ASSET PURCHASE AGREEMENT
between
LET'S TALK HEALTH, INC., (Seller)
and
SIERRA-ROCKIES CORPORATION, (Buyer)
Dated as of January 1, 2004
ASSET PURCHASE AGREEMENT (this "Agreement") dated as of January 1, 2004
by and between
LET'S TALK HEALTH, INC., a California corporation ("Seller"), and
SIERRA-ROCKIES CORPORATION, a California corporation ("Buyer").
This Agreement is entered into as part of a Plan of Reorganization
proposed by the Buyer to the United States Bankruptcy
Court, Southern District of California. On January 2,
2003, the Buyer commenced a bankruptcy case by filing a
voluntary Chapter 11 petition for relief under title 11 of
the United States Code (the "Bankruptcy Code"), 11 U.S.C.
ss 101 et seq. Chapter 11 allows a Debtor (here, the
Buyer), and under some circumstances, creditors and other
parties in interest, to propose a plan of reorganization
(the "Plan"). The Plan, including the asset purchase
contemplated hereby, must be approved by the Court.
Therefore this Agreement is subject to Court approval and
it will not be consummated unless first approved by the
Court.
This Agreement sets forth the terms and conditions upon which
Seller is selling and Buyer is purchasing certain assets
(other than Excluded Assets, as defined below) of Seller's
Nutritional Supplement Sales division, provided Buyer's
Plan of Reorganization, which includes this transaction,
is approved by the Court.
Accordingly, in consideration of the premises and the
representations, warranties and agreements herein
contained, the parties hereto agree, conditioned on the
approval of the Court, as follows:
I. DEFINITIONS
The following definitions shall apply for purposes of this
Agreement (such definitions to be equally applicable to
both the singular and plural forms of the terms defined):
1.1 "Business" means (i) the selling of nutritional supplements
and related products in North America; and (ii) the
provision of promotion, marketing and sales services and
other ancillary activities relating to and provided in
connection with the foregoing.
1.2 "Encumbrances" means, to the extent applicable, all claims,
liens (including liens for taxes), mortgages, security
interests, leases, options, rights of first refusal or
first offer, easements or other similar encumbrances.
1.3 "Intellectual Property" means the trade names and proprietary
formulations listed on Schedule 1.3, and all registered
trademarks and goodwill associated therewith.
1.4 "Knowledge", "to Seller's Knowledge" and variations thereof
shall mean that which is actually known by an executive
officer of Seller and with no requirement of due inquiry
or that such officers "should have known."
1.5 "Leased Premises" shall mean that office space located at
0000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx presently
utilized by the Seller.
1.6 "Material Adverse Change" or "Material Adverse Effect" means,
when used with respect to Seller or Buyer, as the case may
be, any change or effect that is or, so far as can be
reasonably determined, is likely to be materially adverse
to the assets, properties, condition (financial or
otherwise), business (including, without limitation, the
Business) or results of operations of Seller or Buyer, as
the case may be, taken as a whole.
1.7 "North America" means the United States, Canada, and Mexico.
1.8 "Permitted Encumbrances" means Encumbrances that (a) are liens
for taxes not yet due and payable, (b) do not,
individually or in the aggregate, materially detract from
the value of the assets to which they attach, (c) are
mechanics', carriers', materialmen's, landlords', workers'
or other similar liens incurred in the ordinary course of
business or (d) relate to assets owned by third parties
that are used by the Company in its operations.
1.9 "Post-Closing Financial Statements" means (i) financial
statements (balance sheets, statements of income, and
statements of cash flows) for the Business for the quarter
ending June 30, 2003 and for each month of operations
thereafter concluding with the month first written above.
The Statements shall be prepared by Seller's regular
accountants.
1.10 "Transaction Documents" means this Agreement together with
all of its Schedules.
1.11 "Transferred Employees" means the individuals listed on
Schedule 1.11.
II. THE ASSET PURCHASE
The Asset Purchase.
(a) Upon the terms and subject to the conditions of this
Agreement, Seller hereby sells, conveys, assigns,
transfers and delivers to Buyer free and clear of all
Encumbrances (other than Permitted Encumbrances and except
as expressly provided herein), and Buyer hereby purchases
from Seller, the Business and all the assets, properties
and rights owned or leased by Seller and constituting the
Business (the "Purchased Assets"), including without
limitation:
all of Seller's right, title and interest in and to the inventory of
nutritional supplements for sale listed on Schedule 2.1
and having a cost basis of not less than $100,000.
all customer lists, sales data, brochures, catalogs, mailing lists, art
work, photographs and advertising material that are used
in the Business, whether in electronic form or otherwise;
all of Seller's interest in governmental permits, licenses,
registrations, certificates, consents, orders and
approvals necessary for the continued operation of the
Business;
all trade secrets, proprietary formulations, work notes, market studies,
reports of scientific studies and similar property,
tangible or intangible, used in the Business;
copies of all records of Seller material to the operation of the
Business, including property, tax and marketing records,
and copies of personnel records of Transferred Employees;
all right, title and interest in and to the goodwill incident to the
Business;
all prepaid expenses of, or for the benefit of, the Business;
all computers used in the Business, including all laptop computers
currently used by a Transferred Employee;
subject to any license agreements regarding such software, all software
resident on computers used in the Business (other than any
software not useful in the Business); and
all other assets material to the operation of the Business (including
without limitation all furniture, fixtures, and equipment,
all causes of action, contract rights and warranty claims,
whether or not in litigation on the date hereof).
(b) The following assets (collectively, the "Excluded Assets")
shall be excluded from this Agreement, and shall not be
assigned or transferred to Buyer:
any right, title or interest in sales of nutritional supplements where
such supplements are sold and shipped to buyers outside
North America (the United States, Canada, or Mexico);
any right, title or interest in the copyrights to books or booklets sold
by Seller;
cash and cash equivalents and similar type investments;
Seller's accounts receivable;
leases and contracts, other than those set forth on Schedule 1.3 or
otherwise specifically transferred pursuant to the terms
hereof;
assets constituting any pension funds or segregated funds for the benefit
of Transferred Employees;
corporate minute books and stock books; and
except as otherwise provided herein, all of Seller's assets not
associated with the Business.
2.2 Purchase Price.
In consideration of the transfer to Buyer of the Assets and of
the assignment of the Intellectual Property, Buyer agrees
to deliver to Seller or its designees the following:
3,000,000 shares of the Buyer's Common Stock (the
"Shares"). The amount of Shares set forth above is
referred to herein as the "Purchase Price". Seller
understands that these shares are subject to resale
restrictions and acknowledges that it intends to hold them
for investment purposes and is not acquiring them with the
intent to resell them.
Assumption of Liabilities; Employee Matters.
(a) General Limitation on Assumption of Liabilities. Except
for Permitted Encumbrances and as otherwise provided in
this Section 2.3, Seller shall transfer the Purchased
Assets to Buyer free and clear of all Encumbrances, and
Buyer shall not, by virtue of its purchase of the
Purchased Assets, assume or become responsible for any
liabilities or obligations of Seller.
(b) Assumed Liabilities and Obligations. Buyer hereby
acquires the Purchased Assets subject only to, and shall
undertake, assume, perform and otherwise pay, satisfy and
discharge, and hold Seller harmless from, the liabilities
and obligations set forth in this Section 2.3 or relating
hereto.
(c) Offer of Employment. Buyer shall offer employment as of
the date hereof to all of the Transferred Employees. Buyer
shall keep on its payroll all Transferred Employees who
accept Buyer's offer of employment, except for those
Transferred Employees who may resign or be terminated for
cause, for at least 90 days after the Closing Date.
(d) Vacation Liability. Buyer shall assume liability as of
the date hereof for the vacation entitlement that each
Transferred Employee who becomes an employee of Buyer has
accrued and is listed in Schedule 2.3. Buyer shall pay
each Transferred Employee's wages or salary during such
vacation entitlement from Buyer, when taken.
(e) Other Employee Benefits. Seller agrees that, with
respect to claims for workers' compensation arising out of
events occurring prior to the date hereof and all claims
under Seller's employee benefit programs by, or in respect
of, persons employed by Seller arising out of events
occurring prior to the date hereof, regardless of whether
such employment had terminated and regardless of whether
such employee is employed by Buyer, whether reported or
unreported as of the date hereof, and whether insured or
uninsured (including, but not limited to, workers'
compensation, life insurance, medical and disability
programs), Seller shall, at its own expense, honor, or
cause its insurance carriers, if any, to honor, such
claims in accordance with the terms and conditions of such
programs or applicable workers' compensation statutes,
including any construction of such terms or conditions
ultimately made by any court or administrative body having
jurisdiction thereover. Without limiting the scope of the
preceding sentence, Seller and its affiliates shall be
responsible for any and all claims and liabilities arising
out of or relating to (i) Seller's employment of the
Transferred Employees or any former employees of Seller,
(ii) the termination by Seller of the employment of any
such Transferred Employee, former employee, consultant or
other agent of Seller, and (iii) the provision by Seller
of any employee benefits to such Transferred Employees,
former employees, retirees, disabled employees, or agents
of Seller (and their beneficiaries and eligible
dependents) attributable to their employment with, or
their participation in any plans or programs maintained or
contributed to, by Seller or any of its affiliates. Buyer
shall assume liability for all workers' compensation
claims for industrial injuries and illnesses, and any and
all claims and liabilities, occurring after the Closing
Date in respect to the Transferred Employees. Each
Transferred Employee shall be eligible to participate in
Buyer's benefit plans, subject to any limits or exclusions
imposed by the applicable insurance company, such as
exclusions for pre-existing conditions.
2.4 Intellectual Property. Seller hereby assigns to Buyer
the Intellectual Property and agrees to execute any
additional forms or agreements necessary to effect the
foregoing.
2.5 Further Assurances. From and after the date here of,
upon written request from Buyer, Seller shall execute,
acknowledge and deliver all such further acts, assurances,
deeds, assignments, transfers, conveyances and other
instruments and papers as may reasonably be required to
sell, assign, transfer, vest, convey and deliver full
right, title and interest in, and possession of, the
Purchased Assets to Buyer and to otherwise consummate the
transactions contemplated hereby.
III. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1. Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of
the State of California.
3.2. Authority. Seller has the full corporate power and
authority to execute and deliver the Transaction Documents
to which it is a party and to consummate the transactions
contemplated hereby. All corporate acts and other
proceedings required to be taken by or on the part of
Seller to authorize such execution, delivery and
consummation have been duly and properly taken. The
Transaction Documents have been duly executed and
delivered by Seller and constitute legal, valid and
binding obligations of Seller enforceable against Seller
in accordance with their respective terms. The execution
and delivery by Seller of the Transaction Documents and
the consummation of the transactions contemplated hereby
will not violate any applicable law, or conflict with,
result in any breach of, constitute a default (or an event
which with notice or lapse of time or both would become a
default) under, or result in the creation of an
Encumbrance on any of the properties or assets of Seller
pursuant to, the corporate charter or by-laws of Seller or
any indenture, mortgage, lease, agreement or other
instrument to which Seller is a party or by which its
properties or assets are bound. No material approval,
authorization, consent or other order or action of or
filing with any person, entity or court, administrative
agency or other governmental body in the United States of
America is required for the execution and delivery by
Seller of the Transaction Documents to which it is a party
or the consummation by Seller of the transactions
contemplated hereby.
3.3. Financial Statements. To its Knowledge, Seller does not
have any contingent or undisclosed obligations or
liabilities relating to the Business which would be
required in accordance with GAAP to be reflected in a
currently prepared balance sheet, other than obligations
or liabilities (i) that are disclosed in this Agreement or
the Schedules hereto, or (ii) that are not material to the
financial condition of the Business.
3.4. Retention of Customers. Except as set forth on Schedule
3.4, Seller does not know of anything that might
reasonably indicate that any of Seller's customers intends
to cease dealing with (or decline to deal with) the Buyer,
nor has any information been brought to the attention of
the Seller that might reasonably lead it to believe any
such customer intends to materially alter the amount of
such purchases or the extent of dealings with Buyer (as
compared to purchases and dealings with Seller as of the
date hereof).
3.5 Intangible Property Rights. Schedule 3.5 lists all
the trademarks, trade names, trade secrets, proprietary
formulations and other intangible property rights,
including all registered trademarks and goodwill
associated therewith, used in connection with the Business
(the "Intangible Property Rights"). Except as otherwise
disclosed in Schedule 3.5, (i) the Seller, to its
Knowledge, validly owns the Intangible Property Rights
free and clear of all Encumbrances other than Permitted
Encumbrances and (ii) no action, claim, suit or proceeding
has been brought against the Seller or, to the Knowledge
of Seller, has been threatened against the Seller with
respect to any material Intangible Property Rights.
3.6. Litigation. Except as disclosed in Schedule 3.6, Seller
is not subject to any judgment, order, writ, injunction or
decree of any court or any Federal, state, local or other
governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, or any arbitrator
that materially affects the operation of the Business.
3.7. Contracts. To Seller's Knowledge, Schedule 1.3 sets
forth a list of all executory contracts of the Business.
Except as disclosed in Schedule 1.3, to Seller's
Knowledge, each of the Contracts listed in Schedule 1.3 is
valid and in full force and effect, each party to each
such Contract has performed all material obligations
required to be performed by it thereunder, and no other
party to any such Contract has taken the position that
such Contract is not enforceable against any such other
parties by Seller.
3.8. Benefit Plans. Buyer shall not have liability under any
Benefit Plans, with respect to any employees of Seller or
their beneficiaries. "Benefit Plans" shall mean all
material "employee pension benefit plans" (as defined in
Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), "employee welfare
benefit plans" (as defined in Section 3(1) of ERISA), and
any other material employee fringe benefit plans
maintained, or contributed to, by the Company.
3.9. Accuracy. To Seller's Knowledge, the required
disclosures made in this Agreement and the schedules
attached hereto are complete and accurate in all material
respects, and the scheduled disclosures do not contain any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements or facts
contained therein, in light of the circumstances under
which they were made, not misleading.
3.10. Securities Act of 1933. The Shares purchased by Seller
pursuant to this Agreement are being acquired for
investment only and not with a view to any public
distribution thereof, and Seller will not offer to sell or
otherwise dispose of the Shares so acquired by it in
violation of the Securities Act of 1933.
IV. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1. Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of
the State of California.
4.2. Authority. On January 2, 2003, the Buyer commenced a bankruptcy
case by filing a voluntary Chapter 11 petition for relief
under title 11 of the United States Code (the "Bankruptcy
Code"), 11 U.S.C. ss 101 et seq. Chapter 11 allows the
Debtor, and under some circumstances, creditors and other
parties in interest, to propose a plan of reorganization
(the "Plan"). The transactions contemplated herein
constitute part of a Plan of Reorganization proposed by
the Buyer/Debtor. A Plan of Reorganization must be
approved by the United States Bankruptcy Court. Thus,
although Buyer has the full corporate power and authority
to execute and deliver the Transaction Documents and to
consummate the transactions contemplated herein, Buyer
will not execute and deliver the Transaction Documents and
consummate the transactions contemplated herein unless and
until they are approved by the Court. All other corporate
acts and other proceedings required to be taken by or on
the part of Buyer to authorize such execution, delivery
and consummation have been duly and properly taken. The
Transaction Documents will be duly executed and delivered
by Buyer and will constitute legal, valid and binding
obligations of Buyer enforceable against Buyer in
accordance with their respective terms, upon approval by
the Court of the Plan of Reorganization. The execution and
delivery by Buyer of the Transaction Documents and the
consummation of the transactions contemplated hereby and
thereby will not violate any law, or conflict with, result
in any breach of, constitute a default (or an event which
with notice or lapse of time or both would become a
default) under, or result in the creation of an
Encumbrance on any of the properties or assets of Buyer
pursuant to the corporate charter or by-laws of Buyer or
any indenture, mortgage, lease, agreement or other
instrument to which Buyer is a party or by which its
properties or assets are bound. The only material
approval, authorization, consent or other order required
before the execution and delivery by Buyer of the
Transaction Documents or the consummation by Buyer of the
transactions contemplated herein is the order of the
United States Bankruptcy Court hearing the Buyer's case.
4.3 Capital Stock of the Company. The authorized capital
stock of the Company consists of (i) 299,000,000 shares of
Common Stock, no par value (the "Common Stock"), and (ii)
1,000,000 shares of preferred stock, no par value. If the
Plan of Reorganization submitted by the Buyer to the Court
is approved, approximately 767,666 Units, each Unit
consisting of one common share and two warrants, each
warrant to purchase one common share, will be outstanding
prior to issuance of the shares contemplated herein. All
of the outstanding shares will be duly authorized, validly
issued and outstanding, fully paid and non-assessable. The
Shares will not be issued in violation of, and are not
subject to, any preemptive or subscription rights.
4.4. Legal Proceedings. On January 2, 2003 the Buyer
commenced a bankruptcy case by filing a voluntary Chapter
11 petition for relief under title 11 of the United States
Code (the "Bankruptcy Code"), 11 U.S.C. ss 101 et seq.
With the exception of this case there is no action, suit,
investigation, order, judgment or proceeding pending or,
to the knowledge of Buyer, threatened against or affecting
Buyer that, individually or when aggregated with one or
more other actions, suits, orders, judgments or
proceedings, has or might reasonably be expected to have a
material adverse effect on Buyer's ability to perform any
of its obligations hereunder or under any of the
Transaction Documents.
4.5 Brokers. No broker, investment banker or other person
is entitled to any broker's, finder's or similar fee or
commission in connection with the transactions
contemplated by this Agreement based upon arrangements
made by or on behalf of Buyer.
4.6 Accuracy. To Buyer's knowledge, the required
disclosures made in this Agreement and the schedules
attached hereto are complete and accurate in all material
respects, and the scheduled disclosures do not contain any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements or facts
contained therein, in light of the
circumstances under which they were made, not misleading.
V. FURTHER COVENANTS AND AGREEMENTS
Access; Information; Confidentiality.
(a) Each party, covenants and agrees, and shall cause each of
its officers, employees, attorneys, accountants and other
authorized representatives, to treat all information
obtained or developed by them concerning the other party
in strict confidence. Each party also covenants and agrees
to comply with all other confidentiality undertakings
heretofore agreed to between Buyer and Seller or their
representatives relating to the parties or the
transactions contemplated by this Agreement.
(b) If at any time it is necessary that a party be
furnished with additional information, documents or
records relating to the Purchased Assets or the Business
in order properly to prepare or support its tax returns or
other documents or reports required to be filed with
governmental authorities or any securities exchanges or
otherwise for any purpose in connection with the
performance or discharge by the parties of their
obligations hereunder, and such information, documents or
records are in the possession or control of the other
party, such other party agrees to use all reasonable
efforts to furnish or make available such information,
documents or records (or copies thereof).
5.2. Financial Statements. Seller covenants and agrees to
prepare and deliver the Post-Closing Financial Statements.
5.3. Fees and Expenses. Each party shall bear its own
expenses incurred in connection with the transactions
contemplated hereby.
5.4. Accounts Receivable. Buyer agrees to promptly remit to
Seller the amount of any payments received by Buyer which
belong to Seller's Accounts Receivable.
Indemnification.
(a) Each of Seller and Buyer shall indemnify and hold the
other harmless against and in respect of all actions,
suits, demands, judgments, costs and expenses (including
reasonable attorneys' fees) (collectively, "Damages")
relating to any misrepresentation, breach of any
representation or warranty or non-fulfillment of any
agreement on the part of such party in any Transaction
Document.
(b) Buyer shall indemnify and hold Seller harmless in
respect of Damages relating to the Transferred Employees
and the Business, in each case arising on or after the
date hereof. Seller shall indemnify and hold Buyer
harmless in respect of Damages relating to the Transferred
Employees and the Business, in each case arising prior to
the date hereof.
(c) The indemnification provided for in this Section
5.5 shall terminate and be of no further force and effect
one year from the date hereof, except as to any
representation or warranty as to which a written notice of
claim for indemnification has been given to the
indemnifying party prior to the expiration of such one-
year period. Neither party shall be liable pursuant to
this Section for any amounts which in the aggregate exceed
the Purchase Price.
5.6. Public Announcements. Unless otherwise required by law,
by the United States Bankruptcy Court, or the rules and
regulations of the Securities and Exchange Commission,
none of the parties shall issue any press release or make
any public statement with respect to this Agreement and
the transaction contemplated hereby except for an agreed
upon press release to be issued by the parties on the date
hereof.
5.7. Sales and Transfer Taxes. Seller shall pay all sales,
use, excise and/or transfer taxes due with respect to the
Business, provided that any property taxes relating to the
Leased Premises shall be prorated between the parties
based on their respective periods of occupancy during the
applicable taxing period.
5.8. Non-Competition Agreement of Seller. For a period of
five years following the date hereof, Seller shall not,
directly or indirectly, as principal, investor, or in any
similar capacity (i) engage in the business of selling
nutritional supplements in the United States, Canada, or
Mexico, (ii) own, manage, operate or control, or
participate in the ownership, management, operation or
control of, any business which directly or indirectly
competes with the Business anywhere in North America, or
(iii) with respect to the Business, interfere with,
disrupt or attempt to disrupt any present or prospective
relationship, contractual or otherwise, between Buyer
and any of its clients, customers, suppliers, employees or other related
parties, or employ, solicit or induce for hire any
Transferred Employee, or any of the employees, agents,
consultants or advisors of Buyer or any employee who has
left the employment of Buyer within six months of the
termination of said employee's employment with Buyer,
provided that nothing herein shall preclude Seller from
beneficially owning less than five percent of the stock of
any other publicly traded company or merging with any
other entity.
5.9. Non-Solicitation Agreement of Buyer. For a period of
five years following the date hereof, Buyer shall not
employ, solicit or induce for employment, directly or
indirectly, any employees of Seller or any individual who
has left the employment of Seller during the preceding six
months.
5.10. Seller agrees to direct to Buyer any inquiries received
by Seller within two years after the date hereof regarding
purchases or sales of nutritional supplements in North
America.
5.11. Use of Leased Premises. Seller agrees to assign to
Buyer all of its interest in the Leased Premises at 0000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, commencing on the
date hereof, and to vacate same on the date hereof.
5.12. Post-Closing Financial Statements. When delivered, the
Post-Closing Financial Statements will have been prepared
in accordance with generally accepted accounting
principles, consistently applied ("GAAP"), and will
constitute fair and reasonable presentations of the
financial position and results of operations of the
Business, in all material respects, as of the dates and
for the periods set forth therein.
VI. GENERAL PROVISIONS
6.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered
personally, sent by overnight courier or telecopied (with
a confirmatory copy sent by overnight courier) to the
parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) If to Buyer, to:
Sierra Rockies Corporation
Attn: Xxxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) If to Seller, to:
Let's Talk Health, Inc.
Attn: Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
6.2 Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated, and
the words "hereof," "herein" and "hereunder" and similar
terms refer to this Agreement as a whole and not to any
particular provision of this Agreement, unless the context
otherwise requires. The table of contents and headings
contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the
words "without limitation."
6.3 Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and
delivered to the other parties.
6.4 Entire Agreement; No Third-Party Beneficiaries. This
Agreement, together with the exhibits and other documents
referred to herein, is the product of both of the parties
hereto, and constitutes the entire agreement between such
parties pertaining to the subject matter hereof. This
Agreement, including the exhibits and other documents
referred to herein, is not intended to confer upon any
person other than the parties any rights or remedies
hereunder.
6.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
California, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws.
6.6 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be
assigned by any of the parties without the prior written
consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
6.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being
enforced by any rule of law, or public policy, all other
conditions and provisions of this agreement shall
nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions
contemplated hereby are not affected in any manner
materially adverse to any party. Upon determination that
any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate
in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions
be consummated as originally contemplated to the fullest
extent possible.
6.8 Enforcement of this Agreement. The parties agree that
irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at
law or in equity.
6.9 Consent to Jurisdiction. In the event that any legal
proceedings are commenced in any court with respect to any
matter arising under this Agreement, the parties hereto
specifically consent and agree that the courts of the
State of California and/or the Federal Courts located in
the State of California shall have jurisdiction over each
of the parties hereto and over the subject matter of any
such proceedings, and the venue of any such action shall
be in San Diego County, California and/or the United
States District Court for the Southern District of
California.
IN WITNESS WHEREOF, Buyer and Seller have executed this
Agreement as of the date first written above.
SIERRA-ROCKIES CORPORATION
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
LET'S TALK HEALTH, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President
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