consummate the transaction
contemplated by this Agreement shall be subject to the satisfaction or waiver at
or prior to the Closing Date of the following conditions:
No Injunction, Etc.
(a) At the
Closing Date, there shall be no injunction, restraining order or decree of any
nature of any court or governmental agency or body of competent relating hereto
on behalf of Buyer; and (ii) certifying those matters set forth in Section
7.2(a) above; and,
(b) Such
other documents and instruments as counsel for Seller believes reasonably
necessary to consummate the transactions described herein;
(c) The stock
certificate issued to Buyer to be held by Seller as security for the payment of
all amounts owing under this Agreement. Buyer agrees that during the tune that
any monies are owing under this Agreement to Seller no other shares of stock
will be issued for any reason without the written consent of Seller and without
the newly issued shares becoming additional security for the payment of all
remaining monies to Seller
ARTICLE
8
CLOSING
Closing
Date
Unless
this Agreement shall have been terminated pursuant to Article X hereof, the
Closing of the transactions contemplated by this Agreement (the Closing) shall
take place at the offices of Stevens, Edwards, Xxxxxxx & Xxxxxxxxx, P.C. 000
Xxxxx Xxxxxxxx Xx., Xxxxxxxx, Wyoming, at 2:00 P.M. October 30,
2007.
Article 8.1 Buyer’s
Deliveries
At the
Closing, Buyer shall deliver, or cause to be delivered, to the Selling Parties
the following, in form and substance reasonably acceptable to the Selling
Parties:
(a) A copy of
the Certificate of Organization of Buyer, as amended, certified by the Secretary
of Buyer;
(b) A copy of
the resolutions duly adopted by the Board of Managers of Buyer, evidencing the
authorization of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Buyer, certified by the
duly authorized keeper of the minutes and other records of Buyer;
(c) Payment
of the Purchase Price along with the executed promissory note and security
agreement;
(d) A duly
executed copy of the Employment Agreement and Consulting Agreement by and
between Xxxxxx and Buyer in the form attached hereto as Exhibit H;
(e) A
certificate of an officer of Buyer (i) certifying the names and signatures of
the officers of Buyer authorized to sign this Agreement and the other
agreements
Article 8.2 Selling Party’s
Deliveries
At the
Closing, Xxxxxx shall deliver, or cause to be delivered, to Buyer the following,
in form and substance reasonably acceptable to Buyer:
(a) All stock
certificates held by Xxxxxx in the business;
(b) A copy of
the certificate of Incorporation for the business, as amended, certified by an
officer of the applicable party;
(c) A
certificate of an officer of the business certifying the names and signatures of
the officers of such party authorized to sign this Agreement and any other
agreements relating hereto;
(d) A copy of
the resolutions duly adopted by the Board of Directors and shareholder of the
business evidencing the authorization of the execution and delivery of this
Agreement by such party, and the consummation of the transactions contemplated
hereby by such party, certified by an officer of the applicable
party;
(e) A duly
executed copy of the Employment Agreement and Consulting Agreement hi the form
of Exhibit H attached hereto; and,
(f) Such
other documents and instruments as counsel for Buyer believes reasonably
necessary to consummate the transactions described herein.
The
address of any party hereto may be changed by a notice in writing given in
accordance with the provisions hereof.
ARTICLE
9
INDEMNIFICATION
Article 9.1 Indemnification by Selling
Parties
(a) Subject
to the limitations provided herein, Xxxxxx shall indemnify and hold harmless
Buyer and its Affiliates (collectively, the “Buyer Indemnitees”) to the extent
set forth in this article DC in respect of any loss that any of them may suffer,
sustain, incur or become subject to, arising out of, based upon or resulting
from or on account of each and all of the following:
i. The
breach or falsity of any representation or warranty made by Xxxxxx in this
Agreement, including the documents, instruments and agreements to be executed
and/or delivered by Xxxxxx pursuant hereto.
ii. The
breach of any covenant or Agreement made by Xxxxxx hi this Agreement, including
the documents, instruments and agreements to be executed and/or delivered by
Xxxxxx pursuant hereto.
iii. Any
Employee Benefit Plan Liabilities, other man those Employee Benefit Plan
Liabilities specifically assumed by Buyer.
iv. Any
claims for Taxes against Xxxxxx, the Purchased Assets, or the Business assessed
during or attributable to any taxable period ending on or prior to the Closing
Date.
v. Any
currently pending or threatened litigation involving Xxxxxx, including, without
limitations, the matters, facts and circumstances listed or described on
Schedule F.
vi. The use
or ownership of the Purchased Assets or operation of the Business prior to the
Closing Date.
(b) Xxxxxx
shall have no obligation to indemnify Buyer for consequential damages, special
damages, incidental damages, indirect damages, punitive damages, lost profits or
similar items.
jurisdiction
that is in effect that restrains or prohibits the consummation of the purchase
by, or the transfer by Xxxxxx to Buyer of the Purchased Assets and there shall
be no claim, legal action, arbitration or other administrative action pending
seeking so to do; provided, however, that the benefits of this Section 7.3 shall
not be available to a party whose failure to fulfill its obligations pursuant to
this Agreement shall have been the cause of, or shall have resulted in, such
injunction, restraining order or decree.
Article 9.2 Indemnification by
Buyer
Buyer
shall indemnify and hold harmless Xxxxxx to the extent set forth in this Article
IX in respect of any loss that she may at any time, directly or indirectly,
suffer, sustain, incur or become subject to, arising out of, based upon or
resulting from or on account of each and all of the following:
(a) The
breach or falsity of any representation or warranty made by Buyer in this
Agreement, including the documents, instruments and agreements to be executed
and/or delivered by Buyer pursuant hereto.
(b) The
breach of any covenant or agreement made by Buyer in this Agreement, including
the documents, instruments and agreements to be executed and/or delivered by
Buyer pursuant hereto.
Agreement
for Purchase and Sale of Stock
Occupational
Testing Inc. and Labwire Inc.
Page
11
(c) The use
or ownership of the Purchased Assets or the operation of the Business by Buyer
after the Closing Date.
Article 9.3 Survival of Representations and
Warranties
The
representation and warranties of Xxxxxx contained hi this Agreement, and
documents, instruments, and agreements executed or delivered pursuant hereto,
shall survive the consummation of the transactions contemplated in this
Agreement and shall continue in full force and effect after the
Closing.
Notices
of Claims. In the event of the filing of any claims as described above, notices
of the claims shall be sent to:
Xxxxxxx
Xxxxxx
0000
Xxxxxxx Xxxxx
Xxxxxxxx,
Xx 00000
with a
copy to:
Xxxxxx
Xxxxxx
00000
Xxxxxxxx Xxxxx, Xxxxx 0
Xxxxxxx,
XX 00000
Article
9.4 Further
Assurances
Upon
request from time to time, Xxxxxx shall execute and deliver all documents, take
all rightful oaths, and do all other acts that may be reasonably necessary or
desirable, hi the reasonable opinion of counsel for Buyer to perfect or record
the title of Buyer, or any successor of Buyer, to the stock or corporate assets
under this Agreement, or to aid in the prosecution, defense, or other litigation
of any rights arising from said transfer (provided that Buyer shall reimburse
Xxxxxx for all out-of-pocket costs and expenses resulting from any such
request).
Article 9.5 Expenses
Subject
to Section G, Xxxxxx and Buyer shall each pay their respective expenses (such as
legal, consultant and accounting fees) incurred in connection with the
origination, negotiation, execution and performance of this
Agreement.
Article 9.6 Benefit;
Assignments
This
Agreement shall inure to the benefit of and be binding on the parties hereto and
their respective successors and permitted assigns. Buyer may assign its rights
under this Agreement to any Subsidiary or Assignee of Buyer without the consent
of Xxxxxx; provided, however, such assignments shall not abrogate or diminish
Buyer’s obligations under this Agreement. Otherwise, this Agreement shall not be
assigned by any party hereto without the express prior written consent of the
other parties, and any attempted assignment, without such consents, shall be
null and void.
Article 9.7 Amendment;
Waiver
This
Agreement may be amended, supplemented or otherwise modified only by a written
instrument executed by the parties hereto. No waiver by either party of any of
the provisions hereof shall be effective unless explicitly set forth in writing
and executed by the party so waiving. Except as provided in the preceding
sentence, no action taken.
IN
WITNESS WHEREOF, the parties have caused this Purchase Agreement to be duly
executed as of the date first above written.
BUYER
Labwire,
Inc.
BY: //s//Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx, President
SELLER
Xxxxxxx
Xxxxxx
By:/s/ Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx, Seller
