EXHIBIT 10.1
JOINT VENTURE AGREEMENT
[FORMATION AND OPERATION OF BRIDGETECH CRO, INC. AND AMCARELABS CHINA, INC.]
THIS JOINT VENTURE AGREEMENT (this "AGREEMENT"), effective as of April 10,
2005, is made by and between BRIDGETECH HOLDINGS INTERNATIONAL, INC., a Delaware
corporation ("BRIDGETECH"), and AMCARE LABS INTERNATIONAL, INC., a Delaware
corporation ("AMCARE," together with Bridgetech, the "PARTIES").
WITNESSETH
WHEREAS, AMCARE is an affiliate of Xxxxx Xxxxxxx International Medical
Laboratories;
WHEREAS, AMCARE is in the business of providing laboratory medicine and
pathology services in select global markets;
WHEREAS, BRIDGETECH has developed a network of research and development,
manufacturing and distribution relationships in China;
WHEREAS, BRIDGETECH and AMCARE wish to form two joint ventures, each in
the form of a new corporation to be organized under the Delaware General
Corporation Law, for the respective purposes set forth below:
a. the development and operation of a clinical research
organization within China (including Hong Kong) and Taiwan
("NEWCO1"),
b. the development and operation of clinical diagnostic anatomic
and clinical pathology labs within China (including Hong Kong)
and Taiwan ("NEWCO2");
WHEREAS, Newco1 and Newco2 will each be jointly owned by BRIDGETECH and
AMCARE in accordance with the provisions of this Agreement and the Related
Agreements (defined below), and will be operated in accordance with the terms of
this Agreement and the Related Agreements (defined below).
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties agree as follows.
1. The Project.
1.1 Purpose. The purpose of this Agreement is to set out the basis on
which the Parties will:
(a) form Newco1 to develop, own and operate a CRO within the
People's Republic of China, Hong Kong and the Republic of
China (Taiwan) (the "TERRITORY"). A "CRO" is an organization
that assists biotechnology companies in the research, testing
and approval process for products and technologies;
(b) form Newco2 to develop, own and operate MTFs within China. An
"MTF" is a medical testing facility that provides a full range
of anatomic and clinical pathology testing services; and,
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(c) at such time as BRIDGETECH and AMCARE may mutually agree,
expand the activities of Newco1 and/or Newco2 (the "ADDITIONAL
BUSINESSES").
(all such activities being referred to collectively as the
"PROJECT").
2. Related Agreements; Timing.
2.1 Related Agreements.
(a) The implementation of the Project will be accomplished in
accordance with the terms of this Agreement and also the
agreements and other documents referred to in this Section
2.1(a) (collectively, the "RELATED AGREEMENTS"). The parties
may enter into additional agreements related to the Project
from time-to-time, which additional agreements shall become
"Related Agreements" if the Parties mutually agree to
designate them as such. This Agreement and the Related
Agreements are sometimes referred to as the "PROJECT
DOCUMENTS".
(i) Newco1 Charter Documents. The Newco1 Charter Documents,
as described in Section 3.1(a).
(ii) Newco2 Charter Documents. The Newco2 Charter Documents,
as described in Section 3.1(b).
(iii) Newco1 Stockholders Agreement. The Newco1 Stockholders
Agreement, as described in Section 3.2(b).
(iv) Newco2 Stockholders Agreement. The Newco2 Stockholders
Agreement, as described in Section 3.2(b).
(v) Newco1 Management Agreement. The Newco1 Management
Agreement, as described in Section 3.5(a).
(vi) Newco2 Management Agreement. The Newco2 Management
Agreement, as described in Section 3.5(a).
(b) Construction and Interpretation. The Parties acknowledge that
the Related Agreements are intended to be consistent with the
intent and purpose of this Agreement but agree that to the
extent that the provisions of this Agreement conflict with the
provisions of any Related Agreement, such Related Agreement
will control the relationship of the Parties under that
Related Agreement.
2.2. Timing.
(a) Closing: The Newco1 Certificate and the Newco2 Certificate
shall be filed with the Secretary of State of the State of
Delaware by BRIDGETECH within 45 days following the date of
this Agreement. The closing of the transactions contemplated
herein (the "CLOSING") shall occur on such date (the "CLOSING
DATE"), at such time and at such location as the Parties may
agree. At the Closing:
(i) The appropriate Parties shall execute the Newco1
Management Agreement and the Newco2 Management
Agreement;
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(ii) BRIDGETECH and AMCARE will deliver to one another the
Officer's Certificates described in Section 2.2(c)
below; and,
(iii) BRIDGETECH and AMCARE shall take such other actions and
deliver such other documents and instruments as may be
necessary or appropriate to effectuate the transactions
contemplated herein.
(b) Pre-Closing Activity of Newco 1 and Newco 2. Prior to the
Closing, it is understood that Newco1 and Newco2 shall not (i)
conduct any business operations whatsoever, or (ii) enter into
any contract or agreement of any kind, acquire any assets or
incur any liabilities, in each case except as may have been
approved in writing by BRIDGETECH and AMCARE. If this
Agreement is terminated prior to the Closing, Newco1 and
Newco2 shall be dissolved.
(c) Conditions to Closing. The obligation of each Party to
consummate the Closing is subject to satisfaction of each of
the following additional conditions as of immediately prior to
the Closing:
(i) Newco1 and Newco2 shall have issued stock certificates
representing the Bridgetech Shares to BRIDGETECH and
shall have issued stock certificates representing the
Amcare Shares to AMCARE;
(ii) the Parties shall have executed the Newco1 Stockholders
Agreement and the Newco2 Stockholders Agreement;
(iii) the Parties shall have negotiated mutually-satisfactory
Management Agreements for Newco1 and Newco2;
(iv) there shall be no pending or threatened litigation
regarding the Project Documents, Newco1 or Newco2;
(v) there shall have been no material adverse change in the
business, properties, financial conditions or prospects
of either Party, Newco1 or Newco2 between the date
hereof and the Closing Date.
Each of AMCARE and BRIDGETECH shall have delivered to one
another a certificate from an authorized officer certifying
that (A) the representations and warranties of such Party set
forth in this Agreement are true and correct as of the Closing
Date and (B) the conditions set forth in Sections 2.2(c)(iv) -
(v) above have been satisfied (the "OFFICERS' CERTIFICATES").
(d) Termination Prior to the Closing. If the Closing shall not
have occurred on or prior to June 30, 2005, this Agreement and
all obligations of the Parties hereunder, except the
obligations under this Section 2.2(d) and Sections 8, 9, 10,
11 and 12.7, shall terminate, unless extended by mutual
agreement of the Parties; provided, however, that such
termination shall not constitute a waiver of any rights any
Party have by reason of a breach of this Agreement.
3. Newco1 and Newco2.
3.1 Formation.
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(a) Newco1 shall be formed by the filing of the Certificate of
Incorporation in substantially the form attached hereto as
Exhibit A (the "NEWCO1 CERTIFICATE") with the Secretary of
State of the State of Delaware. The bylaws of Newco1 shall be
in substantially the form attached hereto as Exhibit B (the
"NEWCO1 BYLAWS," together with the Newco1 Certificate, the
"NEWCO1 CHARTER DOCUMENTS").
(b) Newco2 shall be formed by the filing of the Certificate of
Incorporation in substantially the form attached hereto as
Exhibit A (the "NEWCO2 CERTIFICATE") with the Secretary of
State of the State of Delaware. The bylaws of Newco2 shall be
in substantially the form attached hereto as Exhibit B (the
"NEWCO2 BYLAWS," together with the Newco2 Certificate, the
"NEWCO2 CHARTER DOCUMENTS").
3.2 Ownership.
(a) Ownership. Each of Newco1 and Newco2 shall be authorized to
issue one thousand (1,000) shares of common stock, par value
$.001 per share. BRIDGETECH shall initially own six hundred
seventy (670) shares of common stock of Newco1 (the
"BRIDGETECH NEWCO1 SHARES") and one hundred eighty (180)
shares of common stock of Newco2 (the "BRIDGETECH NEWCO2
SHARES," together with the Bridgetech Newco1 Shares, the
"BRIDGETECH SHARES"). AMCARE shall initially own three hundred
thirty (330) shares of common stock of Newco1 (the "AMCARE
NEWCO1 SHARES") and eight hundred twenty (820) shares of
common stock of Newco2 (the "AMCARE NEWCO2 SHARES," together
with the AMCARE Newco1 Shares, the "AMCARE SHARES"). At any
given time, the "OWNERSHIP PERCENTAGE" of each Party in Newco1
and Newco2 shall be determined by dividing the number of
shares of common stock of such entity owned by such Party by
the aggregate number of shares of capital stock of such entity
outstanding.
(b) Restrictions on Transfer. Prior to Closing, BRIDGETECH and
AMCARE shall enter into a stockholders agreement with respect
to Newco1 (the "NEWCO1 STOCKHOLDERS AGREEMENT") and a
stockholders agreement with respect to Newco2 (the "NEWCO2
STOCKHOLDERS AGREEMENT"), each in substantially the form
attached hereto as Exhibit C. Each person thereafter seeking
to own or acquire shares of Newco1 or Newco2 will be required
to join the Newco1 Stockholders Agreement or the Newco2
Stockholders Agreement, as applicable, as a condition to the
issuance of shares to such person, and shall be subject to all
the rights and obligations set forth therein. No holder of any
equity interest in Newco1 or Newco2 may sell, transfer,
assign, pledge or grant or permit any security interest, lien,
charge or other encumbrance upon such equity interest without
the prior approval of both BRIDGETECH and AMCARE, except as
expressly permitted by the Stockholders Agreement.
3.3 Management.
(a) Composition of the Boards of Directors.
(i) Newco1 will be managed by a board of directors (the
"NEWCO1 BOARD"). The Newco1 Board will consist of three
members, of whom two members will be appointed by BRIDGETECH
(the "BRIDGETECH NEWCO1 DIRECTORS") and one member will be
appointed by AMCARE (the "AMCARE NEWCO1
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DIRECTOR"; the BRIDGETECH Newco1 Directors and the AMCARE
Newco1 Director are referred to collectively as the "NEWCO1
DIRECTORS"). The initial BRIDGETECH Newco1 Directors shall be
XXXXXXX XXXX and XXXXXX X. XXXX III. The initial AMCARE Newco1
Director shall be XXXXX XXXXXXXXX. The Party entitled to
appoint a director shall have the power to remove such
director, and any vacant directorship on the Board shall be
filled by a person nominated by the Party entitled to appoint
such director. BRIDGETECH and AMCARE shall each vote their
shares of Newco1 common stock in favor of the director
nominees of the other Party.
(ii) Newco2 will be managed by a board of directors (the
"NEWCO2 BOARD"). The Newco2 Board will consist of three
members of whom two members will be appointed by AMCARE (the
"AMCARE NEWCO2 DIRECTORS") and one member will be appointed by
BRIDGETECH (the "BRIDGETECH NEWCO2 DIRECTOR"; the AMCARE
Newco2 Directors and the BRIDGETECH Newco2 Director are
referred to collectively as the "NEWCO2 DIRECTORS"). The
initial AMCARE Newco2 Directors shall be XXXXX XXXXXXXXX and
another person to be designated by Amcare. The initial
BRIDGETECH Newco2 Director shall be XXXXXXX XXXX. The Party
entitled to appoint a director shall have the power to remove
such director, and any vacant directorship on the Board shall
be filled by a person nominated by the Party entitled to
appoint such director. BRIDGETECH and AMCARE shall each vote
their shares of Newco2 common stock in favor of the director
nominees of the other Party.
(b) Voting Rights of Directors. Each Newco1 Director and Newco2
Director will have one vote on all matters requiring the
approval or action of the Newco1 Board or the Newco2 Board,
respectively.
(c) Majority Vote; Supermajority Requirements. Any action or
consent of the Board will require the approval of a majority
of the Board. In addition, the following actions will require
the approval of both AMCARE and BRIDGETECH:
(i) Adopting or effecting any plan of sale, merger,
consolidation, dissolution or recapitalization of Newco1
or Newco2, as applicable;
(ii) Offering for sale or selling all or substantially all of
the assets of Newco1 or Newco2, as applicable;
(iii) Directly or indirectly issuing, selling or delivering
any equity interest in Newco1 or Newco2, as applicable;
(iv) Effecting any dividend or other distribution of cash or
property to any stockholder of Newco1 or Newco2, as
applicable;
(v) Amending or restating the Certificate of Incorporation,
bylaws or other documents governing the formation and
organization of Newco1 or Newco2, as applicable,
including without limitation the Newco1 Stockholders
Agreement and the Newco2 Stockholders Agreement;
(vi) Purchasing, leasing or otherwise acquiring any asset or
group of assets, in an aggregate amount of consideration
in excess of $50,000, or purchasing or otherwise
acquiring any direct or indirect equity interest in
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any other entity, or all or substantially all of the
assets of any other person or entity;
(vii) Engaging in any transaction or series of transaction
with any affiliate of any Party involving consideration
in excess of $50,000, other than the transactions
specifically contemplated by the Management Agreements
or the Stockholders Agreements;
(viii) Creating or incurring indebtedness in an aggregate
amount in excess of $50,000;
(ix) Material revisions to the Business Plan or Operating
Budget of Newco1 or Newco2, as applicable;
(x) Increasing the size of the Newco1 Board or the Newco2
Board under any circumstances; or,
(xi) Commencing a voluntary bankruptcy case, or any similar
action.
(d) Quorum. A quorum for any meeting of the Board will consist
of a majority of the Board and shall include a director
designated by each Party.
(e) Officers.
(i) The officers of Newco1 shall be appointed by the
Newco1 Board and will include a President and a
Secretary, as set forth in the Newco1 Bylaws.
(ii) The officers of Newco2 shall be appointed by the
Newco2 Board and will include a President and a
Secretary, as set forth in the Newco2 Bylaws.
(f) Additional Provisions. The Charter Documents of Newco1, the
Charter Documents of Newco2, the Newco1 Management
Agreement and the Newco2 Management Agreement will contain
additional provisions with respect to the management of
Newco1 and Newco2, respectively, and related matters that
are consistent with this Agreement as the Parties may
agree.
3.4 Capitalization. Neither Party will be permitted or required to
make any contributions to Newco1 or Newco2 except in accordance
with the following provisions:
(a) Total Initial Capitalization. The Parties acknowledge and
agree that the initial capitalization of Newco1 shall be
Thirty Thousand Dollars ($30,000) (the "INITIAL
CONTRIBUTION"). This amount shall be contributed by
BRIDGETECH on or shortly after May 10, 2005. This initial
capitalization has been mutually agreed upon by the
Parties.
(b) Subsequent Bridgetech Investment. BRIDGETECH hereby agrees
to contribute an additional Seventy Thousand Dollars
($70,000) to Newco1.
(c) Capitalization. If the Parties agree that either Newco1 or
Newco2 requires additional capitalization, they will
consult with each other for the purpose of
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agreeing on the amount of additional capital needed, the
appropriate portions that should be represented by debt and
equity and whether such additional capital will be provided by
the Parties or a third party.
(d) Other Provisions. The Newco1 Charter Documents and the Newco2
Charter Documents will contain such additional provisions with
respect to the capitalization of Newco1 and Newco2 and the
distribution of income and related matters that are consistent
with this Agreement as the Parties may agree.
3.5 Operations and Accounting Matters.
(a) Newco1 will be responsible for the operation of a CRO in the
Territory, and Newco2 will be responsible for the operation of
MTFs in the Territory, and each will be responsible for the
conduct of any Additional Business undertaken by them at the
direction of BRIDGETECH and AMCARE in compliance with
applicable law and contractual obligations.
(i) Operational control of all activities of Newco1 and
Newco2 will be exercised by its management and not by
its stockholders; provided, however, that Newco1 and
Newco2 shall assign management functions to AMCARE, or
otherwise seek managerial advice from Amcare, to the
extent agreed by AMCARE, BRIDGETECH and Newco1 and Newco
2, under separate management agreements (the "NEWCO1
MANAGEMENT AGREEMENT" and the "NEWCO2 MANAGEMENT
AGREEMENT").
(ii) The name of Newco1 shall be "Bridgetech CRO, Inc."
(iii) The name of Newco2 shall be "AmcareLabs China, Inc."
(iv) The Parties shall cause the Newco1 Board and the Newco2
Board to cause Newco1 and Newco2 comply with any legal
requirements applicable to Newco1 and Newco2,
respectively, under the laws, rules and regulations
applicable in the Territory or the United States.
(b) BRIDGETECH, AMCARE and Newco 1 shall be entitled to advertise,
publicize and otherwise represent to third parties the fact
that Newco1 is managed by AMCARE, which is affiliated with
Xxxxx Xxxxxxx International Medical Laboratories, in any
correspondence, communications (verbal, printed or otherwise),
promotional and marketing materials or otherwise. To the
extent necessary to accomplish the foregoing provisions,
AMCARE will license or sublicense any relevant intellectual
property rights to BRIDGETECH and Newco1.
(c) BRIDGETECH, AMCARE and Newco2 shall be entitled to advertise,
publicize and otherwise represent to third parties the fact
that AMCARE is affiliated with Xxxxx Xxxxxxx International
Medical Laboratories in any correspondence, communications
(verbal, printed or otherwise), promotional and marketing
materials or otherwise. To the extent necessary to accomplish
the foregoing intent of the parties, AMCARE will license or
sublicense any relevant intellectual property rights to
BRIDGETECH and Newco2.
(d) The fiscal years of Newco1 and Newco2 shall end on December
31.
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(e) Newco's financial accounts will be maintained in accordance
with US generally accepted accounting principles. Each Party
will be entitled to require Newco1 and Newco2 to provide to it
all such information as may be required for the purposes of
the preparation of their respective accounts in accordance
with such generally accepted accounting principles and the
requirements of the law applicable in their respective
jurisdictions. Each Party will be entitled to receive all such
information relating to the affairs of Newco1 and Newco2 as
may be requested at any time and from time to time by any
Party. Newco1 and Newco2 will provide to the Parties regular
and periodic reports on the business, operations and financial
and other affairs of Newco1 and Newco2.
(f) Newco1 and Newco2 shall each keep their funds separate from
those of any other person and shall maintain its own
depository, banking and similar accounts.
(g) Any transactions or agreements between Newco1 or Newco2 and
any of their affiliates, including BRIDGETECH and AMCARE, will
be entered into on an arms'-length basis upon terms that are
(i) no less favorable to Newco1 or Newco2, respectively, than
would apply in a transaction with a person that is not an
affiliate, or (ii) subject to Section 3.3(e)(vii), fully
disclosed to and approved by the Board.
(h) BRIDGETECH and AMCARE shall cooperate with one another to
develop business plans and operating budgets for Newco1 and
Newco2 by June 15, 2005.
3.6 Compliance with Laws Regarding Payments. None of Xxxxx0, Xxxxx0 or
any of their officers and directors, nor anyone for whose acts or
defaults they may be vicariously liable or anyone acting on behalf
of any of them, including any Party hereto, shall make any payments
in violation of applicable law in connection with or in any way
relating to or affecting this Agreement or the business to be
carried on by Newco1 or Newco2, nor shall such persons make any
payments in violation of any applicable code of conduct of either
BRIDGETECH or AMCARE, provided that such code of conduct is
commercially reasonable. The Parties acknowledge that the laws of
the United States of America, including the Foreign Corrupt
Practices Act, prohibit any direct or indirect payment of money or
anything of value to any governmental official, international
organization, political Party or candidate for political office for
the purpose of obtaining or retaining business. The Parties
represent and warrant to each other that in the performance of their
obligations under this Agreement or otherwise in connection with
this Agreement they have not made and agree that they will not make
any such prohibited payment.
4. Restrictions on the Activities of BRIDGETECH and AMCARE. The Parties will
be subject to the following provisions with respect to the activities of
Newco1 and Newco2:
4.1 Exclusive Dealings in the Territory. Except to the extent prohibited
by applicable law, rules and regulations:
(a) Within the Territory, Newco1 shall be the exclusive provider
of CRO services to BRIDGETECH, AMCARE and their Affiliates
during the Project Term.
(b) Within the Territory, Newco2 shall be the exclusive provider
of clinical diagnostic anatomic and clinical pathology
laboratory services to BRIDGETECH, AMCARE and their Affiliates
during the Project Term.
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4.2 Restrictions.
(a) In furtherance of the foregoing, during the term of this
Agreement, BRIDGETECH and AMCARE, will not, except in
situations to which the exclusivity provisions in Section 4.1
above do not apply because of applicable law, rules or
regulations:
(i) establish or operate, directly or indirectly, a
pathology lab or clinical research organization in the
Territory, other than through Newco1 and Newco2;
(ii) own any interest in, directly or indirectly, or
otherwise participate in, directly or indirectly, any
entity other than Newco1 or Newco2 that is involved in
any aspect of either a MTF or clinical research
organization in the Territory, or
(iii) compete, directly or indirectly, in the Territory in any
other activity undertaken by Newco1 or Newco2 in the
Territory.
4.3 Definitions. For purposes of this Section 4, the term "AFFILIATE"
means, for any person, any stockholder, partner, member or other equity owner of
such person or any other person directly or indirectly controlling, controlled
by or under common control with such person.
5. Term and Termination.
5.1 Term. Subject to Sections 5.3, the Project will have an initial term
of 10 years (the "PROJECT TERM"), at the end of which time the
Project Term may be extended for additional 1 year terms (all such
renewal terms shall be considered part of the "Project Term"),
unless either Party notifies the other no later than 60 days before
the end of the Project Term that it does not wish to extend the
Project Term.
5.2 End of Project Term. Unless the Project Term is terminated
previously pursuant to Section 5.3, at the end of the Project Term,
the Parties will enter into negotiations with each other for the
purpose of determining a price at which either Party would purchase
the other Party's shares in Newco1 and/or Newco2. Unless otherwise
agreed the purchase price will be payable in cash at closing. If the
Parties are unable to agree upon a price for either or both of
Newco1 and Newco2, then the Parties will jointly retain, or cause
Newco1 and Newco2, as applicable, to retain, an internationally
recognized investment bank or other financial advisor to solicit a
purchaser or purchasers for all the outstanding shares of Newco1
and/or Newco2, together or separately, each as a going concern with
all outstanding contracts, including those to which BRIDGETECH,
AMCARE or their affiliates are a Party, other than any outstanding
indebtedness of Newco1 and Newco2 to the Parties which will be
repaid upon sale. In the event that no bids are received within 180
days after the end of the Project Term for Newco1 or Newco2,
respectively, or if for any reason a proposed sale to a successful
bidder does not occur within 180 days after the end of the Project
Term, then the Parties will require that Newco1 and Newco2
(whichever receives no bids or remains unsold at the end of the
prescribed periods) be wound up in accordance with applicable law.
From the end of the Project Term until such time as Newco1 and
Newco2 are sold or wound up as provided above, this Agreement and
the Related Agreements shall remain in effect, and Newco1 and Newco2
shall be operated in the ordinary course of business.
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5.3 Termination upon default. A Party (the "NON-DEFAULTING PARTY") will
have the right to terminate this Agreement and the Related
Agreements (with respect to either or both of Newco1 and Newco2) by
notice (a "DEFAULT NOTICE") to the other Party (the "DEFAULTING
PARTY") upon the occurrence of an Event of Default with respect to
the other Party if such Event of Default is not cured by the
Defaulting Party within 60 days following receipt of the Default
Notice.
(a) "EVENT OF DEFAULT" means with respect to a Party:
(i) a material breach by the Defaulting Party of the
representations, warranties, covenants, or obligations
of such Party under any of the Project Documents, or any
other agreements between such Party and the
Non-Defaulting Party or such Party and Newco1 or Newco2.
(ii) The repudiation by that Party or its guarantor of its
obligations with respect to any performance not yet due:
(A) under this Agreement; or (B) under any Related
Agreement.
(iii) That Party or its guarantor experiences an Insolvency
Event.
(iv) The making by that Party or its guarantor of a
materially incorrect or misleading representation or
warranty under this Agreement or any Related Agreement.
(b) "INSOLVENCY EVENT" with respect to a Party means that either
that Party or its guarantor:
(i) is dissolved (other than pursuant to a consolidation,
amalgamation or merger);
(ii) becomes insolvent or is unable to pay its debts or
fails, or admits in writing its inability generally, to
pay its debts as they become due;
(iii) makes a general assignment, arrangement or composition
with or for the benefit of its creditors;
(iv) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any
other relief under any bankruptcy or insolvency law or
other similar law affecting creditors' rights, or a
petition is presented for its winding-up or liquidation;
(v) has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a
consolidation, amalgamation or merger);
(vi) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets;
(vii) has a receiver appointed to take possession of all or
substantially all its assets or has a distress,
execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or
substantially all its assets;
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(viii) causes or is subject to any event with respect to it
which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the
events specified in clauses (i) to (vii)
(inclusive); or
(ix) takes any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any
of the foregoing acts.
5.4 Remedies upon default. Upon a termination pursuant to Section 5.3,
the Non-Defaulting Party will have the right to exercise any one
or more of the following remedies:
(a) The Non-Defaulting Party shall have the right to purchase
from the Defaulting Party all of the shares of either or
both of Newco1 and Newco2 owned by the Defaulting Party
(including any shares held by its assignees), at a price
equal to
(i) the Ownership Percentage of the Defaulting Party,
multiplied by
(ii) the fair market value of the assets of Newco1 and/or
Newco2 after taking into account all liabilities of
Newco1 and/or Newco2 as determined by an
internationally recognized investment bank or other
financial advisor.
(b) The Non-Defaulting Party shall have the right to require
the Defaulting Party to purchase all shares in Newco1
and/or Newco2 held by the Non-Defaulting Party at a price
equal to
(i) the Ownership Percentage of the Non-Defaulting
Party, multiplied by
(ii) the fair market value of the assets of Newco1 and/or
Newco2 after taking into account all liabilities of
Newco1 and/or Newco2 as determined by an
internationally recognized investment bank or other
financial advisor.
(c) The Non-Defaulting Party shall have the right to require
the Parties to bid against each other to purchase the
outstanding shares in Newco1 and/or Newco2 held by the
other Party, or if no such bids are received, to require
Newco1 or Newco2 to be wound up in accordance with
applicable law.
(d) The Non-Defaulting Party shall have the right to recover
from the Defaulting Party damages arising from such Event
of Default pursuant to Section 10 hereof.
5.5 Non-Defaulting Party Right to Cure. Upon an Event of Default under
Section 5.3(a), the Non-Defaulting Party may, at any time prior to
giving a Default Notice, cure such Event of Default, and recover
from the Defaulting Party the costs of such cure.
5.6 Winding Up. If either Newco1 or Newco2 is required to be wound up
then, unless otherwise agreed and subject to applicable law,
(a) all outstanding liabilities of Newco1 or Newco2, as
applicable, will be paid in full or, if appropriate,
covered by adequate reserves set aside for such payment,
(b) all accrued and unpaid dividends or other distributions
will be paid,
(c) any remaining assets will (A) be distributed to the
stockholders in accordance with their Ownership Percentages
or (B) if such distribution is not practicable,
11
will be sold at fair market value with the proceeds being
distributed to the stockholders in accordance with their
Ownership Percentages.
6. Representations and Warranties.
6.1 Representations and warranties of BRIDGETECH. BRIDGETECH hereby
represents and warrants to AMCARE as follows:
(a) Status. BRIDGETECH is a corporation validly existing and in
good standing under the laws of the State of Delaware,
U.S.A. BRIDGETECH has all necessary power to enter into
this Agreement.
(b) Authorization, etc. The execution, delivery and performance
by BRIDGETECH of this Agreement has been authorized by all
necessary action on the part of such entity and its
stockholders, as the case may be, and does not and will not
(i) violate the organizational documents of BRIDGETECH
or any applicable law, or
(ii) contravene, conflict with, or result in a default
under any order or judgment of any court or other
governmental authority or any agreement to which
BRIDGETECH is a Party or by which any of its assets
may be bound.
(c) Governmental and Other Consents etc. Except as set forth in
Schedule 6.1(c), all governmental and other authorizations,
approvals, consents, notices, and filings, including any
approvals, consents or notices under contracts to which
BRIDGETECH is a Party, that are required to have been
obtained or submitted by BRIDGETECH prior to the execution
and delivery of this Agreement by BRIDGETECH have been
obtained and are in full force and effect. BRIDGETECH is
not aware of any reason why any other such authorizations,
approvals, consents, notices or filings that may be
required on the part of BRIDGETECH (or any other affiliate
that is or will be involved in this Project) in connection
with the Project will not be obtained in a timely manner
without the imposition of any conditions that would
adversely affect the ability of BRIDGETECH or any such
affiliate to participate in the Project as contemplated by
this Agreement.
(d) Enforceability. Its obligations and the obligations of
BRIDGETECH and any affiliate under this Agreement and any
other agreement entered into by such entity in connection
with this Agreement or the Project are and will be the
legal, valid, and binding obligation of BRIDGETECH or such
affiliate as the case may be, enforceable against such
entity in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, or
similar laws affecting creditors' rights generally and
subject as to enforceability, to equitable principle of
general application regardless of whether enforcement is
sought in a proceeding in equity or at law.
(e) Litigation. There are no suits, proceedings, judgments,
rulings or orders by or before any governmental authority,
court or arbitrator or any pending or threatened action or
proceeding affecting BRIDGETECH or any of their affiliates
before any governmental authority, court or arbitrator that
could reasonably be expected to materially and adversely
affect the financial condition or operations
12
of BRIDGETECH or the ability of BRIDGETECH and its
affiliates to perform their respective obligations under
this Agreement or any other agreement entered into by such
entity in connection with this Agreement or the Project, or
which purports to affect the legality, validity or
enforceability of this Agreement or any other such
agreement.
6.2 Representations and warranties of AMCARE. AMCARE hereby represents
and warrants to BRIDGETECH as follows:
(a) Status. AMCARE is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Delaware, U.S.A. AMCARE has all necessary power to enter
into this Agreement.
(b) Authorization, etc. The execution, delivery and performance
by AMCARE of this Agreement has been authorized by all
necessary action on the part of such entity and its
stockholders and does not and will not
(i) violate the organizational documents of AMCARE or
any applicable law, or
(ii) contravene, conflict with, or result in a default
under any order or judgment of any court or other
governmental authority or any agreement to which
AMCARE is a Party or by which any of its assets may
be bound.
(c) Governmental and Other Consents etc. Except as set forth on
Schedule 6.2(c), all governmental and other authorizations,
approvals, consents, notices, and filings, including any
approvals, consents or notices under contracts to which
AMCARE is a Party, that are required to have been obtained
or submitted by AMCARE prior to the execution and delivery
of this Agreement by AMCARE have been obtained and are in
full force and effect. AMCARE is not aware of any reason
why any other such authorizations, approvals consents,
notices or filings that may be required on the part of
AMCARE (or any other affiliate that is or will be involved
in this Project) in connection with the Project will not be
obtained in a timely manner without the imposition of any
conditions that would adversely affect the ability of
AMCARE or any such affiliate to participate in the Project
as contemplated by this Agreement.
(d) Affiliate Status. AMCARE is party to a written agreement
with Xxxxx Xxxxxxx International Medical Laboratories
pursuant to which AMCARE is designated as an "affiliate" of
Xxxxx Xxxxxxx International Medical Laboratories. Such
agreement is a legal, valid and binding obligation with
respect to each of AMCARE and Xxxxx Xxxxxxx International
Medical Laboratories. Neither Xxxxx Xxxxxxx Medical
Laboratories nor AMCARE is in breach of or in default under
such agreement. During the Project Term, AMCARE shall
notify BRIDGETECH in writing immediately upon the
termination or expiration of such agreement or any
amendment thereof or default thereunder that results or
could reasonably be expected to result in AMCARE no longer
being an affiliate of Xxxxx Xxxxxxx International Medical
Laboratories.
(e) Enforceability. Its obligations and the obligations of
AMCARE and any affiliate under this Agreement and any other
agreement entered into by such entity in connection with
this Agreement or the Project are and will be the legal,
valid, and
13
binding obligation of AMCARE or such affiliate enforceable
against such entity in accordance with its terms, subject
to applicable bankruptcy, reorganization, insolvency,
moratorium, or similar laws affecting creditors' rights
generally and subject as to enforceability, to equitable
principle of general application regardless of whether
enforcement is sought in a proceeding in equity or at law.
(f) Litigation. There are no suits, proceedings, judgments,
rulings or orders by or before any governmental authority,
court or arbitrator or any pending or threatened action or
proceeding affecting AMCARE before any governmental
authority, court or arbitrator that could reasonably be
expected to materially and adversely affect the financial
condition or operations of AMCARE or the ability of AMCARE
to perform its obligations under this Agreement or any
other agreement entered into by such entity in connection
with this Agreement or the Project, or which purports to
affect the legality, validity or enforceability of this
Agreement or any other such Agreement.
6.3 No other representations or warranties. Except for the
representations and warranties expressly set forth in this
Agreement neither Party is relying upon any statement,
representation or warranty made by the other Party or any of the
other Party's affiliates or agents, or any of their respective
officers or employees. Without limiting the preceding sentence,
each Party expressly acknowledges, represents and warrants to the
other Party as follows:
(a) The Project. No representation or warranty is made by the
other Party or any of its affiliates with respect to the
possible revenues, profits or losses that may arise from
the Project or any transaction contemplated by this
Agreement, any Related Agreement or any other Project
Documents.
(b) Investment Risk.
(i) The investments in Xxxxx0, Xxxxx0 and the Project
contemplated by this Agreement involve a high degree
of risk and are illiquid.
(ii) Neither of the Parties is under any obligation to
register any shares or other equity interests in
Newco1 or Newco2 with the applicable regulatory
bodies of the Territory, the U.S. Securities and
Exchange Commission or any other federal, state or
provincial governmental agencies of the Territory or
the U.S., or to take any other action necessary in
order to make compliance with an exemption from
registration available, or to otherwise offer the
common shares of Newco1 or Newco2 publicly.
(iii) Each Party has a full understanding of the terms and
risks of the Project and is capable of assuming
those risks.
(c) Information. Representatives of each Party have had an
opportunity to ask questions and receive answers about the
Project and to obtain additional information for
verification purposes. Each such Party has retained and
will retain legal and professional advisors of its choice
and is not relying upon advice rendered by any advisors
employed or retained by the other Party.
(d) Relationship between the Parties; Non-Reliance. In entering
into this Agreement and any Related Agreement and any
transactions in connection with the Project,
14
(i) it is acting for its own account as a principal (and not
as an adviser, agent, broker or in any other capacity,
fiduciary or otherwise),
(ii) it has made its independent decision to pursue the
Project and to enter into the Project Documents based on
its own evaluation of the costs, risks and benefits of
the Project and not in reliance upon any view expressed
by any other Party to this Agreement or its affiliates,
7. Guarantees. Unless otherwise agreed by each Party, neither BRIDGETECH nor
AMCARE will be required to provide any guarantee either to each other or
to any third party with respect to the obligations of Newco1 or Newco2
under any loan or credit agreement, lease, purchase or supply agreement or
other agreement of any kind.
8. Confidentiality and Intellectual Property.
8.1 Confidential Information. For purposes of this Agreement, subject to
the special provisions in Section 8.3 below, "CONFIDENTIAL
INFORMATION" means information provided by a Party to this Agreement
(the "DISCLOSING PARTY") to any other Party to this Agreement or to
Newco1 or Newco2 (the "RESTRICTED PARTY") in connection with the
transactions and relationships contemplated by the Project
Documents, including but not limited to:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including,
but not limited to, products, planning information, marketing
strategies, plans, finance operations, sales estimates,
business plans, and internal performance results relating to
the past, present or future business activities of the
Disclosing Party and its affiliates and, services and products
provided to or obtained from, the terms of related contracts
with, and the identities of any other identifying information
regarding the customers, clients and suppliers of the
Disclosing Party or its affiliates;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality
affords the Disclosing Party a competitive advantage over its
competitors;
(c) all confidential or proprietary concepts, documentation,
reports, data (including magnetic tapes), specifications, web
sites, screen formats, computer software, source code, object
code, flow charts, databases, inventions, systems, system
security features, system enhancements, information, know-how,
show-how and trade secrets, whether or not patentable or
copyrightable;
(d) all documents, inventions, substances, engineering and
laboratory notebooks, drawings, diagrams, specifications,
bills of material, equipment, prototypes and models, and any
other tangible manifestation of the foregoing;
(e) any other information that a Disclosing Party treats as
confidential information provided by an affiliate or other
third party; and
(f) any information derived from any of the foregoing that is
treated as confidential.
15
8.2 Nondisclosure. Each Party shall treat as confidential, and the
Parties shall together cause Newco1 and Newco2 to treat as
confidential, all Confidential Information of the other Party, shall
not use such Confidential Information except as set forth herein,
and shall use reasonable efforts not to disclose such Confidential
Information to any third party. Without limiting the foregoing, each
of the Parties shall use at least the same degree of care which it
uses to prevent the disclosure of its own confidential information
of like importance to prevent the disclosure of Confidential
Information disclosed to it by the other Party under this Agreement.
Neither BRIDGETECH nor AMCARE shall be entitled to access, use or
disclose any Confidential Information of the other Party solely by
virtue of the provision of such Confidential Information by the
Disclosing Party to Newco1 or Newco2.
8.3 Exceptions. Notwithstanding the above, neither Party shall have
liability to the other with regard to any Confidential Information
of the other which the Restricted Party can prove: (i) was in the
public domain at the time it was disclosed or has entered the public
domain through no fault of the Restricted Party; (ii) was known to
the Restricted Party, without restriction, at the time of disclosure
(iii) is disclosed with the prior written approval of the Disclosing
Party; (iv) was independently developed by the Restricted Party
without any use of the Confidential Information of the other Party,
(v) becomes known to the Restricted Party, without restriction, from
a source other than the Disclosing Party without breach of this
Agreement by the Restricted Party and otherwise not in violation of
the Disclosing Party's rights; (vi) is disclosed generally to third
parties by the Disclosing Party without restrictions similar to
those contained in this Agreement; or (vii) is disclosed pursuant to
the order or requirement of a court, administrative agency, or other
governmental body; provided, however, that the Restricted Party
shall provide prompt notice thereof to the Disclosing Party to
enable the Disclosing Party to seek a protective order or otherwise
prevent or restrict such disclosure.
8.4 Return of Confidential Information. Upon expiration or termination
of the Project, each Party shall return or destroy, and together
shall cause Newco1 and/or Newco2, as applicable, to return or
destroy, all Confidential Information received from the other Party.
8.5 Confidentiality of Agreement. Each Party shall be entitled to
disclose the existence of this Agreement, but agrees that the terms
and conditions of this Agreement shall be treated as Confidential
Information and shall not be disclosed to any third party; provided,
however, that each Party may disclose the terms and conditions of
this Agreement: (i) as required by any court or other governmental
body; (ii) as otherwise required by law; (iii) to legal counsel of
the Parties; (iv) in confidence, to accountants, banks, and
financing sources and their advisors; (v) in connection with the
enforcement of this Agreement or rights under this Agreement; (vi)
in confidence, in connection with an actual or proposed merger,
acquisition, or similar transaction or (vii) in accordance with
Section 9, below.
8.6 Intellectual Property. Each of BRIDGETECH and AMCARE acknowledge
that, during the course of the Project, BRIDGETECH or AMCARE may
license or otherwise permit Newco1 or Newco2 to use certain patents,
trademarks, trade names, service marks, domain names, copyrights,
designs, processes, formulae, methods, schematics, technology,
invention, trade secrets, know-how, computer software programs or
applications and tangible or intangible proprietary information or
material (collectively, "INTELLECTUAL PROPERTY") owned or licensed
by such Party (the "OWNER") in order to permit Newco1 and Newco2 to
perform their obligations under the Project Documents or otherwise.
The Parties acknowledge and agree that, and the Parties shall cause
Newco1
16
and Newco2 to acknowledge and agree that, except to the extent that
(i) such Intellectual Property is expressly and specifically
contributed in writing by the Owner thereof as part of an equity
contribution to Newco1 or Newco2 to which the other Party consents
in writing, or (ii) such Intellectual Property is expressly and
specifically sold to Newco1 or Newco2 by the Owner thereof in
accordance with the provisions of this Agreement, none of Xxxxx0,
Xxxxx0 or the non-Owner Party shall acquire any rights, express or
implied, in the Intellectual Property other than those specified in
Project Document pursuant to which such license or right to use was
granted. For the avoidance of doubt, in no event shall Newco1 or
Newco2 license or otherwise permit the non-Owner Party or any third
party to use any such Intellectual Property to which it may be given
access pursuant to the terms of the Project Documents without the
prior written consent of the Owner.
8.7 Remedies. Any breach of the restrictions contained in this Section 8
is a breach of this Agreement which may cause irreparable harm to
the non-breaching Party. Any such breach shall entitle the
non-breaching Party to injunctive relief in addition to all legal
remedies.
9. Press Release and Announcements. BRIDGETECH and AMCARE agree that no
public release or announcement concerning the transactions contemplated
hereby shall be issued or made by or on behalf of any Party without the
prior consent of the other Party, except that either Party may, after
consultation with counsel, make announcements that such Party reasonably
may determine are necessary to comply with applicable law. AMCARE
acknowledges and agrees that BRIDGETECH may be required to announce the
terms of this Agreement and make publicly available this Agreement and
that no breach of this Section 9 shall be deemed to result therefrom.
Notwithstanding the foregoing, BRIDGETECH and AMCARE shall cooperate to
prepare a joint press release to be issued in connection with the Closing.
10. Indemnification.
10.1 Indemnification. Each Party (the "Indemnifying Party") will defend,
indemnify, and hold the other Party and its Affiliates, officers and
directors, shareholders, and each of its and their successors and
permitted assigns (the "Indemnified Parties"), harmless from and
against any and all liabilities, judgments, losses, actual damages,
costs, and expenses (including without limitation reasonable
attorneys' and experts' fees) which any or all of them may hereafter
incur themselves or pay out to another by reason of any claim, suit,
or proceeding brought by a third party, at law or in equity, that
arises out of or relates to (i) a material breach of any
representation, warranty, covenant, obligation or other provision of
this Agreement by the Indemnifying Party or (ii) any other Event of
Default, except to the extent caused by the gross negligence or
willful misconduct of an Indemnified Party.
10.2 Indemnification Procedures. To the extent that the indemnification
described in Section 10.1 above relates to a claim, suit or
proceeding by a third party, the Indemnifying Party must keep the
Indemnified Parties fully informed regarding the status or progress
of any claim, suit, settlement or proceeding related hereto. The
defense of the Indemnified Parties shall be provided by attorneys
selected and retained by the Indemnifying Party at its sole cost and
expense, which attorneys shall be subject to the prior written
approval of the Indemnified Parties (not to be unreasonably
withheld, conditioned or delayed). The Indemnified Parties shall
have the right to participate, and be represented by attorneys or
other representatives of their choosing (at their sole cost and
expense) in the defense of such claim, suit or proceeding and all
settlement negotiations relative thereto. The Indemnifying Party
shall have the right to determine all matters in connection with the
claim, suit or proceeding including, without limitation, in
connection with negotiations relating to the settlement thereof,
provided, however, that any settlement of such claim,
17
suit or proceeding shall require the Indemnified Parties to be
released of all liability with respect thereto. In the event that
the Indemnifying Party fails or refuses to indemnify any Party with
respect to any claim or matter indemnified under this Section 10
after written notice and a reasonable opportunity to do so, said
Indemnified Party shall have the right to defend such claim or
matter at the sole cost and expense of the Indemnifying Party,
through attorneys selected by the Indemnified Party in its sole
discretion. The indemnities set forth in this Section 10 shall
survive expiration or earlier termination of this Agreement.
10.3 Exclusion of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY SHALL, UNDER ANY
CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREUNDER, EVEN IF THE PARTY HAS BEEN APPRISED OF THE
LIKELIHOOD OF SUCH DAMAGES.
11. Dispute Resolution Procedure.
11.1 General. The Parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, except as otherwise
provided in this Section 11, all disputes, controversies, or claims
arising out of or relating to this Agreement or an Event of Default
(as defined in this Agreement), or the breach, termination, or
validity of this Agreement (a "Dispute"), shall be resolved in
accordance with this Section 11.
11.2 Discussions to Resolve Dispute. At the written request of either
Party identifying a Dispute, the Parties to the Dispute shall
appoint knowledgeable, responsible representatives to meet and
negotiate in good faith to attempt to resolve the Dispute. The
Parties intend that these negotiations be conducted by non-lawyer,
business representatives, including at least one senior executive of
each Party to the dispute. The location, format, frequency,
duration, and conclusion of these discussions shall be left to the
discretion of the representatives. Discussion and correspondence
among the representatives for purposes of these negotiations shall
be treated as confidential information developed for purposes of
settlement, exempt from discovery and production, which shall not be
admissible in any arbitration or other proceeding. Documents
identified in or provided with such communications, but which were
not prepared for purposes of the negotiations, are not so exempted.
11.3 Arbitration. Any Dispute not resolved by negotiation pursuant to
Section 11.2 within thirty (30) days of the written request for
negotiation, shall be finally resolved, at the initiative of either
Party, by binding arbitration in accordance with this Section 11 and
the International Arbitration Rules of the American Arbitration
Association (the "AAA Rules").
11.4 Venue. Any arbitration under this Section 11 shall be conducted
pursuant to the Federal Arbitration Act, 9 U.S.C. Section 1 et seq.,
in New York, New York or such other location as may be agreed by the
Parties.
11.5 Selection of Arbitrators. There shall be one arbitrator, who shall
have at least five (5) years' experience in or with the health care
industry. If the Parties are unable to agree on the selection of the
arbitrator within twenty-one (21) days of the notice of arbitration,
the arbitrator shall be chosen in accordance with the AAA Rules.
18
11.6 Waiver of Special, Consequential, and Punitive Damages. The award of
the arbitrator may not include any element of special,
consequential, or punitive damages, and the right to claim such
damages is hereby expressly waived by each Party.
11.7 Provisional Relief. Either Party may seek from any court of
competent jurisdiction any provisional relief that may be required
to protect its rights or rights created pursuant to this Agreement,
without prejudice to its agreement to arbitrate Disputes under this
Section 11.
11.8 Jurisdiction. The Parties hereby consent to the non-exclusive
jurisdiction of the Courts of the State of New York for purposes of
any application for provisional relief under Section 11.7 or to
enforce any provision of this Section 11, or any arbitration award
hereunder, but both Parties remain free to seek similar relief from
any court in any other jurisdiction in which such relief may be
needed.
11.9 Award; Fees and Expenses. The award of the arbitrator may be entered
in any court of competent jurisdiction. The fees and costs of the
Parties to any dispute resolved by arbitration under this Section
11, including without limitation the arbitrator's fees and all
attorneys' fees and expenses, shall be allocated in the award.
12. Miscellaneous.
12.1 Binding Effect. This Agreement shall be binding on and inure to the
benefit of the Parties and their respective successors and permitted
assigns.
12.2 Assignment. This Agreement shall not be assigned by either Party
without the prior written consent of the other Party, not to be
unreasonably delayed or withheld, and any purported such assignment
without such consent shall be void. For purposes of this Section
12.2, a merger involving a Party shall be deemed to result in an
assignment of this Agreement to the surviving entity in the merger,
regardless of whether the Party is the surviving entity or merging
entity to such merger.
12.3 Notices And Other Communications.
(a) Each notice, communication and delivery under this Agreement
(i) shall be made in writing signed by the Party making the
same, (ii) shall specify the Section of this Agreement
pursuant to which it is given, (iii) shall be given either in
person or by telecopier, effective upon such delivery or the
confirmed transmission and (iv) if not given in person, shall
be sent to the applicable Party at the address set forth below
(or at such other address as the applicable Party may furnish
to the other Party pursuant to this subsection) by
international courier delivery service, effective upon the
second business day after such notice is deposited, delivery
charges pre-paid, with such international courier delivery
service. Each Party's notice information is as follows:
BRIDGETECH: Bridgetech Holdings International, Inc.
000 X. Xxxxxxx 000, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
XXX
Attn: Xxxxxx X. Xxxx III
Phone: 000-000-0000
Fax: 000-000-0000
19
With a copy to:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
XXX
Attn: X. Xxxx Xxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
AMCARE: AmcareLabs International, Inc
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
XXX
Attn: Xxxxx Xxxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
(b) Either Party may modify any information specified in this
Section 12.3 by giving written notice to the other Party.
(c) All written communications made as provided in Section 12.3(a)
shall be deemed given upon receipt by the Party to which it is
addressed, which, in the case of facsimile, shall be deemed to
occur by the close of the business day in the place of receipt
on which the same is transmitted or such earlier time as is
confirmed by the receiving Party.
12.4 Severability. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall to any
extent be contrary to any applicable law or regulation or otherwise
invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons or circumstances
other than those as to which it is contrary, invalid or
unenforceable shall not be affected thereby and, to the extent
consistent with the overall intent of this Agreement taken as a
whole, shall be enforced to the fullest extent permitted by
applicable law and regulation.
12.5 Amendment; No Waiver. This Agreement shall only be amended upon the
written agreement of each Party hereto. No waiver by either Party of
any one or more defaults by the other Party in the performance of
any of the provisions of this Agreement shall operate or be
construed as a waiver of any other default or defaults whether of a
like kind or different nature. No delay by either Party in the
enforcement of any of its rights under this Agreement shall be
deemed to be a waiver of such rights.
12.6 Relationship between the Parties. Except to the extent contemplated
by this Agreement, nothing in this Agreement shall create or be
deemed to create a partnership or joint venture between the Parties
and except to the extent expressly specified in this Agreement or
any Related Agreement no Party will or is entitled to act as agent
for any other Party.
12.7 Expenses. Each Party will be responsible for the payment of all
costs and expenses incurred by it in connection with the preparation
and negotiation of this Agreement and the Related Agreements and
unless, and only to the extent, agreed by the Parties none of such
costs or expenses will be borne by Newco1 or Newco2.
20
12.8 No Third Party Beneficiaries. This Agreement confers no rights
whatsoever upon any person other than BRIDGETECH, AMCARE, Newco1 and
Newco2 and shall not create, or be interpreted as creating, any
standard of care, duty or liability to any person not a Party
hereto.
12.9 Governing Law. The Project Documents will be governed by the laws of
Delaware except as specifically provided in such documents, without
regard to principles of conflict of laws.
12.10 Certain Rules of Construction. The following rules of construction
will apply throughout this Agreement and any Project Document.
(a) Headings. Any headings used in this Agreement or in any other
Project Documents are for the purpose of convenience only and
shall not affect the meaning or interpretation of the
agreement or document in question.
(b) Words of Inclusion. The word "including" will not be construed
to be a term of limitation, so that references to "included"
matters or items will be regarded as illustrative and will not
be interpreted as a limitation on, or an exclusive listing of,
the matters or items referred to.
(c) Singular and Plural Forms; Genders. Whenever the context so
requires, the singular includes the plural and the plural
includes the singular, and the gender of any pronoun includes
the other genders.
12.11 Counterparts. This Agreement may be executed by each Party upon a
separate copy, and in several counterparts, each of which will be
deemed to be an original and all of which, taken together, shall
constitute one and the same instrument.
(Signature page follows.)
21
IN WITNESS WHEREOF, the Parties have executed this Agreement, or caused it to be
executed by their duly authorized officers or agents all as of the day and year
first above written.
BRIDGETECH HOLDINGS INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Chairman
AMCARE LABS INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
22
EXHIBIT A
FORM OF CERTIFICATE OF INCORPORATION
See attached.
23
CERTIFICATE OF INCORPORATION
OF
BRIDGETECH CRO, INC.
FIRST: The name of the corporation is "Bridgetech CRO, Inc.".
SECOND: The address of the registered office of the corporation in the
State of Delaware is The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxx
Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 in the City of Wilmington, County of
New Castle. The name of the registered agent of the corporation at such address
is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is One Thousand (1000) shares of common stock having a
par value of $.001 per share ("Common Stock").
FIFTH: The incorporator is Xxxxxx X. Xxxx III, whose mailing address is
c/o Bridgetech Holdings International, Inc., 000 X. Xxxxxxx 000, Xxxxx 000,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000.
SIXTH: Election of directors need not be by ballot.
SEVENTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors is expressly
authorized to adopt, amend or repeal the bylaws of the corporation.
EIGHTH: A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (a) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Delaware General Corporation Law Section 174, or (d)
for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law is amended after the date of
this certificate of incorporation to further eliminate or limit the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended. Any repeal or modification of this
Article by the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at the time of
such repeal or modification.
24
NINTH: The corporation reserves the right to amend and repeal any
provision contained in the certificate of incorporation in the manner prescribed
by the laws of the State of Delaware. All rights herein conferred are granted
subject to this reservation.
DULY EXECUTED and delivered by the incorporator, under seal, for the
purpose of forming a corporation under the laws of the State of Delaware and
making, filing and recording this certificate of incorporation, and who does
hereby certify that the facts stated in this certificate of incorporation are
true, all on May 25, 2005.
_____________________________
Xxxxxx X. Xxxx III
as incorporator
* * * * *
25
EXHIBIT B
FORM OF BYLAWS
See attached.
26
================================================================================
BYLAWS
OF
[__________]
(a Delaware Corporation)
================================================================================
27
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS.............................................. 29
1.1 Definitions............................................. 29
ARTICLE 2: STOCK CERTIFICATES....................................... 30
2.1 Stock Certificates...................................... 30
2.2 List of Stockholders.................................... 30
2.3 Transfers of Stock...................................... 30
2.4 Lost Certificates....................................... 30
ARTICLE 3: STOCKHOLDERS' MEETINGS................................... 30
3.1 Annual Meetings of Stockholders......................... 30
3.2 Special Meetings of Stockholders........................ 30
3.3 Notice.................................................. 30
3.4 Quorum.................................................. 31
3.5 Voting.................................................. 31
3.6 Adjournment............................................. 31
3.7 Presiding Officer....................................... 31
3.8 Written Consent of the Stockholders..................... 32
ARTICLE 4: BOARD OF DIRECTORS....................................... 32
4.1 Powers of Board......................................... 32
4.2 Number of Board; Conduct of Meetings of Board........... 32
4.3 Removal of Board........................................ 32
4.4 Board Vacancies......................................... 32
4.5 Meetings; Notice........................................ 33
4.6 Executive and Other Committees.......................... 34
4.7 Reliance on Records and Third Parties................... 34
ARTICLE 5: OFFICERS................................................. 35
5.1 Officers; Election...................................... 35
5.2 President............................................... 35
5.3 Secretary............................................... 35
5.4 Vice Presidents......................................... 35
5.5 Appointment of Officers and Agents...................... 35
5.6 Removal of Officers and Agents.......................... 35
5.7 Vacancies............................................... 35
ARTICLE 6: SEAL..................................................... 36
6.1 Seal.................................................... 36
ARTICLE 7: INDEMNIFICATION AND INSURANCE............................ 36
7.1 Indemnification......................................... 36
7.2 Insurance............................................... 37
ARTICLE 8: MISCELLANEOUS............................................ 37
8.1 Voting of Securities Owned by the Corporation........... 37
8.2 Registered Offices...................................... 37
ARTICLE 9: AMENDMENT................................................ 38
9.1 Amendment............................................... 38
BYLAWS
OF
[__________]
(A Delaware Corporation)
ARTICLE I. DEFINITIONS
1.1 Definitions.
The following terms used in the Bylaws have the meanings set forth
below:
(a) "Certificate of Incorporation" means the certificate of
incorporation of the Corporation as amended from time to time.
(b) "Board" means the Board of Directors of the Corporation.
(c) "Bylaws" means these bylaws as amended or restated from time
to time.
(d) "Corporation" means the Delaware corporation named _________.
(e) "DGCL" refers to the General Corporation Law of the State of
Delaware or any successor law of the State of Delaware, and a
reference to a particular section of the DGCL is a reference
to successor sections of such law or successor law.
(f) "Section" means a section of the Bylaws.
(g) "Stockholders" means the stockholders of the Corporation.
For purposes of the Bylaws: (i) titles and captions of or in, and the table of
contents of, the Bylaws are inserted only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of the
Bylaws or the intent of any of their provisions; and (ii) "including" and other
words or phrases of inclusion, if any, shall not be construed as terms of
limitation, so that references to "included" matters shall be regarded as
non-exclusive, non-characterizing illustrations.
ARTICLE II. STOCK CERTIFICATES
2.1 Stock Certificates. Stock certificates shall be issued in consecutive
order and shall be numbered in the order in which they are issued. They shall be
signed by the President or the Secretary (any of which signatures may be a
facsimile), and the seal of the Corporation or a facsimile of it shall be
affixed to the stock certificate.
2.2 List of Stockholders. The Corporation shall maintain an alphabetical
record of the names and addresses of its Stockholders and the number of shares
of stock held by each, which shall be maintained and made available in
accordance with the DGCL.
2.3 Transfers of Stock. Transfers of stock of the Corporation shall be
made in the stock records of the Corporation upon surrender of the certificate
for such stock signed by the person in whose name the certificate is registered
or on his behalf by a person legally authorized to so sign (or accompanied by a
separate stock transfer power so signed) and otherwise in accordance with and
subject to any other restrictions placed on the transfer of such stock.
2.4 Lost Certificates. The Corporation may issue a new stock certificate
in place of any certificate or certificates previously issued by the Corporation
and alleged to have been lost or destroyed upon the making of an affidavit of
that fact by the person claiming the certificate to be lost or destroyed and, if
the President in his sole discretion deems it appropriate, the delivery of a
commercial indemnity bond issued by a company approved by him in such sum as he
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed.
ARTICLE III. STOCKHOLDERS' MEETINGS
3.1 Annual Meetings of Stockholders. The annual meeting of the
Stockholders of the Corporation shall be held within the first four months after
the end of each fiscal year of the Corporation at such time and place, within or
without the State of Delaware, as may from time to time be fixed by the Board or
the President; provided that the failure to hold an annual meeting shall not
work a forfeiture of or otherwise affect valid corporate acts.
3.2 Special Meetings of Stockholders. Special meetings of the Stockholders
may be called at any time by the Board or the President, or by the Corporation
upon the written request of the holder or holders of at least 15 percent of the
outstanding shares of stock of the Corporation. Special meetings of the
Stockholders shall be held at such time and place, within or without the State
of Delaware, as may be determined by the person or persons calling the meeting.
3.3 Notice. The Secretary or the officer or persons calling the meeting
shall deliver a written notice of the place, if any, day and time of each
meeting of the Stockholders, not less than ten (10) nor more than sixty (60)
days before the date of the meeting, to each Stockholder of record entitled to
vote at such meeting. Such notice shall be given in any manner permitted by
the DGCL. If mailed, such notice shall be deemed to be delivered five (5) days
after it is deposited in the United States mail with first class postage thereon
prepaid, addressed to the Stockholder at his address as it appears on the stock
records of the Corporation. The notice of a special meeting of the Stockholders
shall state the purpose or purposes for which the meeting is called. If the
meeting is to be held by means of remote communication pursuant to the DGCL, the
notice shall state the means of remote communications, if any, by which
Stockholders and proxy holders may be deemed to be present in person and vote at
such meeting. Notice of a meeting of the Stockholders need not be given to any
Stockholder who signs a waiver of notice, either before or after the meeting.
Attendance of a Stockholder at a meeting, either in person or by proxy, shall of
itself constitute waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting, and the manner
in which it has been called or convened, except when a Stockholder attends the
meeting solely for the purpose of stating, at the beginning of the meeting, any
such objection or objections to the transaction of business.
3.4 Quorum. At all meetings of the Stockholders, the holders of a majority
of the outstanding shares of stock of the Corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum for the transaction
of business.
3.5 Voting. Except as otherwise required by law, the Bylaws or any lawful
agreement between or among the Stockholders, all resolutions adopted and
business transacted shall require the favorable vote of the holders of a
majority of the shares of stock represented at the meeting and entitled to vote
on the subject matter. Except as otherwise required by law, by the Certificate
of Incorporation, by filings with the Delaware Secretary of State fixing and
determining the voting rights of the stock of the Corporation or by the Bylaws,
at any meeting of the Stockholders, each Stockholder of the Corporation shall
have one vote, in person or by proxy, for each share of stock having voting
rights standing in his name on the books of the Corporation at the record date
fixed or otherwise determined for such meeting.
3.6 Adjournment. The holders of a majority of the shares of stock
represented at a meeting, whether or not a quorum is present, may adjourn such
meeting from time to time. If a quorum is not present, the holders of the shares
of stock present in person or represented by proxy at the meeting, and entitled
to vote, shall have the power, by the affirmative vote of the holder of such
shares of stock, which represent a majority of the votes which may be cast by
the holders of such shares of stock, to adjourn the meeting to another time
and/or place. Unless the adjournment is for more than thirty (30) days or unless
a new record date is set for the adjourned meeting, no notice of the adjourned
meeting need be given to any Stockholder provided that the time, place, if any,
and the means of remote communication, if any, by which Stockholders and proxy
holders may be deemed to be present in person and vote at the adjourned meeting
were announced at the meeting at which the adjournment was taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting.
3.7 Presiding Officer. The President shall preside at meetings of the
Stockholders; provided, however, that the President may delegate his authority
to preside at meetings of the Stockholders pursuant to Section 5.2.
3.8 Written Consent of the Stockholders. Any action required to be taken
at a meeting of the Stockholders of the Corporation, or any action that may be
taken at a meeting of the Stockholders, may be taken without a meeting if a
consent in writing setting forth the action so taken shall be signed by persons
who would be entitled to vote at a meeting those shares of stock having voting
power to cast not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares of stock
entitled to vote were present and voted. Prompt notice shall be given of the
taking of corporate action without a meeting by less than unanimous written
consent to those Stockholders on the record date whose shares of stock were not
represented on the written consent. For purposes of written consent by the
Stockholders, the record date for determining Stockholders entitled to take
action pursuant to this Section 3.8 shall be the date when the consent is first
executed and action shall be deemed taken when executed by the last necessary
signature.
ARTICLE IV. BOARD OF DIRECTORS
4.1 Powers of Board. Subject to the Certificate of Incorporation, the
Bylaws, and any lawful agreement between or among the Stockholders, including
that certain Joint Venture Agreement, dated as of April 10, 2005, by and between
Bridgetech Holdings International, Inc. and Amcare Labs International, Inc. (the
"Joint Venture Agreement") and any management agreement contemplated thereby,
the business and affairs of the Corporation shall be managed by the Board.
4.2 Number of Board; Conduct of Meetings of Board. The members of the
Board of Directors shall be determined as provided in the Joint Venture
Agreement. In the event that the Joint Venture Agreement shall no longer be in
effect, the Board shall consist of three directors, each of whom shall be
elected at an annual meeting of the Stockholders, to serve until his successor
is elected and qualified, or until his earlier death, resignation or removal.
4.3 Removal of Board. Members of the Board of Directors shall be removed
only as provided in the Joint Venture Agreement. In the event that the Joint
Venture Agreement shall no longer be in effect, at any meeting of the
Stockholders with respect to which notice of such purpose has been given, the
entire Board or any individual director may be removed, with or without cause,
by the affirmative vote of the holders of a majority of the shares of stock of
the Corporation entitled to vote.
4.4 Board Vacancies. Except as otherwise provided in this Section 4.4 or
in the Joint Venture Agreement, any vacancy occurring in the Board may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum of the Board, or by the sole remaining director, as the case may
be, or, if the vacancy is not so filled, or if no director remains, by the
Stockholders. Any vacancy arising as a result of the removal of a director by
the Stockholders may be filled by the Stockholders or, if the Stockholders so
authorize, by the remaining director or directors, but only for the unexpired
term of his predecessor in office. The Board may fill a vacancy created by an
increase in the number of directors resulting from an amendment of Section 4.2,
but only for a term of office continuing until the next annual election of
directors by the Stockholders and the election and qualification of a successor.
4.5 Meetings; Notice.
(a) Time and Location. The Board shall meet annually immediately
following the annual meeting of the Stockholders; provided that the failure to
hold the annual meeting shall not work a forfeiture or otherwise affect valid
corporate acts. A special meeting of the Board may be called at any time by the
President, or by any two directors, on ten (10) days' notice.
(b) Notice. Notice shall be given (i) in person, either orally or in
writing (which includes a telephone call to the director, but does not include
either (A) a telephone call to such directors' assistant or (B) the leaving of a
message), (ii) by nationally recognized next business day delivery service for
next business day delivery, (iii) by fax, or (iv) by electronic mail. Such
notice shall be addressed to the director at his address as it appears on the
stock records of the Corporation or, if he is not a Stockholder, at his business
address. Notice of a special meeting may be waived by an instrument in writing.
Attendance of a director at a meeting shall constitute a waiver of notice of the
meeting and waiver of any and all objections to the place of the meeting, the
time of the meeting and the manner in which it has been called or convened,
except when a director states, at the beginning of the meeting, any such
objection or objections to the transaction of business. Any meeting of the Board
may be held within or without the State of Delaware at such place as may be
determined by the person or persons calling the meeting.
(c) Quorum. Unless otherwise provided in the Joint Venture
Agreement, all of the directors shall constitute a quorum for the transaction of
business.
(d) Voting. Except as otherwise provided in the Certificate of
Incorporation, these Bylaws or the Joint Venture Agreement, all resolutions
adopted and all business transacted by the Board shall require the affirmative
vote of a majority of the directors present at a meeting at which a quorum is
present.
(e) Presiding Officer. The Board shall select a director as chairman
for each meeting.
(f) Written Consent of Board. Any action required to be taken at a
meeting of the Board, or any action that may be taken at a meeting of the Board,
may be taken without a meeting if a consent in writing setting forth the action
taken shall be signed by all the directors and shall be filed with the minutes
of the proceedings of the directors.
(g) Telephonic Meetings of Board. Any action required to be taken at
a meeting of the Board, or any action that may be taken at a meeting of the
Board, may be taken at a meeting held by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in such a meeting shall
constitute presence in person at such meeting. In all other respects the
provisions of Article 4 of the Bylaws with respect to meetings of the Board
shall apply to such a meeting.
4.6 Executive and Other Committees. The Board may designate, by resolution
adopted by a majority of the Board, from among its members an executive
committee and one or more other committees, each consisting of one or more
directors, subject to the following:
(a) Each such committee shall have and may exercise, consistent with
and to the extent provided in the resolution of the Board designating such
committee, all the authority of the Board, but no such committee shall have the
power or authority in reference to (i) approving or adopting, or recommending to
the Stockholders, any action or matter expressly required by the DGCL to be
submitted to Stockholders for approval, or (ii) adopting, amending or repealing
any bylaw of the Corporation.
(b) Each member of any such committee shall hold office until the
next regular annual meeting of the Board following his designation and until his
successor is designated, elected and qualified. Any vacancy in any such
committee may be filled by a resolution adopted by a majority of the Board. The
Board, by resolution adopted by a majority of the Board, may designate one or
more directors as alternate members of any such committee, who may act in the
place and stead of any absent member or members at any meeting of such
committee. Any member of any such committee may be removed at any time with or
without cause by resolution adopted by a majority of the Board. Any member of
any such committee may resign from such committee at any time by giving written
notice to the President or Secretary of the Corporation, and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
(c) Unless the Board otherwise provides, each committee designated
by the Board may make, alter and repeal rules for the holding of its meetings
and the conduct of its business, subject to the following: (i) a majority of the
entire authorized number of members of such committee shall constitute a quorum
for the transaction of business; (ii) the vote of a majority of the members
present at a meeting at the time of such vote if a quorum is then present shall
be the act of such committee; and (iii) in other respects each committee shall
hold its meetings and conduct its business in the same manner as does the Board
pursuant to Article 4 of the Bylaws (including, without limitation, the taking
of action without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the members of such committee and be filed with
the minutes of the proceedings of such committee). Each such committee shall
keep minutes or other records of its proceedings and shall report its actions to
the Board as requested and at regularly scheduled meetings of the Board.
(d) The designation of any such committee and the delegation thereto
of authority shall not operate to relieve the Board, or any member of the Board,
of any responsibility imposed by law.
4.7 Reliance on Records and Third Parties. A member of the Board or a
member of any committee designated by the Board shall, in the performance of
such member's duties, be fully protected in relying in good faith upon the
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of the Corporation's officers or
employees, or committees of the Board, or by any other person as to
matters the member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation.
ARTICLE V. OFFICERS
5.1 Officers; Election. The Board shall elect a President and a Secretary,
and may elect one or more Vice Presidents, and such other officers, assistant
officers or agents as the Board shall determine. Any two or more offices may be
held by the same person. A failure to elect officers shall not dissolve or
otherwise affect the Corporation.
5.2 President. Subject to the direction of the Board, the President shall
be the chief operating officer of the Corporation and have general supervision
of the day-to-day affairs of the Corporation. When present, he or she shall
report to the Stockholders and directors at all regular meetings. The President
shall have the power to enter into contracts on behalf of the Corporation; shall
sign or countersign all certificates, contracts or other instruments on behalf
of the Corporation as authorized by the Board; and shall have all such other
duties and powers as are incident to his office or properly prescribed by the
Board. The President shall exercise all of the functions and perform all of the
duties of the chief executive officer of the Corporation. If he has not
delegated such authority, the President shall preside at meetings of the
Stockholders and, if he is a director, at meetings of the Board.
5.3 Secretary. The Secretary shall keep minutes of all meetings of the
Stockholders and Board, shall have charge of the minute books, stock records and
seal of the corporation, shall have the authority to certify as to the corporate
books and records, and shall perform such other duties and have such other
powers as may from time to time be delegated to him by the President or the
Board.
5.4 Vice Presidents. The Vice Presidents, if any, shall perform such
duties and exercise such powers as the President or the Board shall request or
delegate and, unless the Board, or the President otherwise provides, shall
perform such other duties as are generally performed by Vice Presidents with
equivalent restrictions, if any, on title.
5.5 Appointment of Officers and Agents. The Board or the President may
appoint one or more Vice Presidents and such other officers, assistant officers
and agents as the Board or the President may determine. Any such officers,
assistant officers or agents so appointed shall perform such duties as are set
forth in the Bylaws and as the action appointing him provides, and, unless such
action otherwise provides, such appointed officers, assistant officers and
agents shall perform such duties as are generally performed by elected officers,
assistant officers or agents having The same title.
5.6 Removal of Officers and Agents. Any officer, assistant officer or
agent elected or appointed by the Board may be removed by the Board. Any
officer, assistant officer or agent appointed by the President may be removed by
the President or by the Board whenever in his or its judgment the best interests
of the Corporation will be served thereby.
5.7 Vacancies. Any vacancy, however occurring, in any office may be filled
by the Board.
ARTICLE VI. SEAL
6.1 Seal. The seal of the Corporation shall be in such form as the Board
may from time to time determine. In the event it is inconvenient to use such a
seal at any time, the words "Corporate Seal" or the word "Seal" accompanying the
signature of an officer signing for and on behalf of the Corporation shall be
the seal of the Corporation. The seal shall be in the custody of the Secretary
and affixed by him on the stock certificates and such other papers as may be
directed by law, by the Bylaws or by the Board.
ARTICLE VII. INDEMNIFICATION AND INSURANCE
7.1 Indemnification.
(a) General. The Corporation shall indemnify each person who is or was a
director or officer of the Corporation (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise to the full extent permitted under DGCL
Section 145(a), (b) and (c) or any other provisions of the laws of the State of
Delaware.
(b) Procedure. If any such indemnification is requested pursuant to the
foregoing, the Board shall cause a determination to be made (unless a court has
ordered the indemnification or indemnification is required by DGCL Section
145(c)) pursuant to DGCL Section 145(d) as to whether indemnification of the
party requesting indemnification is proper in the circumstances because he has
met the applicable standard of conduct set forth in DGCL Sections 145(a) or (b).
Upon any such determination that such indemnification is proper, the Corporation
shall make indemnification payments of liability, cost, payment or expense
asserted against, or paid or incurred by, him in his capacity as such a director
or officer to the maximum extent permitted by said sections of such laws.
(c) Interim Payment of Expenses. Expenses incurred by a person who is or
was a director or officer of the Corporation (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise in defending a civil or criminal
action, suit, or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding, as authorized by the
Board, upon receipt of an agreement or an undertaking by or on behalf of such
person to repay such amount, unless it is ultimately determined that he or she
is not entitled to be indemnified by the Corporation as authorized in, or as
permitted by, this Article 7. The Board may pay such expenses of such person
upon such other terms and conditions as the Board deems appropriate.
(d) Subsequent Amendment. No amendment, termination or other elimination
of this Article 7 or of any relevant provisions of the DGCL or any other
applicable laws shall affect or diminish in any way the rights to
indemnification under this Article 7 with respect to any action,
suit or proceeding arising out of, or relating to, any event or act or omission
occurring or fact or circumstance existing prior to such amendment, termination
or other elimination.
(e) Other Rights. The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this Section 7.1 shall not
be deemed exclusive of any other rights to which a director or officer, seeking
indemnification or advancement of expenses may be entitled under any applicable
law, agreement, vote of Stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in any other
capacity while holding such office; provided, however, that indemnification of a
director shall not be permitted with respect to liability (i) for any breach of
the director's duty of loyalty to the Corporation or its Stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under DGCL Section 174, or (iv) for any
transaction from which the director derived an improper personal benefit.
Nothing contained in this Article 7 shall be deemed to prohibit, and the
Corporation is specifically authorized to enter into, agreements which provide
indemnification rights and procedures permitted by the DGCL.
(f) Continuation of Right to Indemnification. All rights to
indemnification under this Article 7 (including those arising pursuant to
subsection (e) above) shall continue as to a person who has ceased to be a
director or officer, shall inure to the benefit of heirs, executors,
administrators and the estate of such person, and shall be deemed to be a
contract between the Corporation and each such person or entity. This Article 7
shall be binding upon any successor corporation to the Corporation, whether by
way of merger, consolidation or otherwise.
(g) Savings Clause. If this Article 7 or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify persons or entities specified in this
Article 7 to the full extent permitted by any applicable portion of this Article
7 that shall not have been invalidated and to the full extent permitted by
applicable law.
7.2 Insurance. The Corporation may purchase and maintain insurance at its
expense, to protect itself and any such person or entity against any such
liability, cost, payment or expense whether or not the Corporation would have
the power to indemnify such person or entity against such liability, cost,
payment or expense.
ARTICLE VIII. MISCELLANEOUS
8.1 Voting of Securities Owned by the Corporation. The President, any
Vice-President or the Secretary of the Corporation or such other person
designated by the Board shall have authority to vote shares of stock or any
other securities owned by the Corporation and to execute proxies and written
waivers and consents in relation thereto.
8.2 Registered Offices. The initial registered office of the Corporation
in the State of Delaware and the name of the Corporation's registered agent
shall be as designated in the Certificate of Incorporation and may be changed as
the officers of the Corporation shall from time to time determine.
ARTICLE IX. AMENDMENT
9.1 Amendment. The Bylaws may be amended by the Stockholders or by the
Board either by written consent or approved at a meeting, in each case in
accordance with the provisions of the Bylaws and applicable law. The
Stockholders may prescribe that any or all provisions of the Bylaws adopted by
them shall not be altered, amended or repealed by the Board.
* * * * *
EXHIBIT C
FORM OF STOCKHOLDERS AGREEMENT
See attached.
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "Agreement") is made as of this ___ day
of _______, 2005, by and among _____________, a Delaware corporation (the
"Company"), and those certain individuals listed as Common Stockholders on
Schedule 1 attached hereto (collectively, the "Common Stockholders"). The Common
Stockholders and their successors and assigns, and each future stockholder of
the Company who signs a signature page to this Agreement are hereinafter
sometimes referred to collectively as the "Stockholders".
Background
A. In connection with the transactions described in that certain Joint
Venture Agreement by and among Bridgetech Holdings International, Inc.
("Bridgetech") and Amcare Labs International, Inc. ("Amcare"), dated as of April
10, 2005 (the "Joint Venture Agreement"), the Company has agreed to issue up to
1,000 shares of the Company's $.001 par value of common stock (the "Common
Stock") to Bridgetech and Amcare. Any term used herein but not defined herein
shall have the meaning given that term in the Joint Venture Agreement.
B. The Company and the Stockholders desire to enter into this Agreement
for the purpose, among others, of prescribing the manner and terms by which the
Stockholders' shares of Common Stock (the "Shares"), may be transferred.
C. The execution and delivery of this Agreement is a condition to the
Closing under the Joint Venture Agreement.
In consideration of the premises and the covenants and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. CAPITALIZATION. Set forth on Schedule 1 attached hereto is a list of
all the Stockholders of the Company and their respective ownership of Shares
immediately following the Closing.
2. TRANSFER RESTRICTIONS ON SHARES.
(a) General. No holder of Shares shall sell, offer, assign, pledge or
otherwise dispose of any interest in any Shares (whether with or without
consideration and whether voluntarily or involuntarily or by operation of law),
except pursuant to (i) any sale of Shares to the public pursuant to an
underwritten offering registered under the Securities Act of 1933, as amended
(the "Securities Act"), or to the public through a broker, dealer or market
maker pursuant to the provisions of Rule 144 adopted under the Securities Act or
(ii) the provisions of this Section 2 or Section 3.
(b) Permitted Transfers. A Stockholder may transfer all or a portion of
its Shares (i) in the case of a Stockholder that is an individual, to a spouse,
sibling, lineal ancestor or descendant, natural or adopted, or to a trust or
other estate planning entity for the benefit of the
Stockholder or any of such persons; and (ii) in the case of a Stockholder that
is a Person other than an individual, to or among its Affiliates (clauses (i)
and (ii) collectively referred to herein as "Permitted Transferees"). As a
condition to any transfer pursuant to this Section 2(b), the transferee must
agree in writing that it and its heirs, successors and assigns, shall be subject
to and bound by the provisions of this Agreement. Notwithstanding the foregoing,
no party hereto shall avoid the provisions of this Agreement by making one or
more transfers to Permitted Transferees and then disposing of all or any portion
of such party's interest in any such Permitted Transferee. For purposes of this
Agreement, an "Affiliate" of a Person means any Stockholder, partner, member or
other equity owner of such Person or any other Person directly or indirectly
controlling, controlled by or under common control with such Person. "Person"
means an individual, a partnership, a corporation, a limited liability company,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
(c) Right of First Refusal.
(i) Notice of Offer to Sell Shares. Except as provided in Sections
2(a) and 2(b) above, if any Stockholder shall desire to sell, exchange or
in any other manner dispose of all or any of the Shares now owned or
hereafter acquired by it (such Stockholder being hereinafter referred to
as the "Selling Stockholder"), it must first receive a bona fide written
offer from a third-party prospective purchaser to purchase such Shares,
and then deliver to other Stockholders (the "Non-Selling Stockholders") a
written notice ("Notice") containing the following information:
(A) The name and address of the prospective purchaser of such
Shares;
(B) The number of Shares that the Selling Stockholder desires to
sell;
(C) The price being offered to the Selling Stockholder and, in
reasonable detail, the terms of payment and any other terms
and conditions of such offer, including but not limited to the
fair market value (as hereinafter defined) of any non-cash
consideration; and
(D) The proposed closing date for the transaction, which shall be
not less than sixty-five (65) days or more than one hundred
twenty (120) days after the date of delivery of the Notice.
(ii) Offer to Non-Selling Stockholders. For a period of sixty (60)
days after the giving of the Notice by the Selling Stockholder, the
Non-Selling Stockholders shall have the option to purchase all or any of
their pro-rata portion of the Shares that are proposed to be sold at the
price and upon the terms and conditions set forth in the Notice. Such
option shall be exercisable by written notice from such Non-Selling
Stockholder to the Selling Stockholder within such sixty (60) day period.
A failure by any Non-Selling Stockholder to give written notice of
exercise within such sixty (60) day period shall be deemed a rejection by
such Non-Selling Stockholder of its option to purchase. If a Non-
Selling Stockholder does not exercise its option to purchase all the
Shares to which it is first entitled, each remaining Non-Selling
Stockholder shall then have the option to purchase its pro rata portion of
the Shares that will not be purchased by the other Non-Selling
Stockholders, which option shall be exercisable by notice in writing to
the Selling Stockholder and to each of the other Non-Selling Stockholders
within five (5) days after the date of express rejection by all other
Non-Selling Stockholders or the expiration of the options to the
Non-Selling Stockholder who did not elect to purchase such Shares,
whichever is earlier. For purposes of the foregoing sentence, the Shares
available for purchase shall be allocated pro rata among the Non-Selling
Stockholders desiring to purchase such Shares, which allocation shall be
based on the number of Shares owned by each Non-Selling Stockholder in
relation to the total number of Shares held by all Non-Selling
Stockholders who wish to purchase Shares.
(iii) Non-Cash Consideration for Shares. If any consideration to be
received by a Selling Stockholder from a prospective purchaser of its
Shares consists of property other than cash, then the Non-Selling
Stockholders who exercise their option(s) to purchase the Selling
Stockholder's Shares, may deliver to the Selling Stockholder, in payment
of the non-cash portion of the purchase price for the Shares proposed to
be sold, an amount of cash equal to the fair market value of the non-cash
consideration that has been offered to the Selling Stockholder. For
purposes hereof, the "fair market value" of non-cash consideration shall
in each case be agreed upon by the Selling Stockholder and the Non-Selling
Stockholder purchasing its Shares as provided in this Agreement, or, in
the absence of such agreement, such "fair market value" shall be
determined by an appraisal thereof by three independent qualified
appraisers, one being selected by the Selling Stockholder, one being
selected by the Non-Selling Stockholder hereto desiring to purchase the
Selling Stockholder's Shares, and the third appraiser being selected by
the two appraisers thus chosen. The cost of any such appraisal shall be
borne equally by the parties to the appraisal proceeding. All decisions to
be made by the Non-Selling Stockholders purchasing Shares from the Selling
Stockholder shall be made by the affirmative vote of those holding a
majority of Shares held by all such Non-Selling Stockholders. Any closing
provided for herein may be extended for such reasonable period of time as
may be necessary in order for a required appraisal to be completed. In the
event of an appraisal pursuant to this Section 2, the parties agree to be
bound thereby.
(iv) Closings. If any Non-Selling Stockholder shall exercise an
option to purchase that is granted to such Non-Selling Stockholder in this
Section 2, the closing of the purchase and sale transaction shall be held
at the principal office of the Company on a date designated by the
purchaser or purchasers, which date in no event shall be later than 90
days after the Selling Stockholder gives the Notice. If there is more than
one Non-Selling Stockholder purchasing the Shares, the Selling Stockholder
may require that all such Non-Selling Stockholders close concurrently on
the same date.
(v) Right to Transfer. If the Non-Selling Stockholders do not elect
to purchase all the Shares that a Selling Stockholder desires to sell,
subject to Section 2(d) below, the Selling Stockholder shall have the
right to sell the Shares to the prospective purchaser named in the Notice
on the terms and conditions set forth in the Notice until such date that
is 120 days after the date of the Notice. In addition, as a condition to
any
such sale, the purchaser of the Shares must agree in writing that it and
its heirs, successors and assigns, shall be subject to and bound by the
provisions of this Agreement. In the event that the Selling Stockholder
does not sell or otherwise dispose of such Shares within the such period
of time, the right of first offer provided for in this Section 2(c) shall
continue to be applicable to any subsequent disposition of such Shares.
(d) Right of Co-Sale (Tag-Along). In the event that a Selling Stockholder
proposes to dispose of Shares representing not less than fifteen percent(15%) of
the then-outstanding Shares to a third party (other than in accordance with
Sections 2(a) and 2(b)), after compliance with the provisions of Section 2(c),
the other Stockholders shall have the right to offer and sell a proportionate
number of Shares to the prospective purchaser acquiring such Selling
Stockholder's Shares, at the same price and on the same terms and conditions as
outlined in the Notice (the "Co-Sale Right"), in accordance with the following
procedure:
(i) Such Selling Stockholder shall, prior to sale and after
compliance with the provisions of Section 2(c), give notice (the "Co-Sale
Notice") to the Stockholders of the Co-Sale Right and the aggregate number
of Shares proposed to be sold to the third-party purchaser (taking into
account any Offered Shares to be purchased by Non-Selling Stockholders
pursuant to Section 2(c) above).
(ii) Each Stockholder shall have fifteen (15) days after receipt of
such notice to determine if it desires to offer Shares to the third-party
acquiring such Selling Stockholder's Shares. A failure by a Stockholder to
give written notice of exercise within such fifteen (15) day period shall
be deemed a rejection by such Stockholder of its Co-Sale Right.
(iii) Such Selling Stockholder shall cause the proposed purchaser to
offer, in writing to each Stockholder, if Stockholder has elected to
participate in the sale of the Shares (a "Participating Stockholder"), to
purchase at the offer price indicated in the Co-Sale Notice, all or any
part of that number of Shares equal to the product obtained by multiplying
(i) the aggregate number of offered Shares (less any Offered Shares to be
purchased by Non-Selling Stockholders pursuant to Section 2(c) above) by
(ii) a fraction, the numerator of which is the number of Shares owned by
such Participating Stockholder immediately before the time of the sale and
the denominator of which is the sum of (x) the number of the Shares then
owned by all Participating Stockholders and (y) the number of Shares owned
by the Selling Stockholder. The Shares to be transferred by the Selling
Stockholder shall be correspondingly reduced by the aggregate sum of such
product for such Participating Stockholder.
(iv) A Participating Stockholder shall effect its participation in
the sale by promptly delivering to the Selling Stockholder for transfer to
the proposed purchaser one or more certificates, properly endorsed for
transfer, which represent the type and number of Shares that such
participant elects to sell.
(v) The stock certificate or certificates that the Participating
Stockholder delivers to the Selling Stockholder pursuant to subsection
(iv) above shall be transferred
to the proposed purchaser in consummation of the sale of the offered
Shares (together with the Selling Stockholders Shares) pursuant to the
terms and conditions specified in the Co-Sale Notice, and the Selling
Stockholder shall concurrently therewith remit to the Participating
Stockholder that portion of the sale proceeds to which the Participating
Stockholder is entitled by reason of its participation in such sale.
(e) Prohibited Transfers Void. Any purported transfer of Shares in
violation of this Agreement shall be void and shall not transfer any interest or
title to any Shares to the purported transferee. The Company shall not be
required to transfer on its books any Shares sold or transferred in violation of
any of the provisions set forth in this Agreement or to treat as owner of those
Shares or to pay dividends to any transferee to whom any of those Shares shall
have been so sold or transferred.
3. SALE OF THE COMPANY (Drag-along Rights).
(a) If at any time the Board, in accordance with the Bylaws and the Joint
Venture Agreement, approves a sale of all or substantially all the Company's
assets (determined on a consolidated basis) or a sale or exchange of all or
substantially all the Company's outstanding capital stock (whether by merger,
sale, recapitalization, consolidation, reorganization, combination or otherwise)
to any third party in an arm's-length transaction (an "Approved Sale"), each
Stockholder shall vote for, consent to and raise no objections against such
Approved Sale and shall waive any dissenters' rights, appraisal rights or
similar rights in connection therewith. If the Approved Sale is structured as a
sale of stock, each Stockholder shall agree to sell all its Shares and rights to
acquire Shares on the terms and conditions approved by the Board. Each
Stockholder shall take all necessary and desirable actions in its capacity as a
Stockholder in connection with the consummation of the Approved Sale as
requested by the Company (including attendance at meetings in person or by proxy
for purposes of obtaining a quorum and execution of written consents in lieu of
meetings).
(b) In order to secure each Stockholder's obligation to vote its Shares
and other voting securities of the Company in accordance with the provisions of
this Section 3, each Stockholder hereby appoints the Secretary of the Company
(the "Representative") as true and lawful proxy and attorney-in-fact, with full
power of substitution, to vote all of his, her or its Shares and other voting
securities of the Company for the approval and consummation of an Approved Sale
and all such other matters as expressly provided for in this paragraph. The
Representative may exercise the irrevocable proxy granted to it hereunder at any
time any Stockholder fails to comply with the provisions of this paragraph. The
proxies and powers granted by each Stockholder pursuant to this paragraph (c)
are coupled with an interest and are given to secure the performance of each
Stockholder's obligations and duties under this Section 3. Such proxies and
powers shall be irrevocable for so long as such Stockholder holds any Shares and
shall survive the death, incompetency, disability, bankruptcy or dissolution of
such Stockholder and the subsequent holders of his, her or its Shares.
(c) The provisions of this Section 3 shall terminate upon the consummation
of an initial public offering by the Company of its debt or equity securities.
4. REPRESENTATIONS AND WARRANTIES. Each Stockholder represents and
warrants that (a) this Agreement has been duly authorized, executed and
delivered by such Stockholder and constitutes the valid and binding obligation
of such Stockholder, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent conveyance or other similar
laws or by general equitable principles, and (b) such Stockholder has not
granted and is not a
party to any proxy, voting trust or other agreement which is inconsistent with,
conflicts with or violates any provision of this Agreement. No holder of Shares
shall grant any proxy or become party to any voting trust or other agreement
that is inconsistent with, conflicts with or violates any provision of this
Agreement.
5. LEGEND ON SHARE CERTIFICATES. Upon the execution of this Agreement, the
certificates of Common Stock subject to this Agreement shall bear the following
legend:
"THE VOTING AND TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE PROVISIONS OF THE STOCKHOLDER AGREEMENT DATED AS OF MAY
___, 2005, AS AMENDED AND IN EFFECT FROM TIME TO TIME, AMONG THE COMPANY
AND THE STOCKHOLDERS NAMED THEREIN, A COPY OF WHICH IS ON FILE AT THE
OFFICES OF THE COMPANY."
6. TRANSFERS; FUTURE SALES; STOCK DIVIDENDS. Prior to (i) the Company
issuing shares to any Person, or (ii) any holder of Shares transferring any
Shares (other than pursuant to an Initial Public Offering) to any Person, the
Company or such holder shall cause the prospective Stockholder or transferee to
be bound by this Agreement and to execute and deliver to the Company and the
other Stockholders a counterpart signature page to this Agreement in the form of
Exhibit A hereto. Such Stockholder or transferee of Shares of Common Stock shall
be deemed to be a Stockholder hereunder in respect of those shares from and
after the date such transferee executes this Agreement. Promptly following such
action, the Company shall amend Schedule 1 attached hereto and provide such
Schedule 1, as amended, to the other parties to this Agreement. If, from time to
time, during the term of this Agreement there is any stock dividend, stock split
or similar other change in the character or amount of any of the outstanding
Common Stock of the Company, then in such event any and all such new,
substituted or additional securities to which the Stockholders are entitled by
reason of their ownership of Common Stock shall be immediately subject to the
terms of this Agreement with the same force and effect as the shares of capital
stock presently subject to this Agreement.
7. TERMINATION OF AGREEMENT. This Agreement shall terminate upon the
earlier of (a) the consummation of a Qualified Public Offering (as defined
below) of any of its Shares, (b) the liquidation or sale of the Company (whether
by sale or transfer of more than 50% of its stock through a sale or merger, or a
sale of all or substantially all of its assets), or (c) as provided in the Joint
Venture Agreement. For purposes of this Agreement, a "Qualified Public Offering"
means a firm commitment underwritten Public Offering (as defined below) of
shares of the Company's Common Stock in which the net proceeds payable to the
Company shall be at least $50 million (before payment of underwriters' discounts
and commissions). "Public Offering" means any offering by the Company of its
equity or debt securities to the public pursuant to an effective registration
statement under the Securities Act of 1933, as then in effect, or any comparable
statement under any similar federal statute then in force (other than an
offering pursuant to a registration on Form X-0, X-0 or any comparable or
successor forms); or (c) the written consent of the parties to this Agreement.
8. AGREEMENT BINDING. This Agreement shall inure to the benefit of and be
binding upon the Stockholders and each of their heirs, successors and permitted
assigns. It shall also be binding upon any transferee and their heirs,
successors and permitted assigns of such transferee who has received any Shares.
9. ENTIRE AGREEMENT. This Agreement, the Joint Venture Agreement and the
documents listed in the Joint Venture Agreement constitute the entire agreement
of the parties as to the subject matter herein contained, superseding any and
all prior or contemporaneous oral and prior written agreements, understandings,
letters of intent or commitment letters.
10. AMENDMENT OR WAIVER OF AGREEMENT. Except as otherwise expressly
provided herein, any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively and either for a specified
period of time or indefinitely) with the written consent of (a) the Company and
(b) each of the Stockholders. Any amendment or waiver effected in accordance
with this Section 10 shall be binding upon each Stockholder and each
transferee of the Shares. Notwithstanding anything to the contrary in this
Section 10, subject to compliance with the terms of this Agreement, the Company
shall be entitled to include additional Stockholders as parties to this
Agreement in accordance with the provisions of Section 6 above, and to treat
such purchasers as Stockholders hereunder, by amending Schedule 1 attached
hereto and providing such Schedule 1, as amended, to the other parties to this
Agreement.
11. NOTICES. All communications and notices provided for hereunder shall
be sent in accordance with the notice provision in the Joint Venture Agreement.
12. GOVERNING LAW. This Agreement is made pursuant to, and will be
governed by and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed and to be performed wholly within such state.
13. INVALIDITY. If any portion or portions of this Agreement shall be
adjudged, declared, held, or ruled to be invalid for any reason, such invalidity
shall not be deemed to impair the validity of any other provision of this
Agreement.
14. GENDER AND NUMBER REFERENCES. All references to any gender shall
include all genders; all references to the singular shall include the plural;
and all references to the plural shall include the singular, unless the context
indicates otherwise.
15. REMEDIES. The parties hereto shall be entitled to enforce their rights
under this Agreement specifically, to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. The parties hereto agree and acknowledge that money damages would
not be an adequate remedy for any breach of the provisions of this Agreement and
that the Company and any Stockholder may in its sole discretion apply to any
court of law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
16. BUSINESS DAYS. If any time period for giving notice or taking action
hereunder expires on a day which is a Saturday, Sunday or legal holiday in the
state in which the Company's chief executive office is then located, the time
period shall automatically be extended to the business day immediately following
such Saturday, Sunday or legal holiday.
17. DESCRIPTIVE HEADINGS, ETC. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement. The use of the term "including" herein shall mean "including without
limitation."
18. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as it was drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party hereto by virtue of the
authorship of any of the provisions of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in multiple counterparts
(including by means of faxed signature pages), each of which shall be an
original and all which taken together shall constitute one and the same
agreement.
[Signature Pages to Follow]
IN WITNESS WHEREOF, the Common Stockholders and the Company have signed
this Agreement as of the day and year first above written.
THE COMPANY
______________________
By:____________________________________
Name:__________________________________
Title:_________________________________
COMMON STOCKHOLDERS
BRIDGETECH HOLDINGS INTERNATIONAL, INC.
By: ___________________________________
Name:
Title:
AMCARE LABS INTERNATIONAL, INC.
By: ___________________________________
Name:
Title:
EXHIBIT A
SIGNATURE PAGE TO THE
STOCKHOLDER AGREEMENT
DATED AS OF MAY __, 2005
NEWCO CORPORATION
AND ITS COMMON STOCKHOLDERS
The undersigned hereby executes the Stockholder Agreement (the
"AGREEMENT"), authorizes this signature page to be attached as a counterpart of
the Agreement, and hereby agrees to be bound by the Agreement (which it
represents it has reviewed and understands); and this signature page, together
with the signature pages of and the other Stockholders shall constitute
counterpart copies of the Agreement in accordance with the terms of the
Agreement.
________________________________________
Print Stockholder Name
By: ___________________________________
Name:
Title:
Address: ______________________
_____________________
_____________________
SCHEDULE 1
CAPITALIZATION OF THE COMPANY
SHARES OF OWNERSHIP
STOCKHOLDER COMMON STOCK PERCENTAGE
--------------------------------------- ------------ ----------
Bridgetech Holdings International, Inc.
Amcare Labs International, Inc.
SCHEDULE 6.1(c)
BRIDGETECH CONSENTS
None.
SCHEDULE 6.2(c)
AMCARE CONSENTS
None.
