EXHIBIT 10
ACQUISITION AGREEMENT
This Agreement, entered into this 27th day of January, by, between and
among Zynex Medical Holdings, Inc. (Formerly Fox River Holdings, Inc.), a
Nevada corporation (hereinafter the "Purchaser"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the
sole Shareholder (hereinafter the "Shareholder") of Zynex Medical, Inc., a
Colorado corporation (hereinafter the "Company").
Witnesseth:
WHEREAS, Purchaser wishes to acquire, and Shareholder is willing to
transfer, all of the outstanding stock of the Company in exchange for common
stock of the Purchaser;
NOW, THEREFORE, in consideration of the mutual terms and covenants set
forth herein, Purchaser and Shareholder approve and adopt this Acquisition
Agreement and mutually covenant and agree with each other as follows:
ARTICLE I
Shares to be Transferred and Shares to be Issued
1.01 (a) On the closing date the Shareholder shall transfer to Purchaser
a certificate or certificates for the number of shares of the common stock of
the Company described in Schedule "A", attached hereto and incorporated
herein, which in the aggregate shall represent all of the issued and
outstanding shares of stock of the Company. Such certificate(s) shall be duly
endorsed in blank by Shareholder or accompanied by a duly executed stock power
in blank with the signature guaranteed. Alternatively, the Shareholder may
assign his rights to the shares if the shares have not been physically issued
in the form of stock certificates, or if the certificates have been lost.
(b) In exchange for the transfer of the common stock of the Company
pursuant to sub-section 1.01(a) hereof, Purchaser shall on the closing date
and contemporaneously with such transfer of the common stock of the Company to
it by the Shareholder, or rights thereto, issue and deliver to the Shareholder
the number of shares of common stock of the Purchaser specified on Schedule
"B" hereof.
2.02 The parties intend that this acquisition and exchange of shares is
to be a "tax free" exchange/transaction pursuant to Section 368(a)(1)(b) of
the Internal Revenue Code of the United States.
ARTICLE II
Representations and Warranties of Shareholder
2.01 Ownership of Stock.
Shareholder is the record owner and holder of the number of fully paid
and non-assessable shares of the Company listed in Schedule "A" hereto as of
the date hereof and will continue to own such shares of the stock of the
Company until the delivery thereof to the Purchaser on the closing date and
all such shares of stock are or will be on the closing date owned free and
clear of all liens, encumbrances, charges and assessments of every nature and
subject to no restrictions with respect to transferability. The Shareholder
will have full power and authority to assign and transfer his shares of the
Company in accordance with the terms hereof.
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ARTICLE III
Representations and Warranties of the Company and the Shareholder
3.01 Capitalization
Except for this Agreement, there are no outstanding options, contracts,
calls, commitments, agreements or demands of any character relating to the
stock of the Company owned by Shareholder, except that the Company has entered
into a subscription agreement with Stalwart Investments, LLC, a copy of which
has been provided to Purchaser.
3.02 Organization and Authority.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Colorado, with all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted, is duly
qualified and in good standing in every jurisdiction in which the property
owned, leased or operated by it, or the nature of the business conducted by
it, makes such qualification necessary to avoid material liability or material
interference in its business operations, and is not subject to any agreement,
commitment or understanding which restricts or may restrict the conduct of its
business in any jurisdiction or location. The Company is presently qualified
to do business in the State of Colorado.
(b) The outstanding shares of the Company are legally and validly
issued, fully paid and non-assessable.
(c) The Company does not own five percent (5%) or more of the
outstanding stock of any corporation, except as set forth in Draft Number 8 of
the Company's Confidential Private Placement Memorandum dated September ___,
2003 (the "Disclosure Statement").
(d) The minute book of the Company made available to Purchaser
contains complete and accurate records of all meetings and other corporate
actions of the shareholders and the Board of Directors (and any committee
thereof) of the Company.
(e) The Disclosure Statement contains a list of the officers,
directors and shareholders of the Company and copies of the articles of
incorporation and by-laws currently in effect of the Company.
(f) The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated hereby will not, subject to the
approval and adoption by the Shareholder of the Company, violate any provision
of the certificate/articles of incorporation or bylaws of the Company, or any
provisions thereof, or result in the acceleration of any obligation under, any
mortgage, lien, lease, agreement, instrument, court order, arbitration award,
judgment or decree to which the Company is a party, or by which it is bound,
and will not violate any other restriction of any kind or character to which
it is subject.
(g) The authorized capital stock of the Company is one hundred
million (100,000,000) shares of common stock, $.000001 par value, of which
approximately one million (1,000,000) shares of such stock will be issued
and outstanding at the time of closing.
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3.03 Financials.
(a) Un-audited financial statements (hereafter "financial
statements") of the Company as of December 31, 2001 and 2002, and for the
years then ended, and as of June 30, 2003 and for the six months then ended,
have been delivered by the Company to the Purchaser. Said financial
statements are true and correct in all material respects and present an
accurate and complete disclosure of the financial condition of the Company as
of its date and for the periods covered.
(b) All accounts receivable, if any, (net of reserves for doubtful
accounts) of the Company shown on the books of account on the statement date
and as incurred in the normal course of business since that date, are
collectible in the normal course of business.
(c) The Company has good and marketable title to all of its
assets, business and properties including, without limitation, all such
properties reflected in the balance sheet as of the statement date except as
disposed of in the normal course of business, free and clear of any mortgage,
lien, pledge, charge, claim or encumbrance, except as shown on said balance
sheet as of the statement date and, in the case of real properties except for
rights-of-way and easements which do not adversely affect the use of such
property. Any encumbrances will be included in the attached Disclosure
Statement.
(d) All currently used property and assets of the Company, or in
which it has an interest, or which it has in possession, are in good operating
condition and repair subject only to ordinary wear and tear.
3.04 Changes Since the Statement Date. Since the financial statement
date, except as disclosed in the Disclosure Statement, there will not have
been any material negative change in the financial position or assets of the
Company.
3.05 Liabilities. To the best of the knowledge of management, there are
no material liabilities of the Company, whether accrued, absolute, contingent
or otherwise, which arose or relate to any transaction of the Company, its
agents or servants occurring prior to the statement date, which are not
disclosed by or reflected in said financial statements, except as disclosed in
the Disclosure Statement. There are no such liabilities of the Company which
have arisen or relate to any transaction of the Company, its agents or
servants, occurring since the statement date, other than normal liabilities
incurred in the normal conduct of the business of the Company, and none of
which have a material adverse effect on the business or financial condition of
the Company, except as disclosed in the Disclosure Statement. As of the date
hereof, there are no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may hereafter give rise to
liabilities, except in the normal course of business of the Company, except as
disclosed in the Disclosure Statement.
3.06 Taxes. All federal, foreign, county and local income, ad valorem,
excise, profits, franchise, occupation, property, sales, use gross receipts
and other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by the Company, and there are no unpaid taxes which
are, or could become a lien on the properties and assets of the Company,
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except as provided for in the financial statements of their date, or have been
incurred in the normal course of business of the Company since that date. All
tax returns of any kind required to be filed have been filed and the taxes
paid or accrued.
3.07 Accuracy of All Statements Made by Company. No representation or
warranty by the Company and Shareholder in this Agreement, nor any statement,
certificate, schedule or exhibit hereto furnished or to be furnished by or on
behalf of the Shareholder pursuant to this Agreement, nor any document or
certificate delivered to Purchaser pursuant to this Agreement or in connection
with actions contemplated hereby, contains or shall contain any untrue
statement of material fact or omits or shall omit a material fact necessary to
make the statement contained therein not misleading.
3.08 Limitation of Subsequent Corporate Actions. It is expressly
understood and agreed that the Company, and its affiliates and Shareholder,
will take all steps necessary to insure that with respect to the operations of
the Purchaser the following:
1. For a period of eighteen months following the Acquisition, a)
there shall be no reverse split, and b) the assets existing Company shall
remain in place as part of the business operations; and
2. For a period of twelve months following the Acquisition, the
Purchaser will not undertake to register any shares pursuant to Form S-8.
ARTICLE IV
Representations and Warranties of Purchaser
Purchaser represents and warrants as follows:
4.01 Capitalization
Except for this Agreement, there are no outstanding options, contracts,
calls, commitments, agreements or demands of any character relating to the
stock of the Purchaser.
4.02 Organization and Authority.
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, with full
power and authority to enter into and perform the transactions contemplated by
this Agreement, and with all requisite corporate power and authority to own,
operate and lease its properties and to carry on its business as now being
conducted, is duly qualified and in good standing in every jurisdiction in
which the property owned, leased or operated by it, or the nature of the
business conducted by it, makes such qualification necessary to avoid material
liability or material interference in its business operations, and is not
subject to any agreement, commitment or understanding which restricts or may
restrict the conduct of its business in any jurisdiction or location. The
Purchaser is presently qualified to do business Nevada.
(b) The outstanding shares of the Purchaser are legally and
validly issued, fully paid and non-assessable.
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(c) The Purchaser does not own five percent (5%) or more of the
outstanding stock of any corporation, except as listed on the Disclosure
Statement.
(d) The minute book of the Purchaser made available to the
Company and Shareholder contains complete and accurate records of all meetings
and other corporate actions of the shareholders and the Board of Directors
(and any committee thereof) of the Purchaser.
(e) The stock records of the Purchaser made available to the
Company and Shareholder contain complete and accurate records maintained by
the Purchaser's transfer agent
(f) The Disclosure Statement contains a list of the officers,
directors and shareholders of the Purchaser and copies of the articles of
incorporation and by-laws currently in effect of the Purchaser.
(g) The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated hereby will not violate any
provision of the certificate/articles of incorporation or bylaws of the
Purchaser, or any provisions thereof, or result in the acceleration of any
obligation under, any mortgage, lien, lease, agreement, instrument, court
order, arbitration award, judgment or decree to which the Purchaser is a
party, or by which it is bound, and will not violate any other restriction of
any kind or character to which it is subject.
(h) The authorized capital stock of the Purchaser is one hundred
million (100,000,000) shares of common stock, $0.001 par value, of which
twenty-two million one hundred and fifty thousand five (22,155,000) shares of
such stock will be issued and outstanding at the time of closing, and ten
million (10,000,000) shares of preferred stock, $0.001 par value, of which no
shares will be outstanding at the time of the closing.
(i) Purchaser represents that at the time of closing it will have
no assets or liabilities other than that which is reflected in its audited
financial statements.
(j) Purchaser is, and at the time of the closing will be, current
in all of its filings under the Securities Exchange Act of 1934, as amended,
and such filings fully comply with applicable requirements.
(k) Purchaser represents that at the time of closing it has taken
all necessary steps to comply with all applicable state and federal securities
laws and regulations and that, to the knowledge of the Purchaser, at the time
of closing, there is no litigation, arbitration, governmental or other
proceeding (formal or informal), claim or investigation pending or threatened,
with respect to the Purchasers compliance with any and all applicable
securities laws and regulations.
4.03 Performance of This Agreement. The execution and performance of
this Agreement and the issuance of stock contemplated hereby has been
authorized by the board of directors of Purchaser.
4.04 Financials.
(a) True copies of the audited financial statements of the
Purchaser as of September 30, 2002 have been delivered by the Purchaser.
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These statements have been examined and certified by Bierwolf, Nilson and
Associates, certified public accountants. Unaudited Interim financial
statements through June 30, 2003, which have been reviewed by Purchaser's
auditors, have also been delivered to the Company,. Said financial statements
are true and correct in all material respects and present an accurate and
complete disclosure of the financial condition and earnings of the Purchaser
for the periods covered, in accordance with generally accepted accounting
principles applied on a consistent basis.
(b) All accounts receivable, if any, (net of reserves for doubtful
accounts) of the Purchaser shown on financial statement, and as incurred in
the normal course of business since that date, are collectible in the normal
course of business.
(c) The Purchaser has good and marketable title to all of its
assets, business and properties including, without limitation, all such
properties reflected in the aforementioned balance sheet, except as disposed
of in the normal course of business, free and clear of any mortgage, lien,
pledge, charge, claim or encumbrance, except as shown on said balance sheet,
and, in the case of real properties, except for rights-of-way and easements
which do not adversely affect the use of such property.
4.05 Changes Since Date of Financial Statements. Since the date of the
financial statements, except as disclosed in writing, there has not been any
material change in the financial position or assets of the Purchaser.
4.06 Liabilities. To the best of the knowledge of management, there are
no material liabilities of the Purchaser, whether accrued, absolute,
contingent or otherwise, which arose or relate to any transaction of the
Purchaser, its agents or servants occurring prior to the statement date, which
are not disclosed by or reflected in said financial statements, except as
disclosed in the Disclosure Statement. There are no such liabilities of the
Purchaser which have arisen or relate to any transaction of the Purchaser, its
agents or servants, occurring since the statement date, other than normal
liabilities incurred in the normal conduct of the business of the Purchaser,
and none of which have a material adverse effect on the business or financial
condition of the Purchaser, except as disclosed in the Disclosure Statement.
As of the date hereof, there are no known circumstances, conditions,
happenings, events or arrangements, contractual or otherwise, which may
hereafter give rise to liabilities, except in the normal course of business of
the Purchaser, except as disclosed in the Disclosure Statement.
4.07 Taxes. All federal, foreign, county and local income, ad valorem,
excise, profits, franchise, occupation, property, sales, use gross receipts
and other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by the Purchaser, and there are no unpaid taxes which
are, or could become a lien on the properties and assets of the Purchaser,
except as provided for in the financial statements of their date, or have been
incurred in the normal course of business of the Purchaser since that date.
All tax returns of any kind required to be filed have been filed and the taxes
paid or accrued.
4.08 Accuracy of All Statements Made by Purchaser. No representation or
warranty by the Purchaser in this Agreement, nor any statement, certificate,
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schedule or exhibit hereto furnished or to be furnished by the Purchaser
pursuant to this Agreement, nor any document or certificate delivered to the
Company or the Shareholder pursuant to this Agreement or in connection with
actions contemplated hereby, contains or shall contain any untrue statement of
material fact or omits or shall omit a material fact necessary to make the
statement contained therein not misleading.
4.09 Legality of Shares to be Issued. The shares of common stock of
Purchaser to be delivered pursuant to this Agreement, when so delivered, will
have been duly and validly authorized and issued by Purchaser and will be
fully paid and non-assessable.
4.10 No Covenant as to Tax Consequences. It is expressly understood and
agreed that neither Purchaser nor its officers or agents have made any
warranty or agreement, expressed or implied, as to the tax consequences of the
transactions contemplated by this Agreement or the tax consequences of any
action pursuant to or growing out of this Agreement.
ARTICLE V
Covenants of Company and Shareholder
5.01 Access to Information. Purchaser and its authorized
representatives shall have full access during normal business hours to all
properties, books, records, contracts and documents of the Company, and the
Company shall furnish or cause to be furnished to Purchaser and its authorized
representative all information with respect to the affairs and business of the
Company as Purchaser may reasonably request.
5.02 Actions Prior to Closing. From and after the date of this
Agreement and until the closing date, the Company shall not materially alter
its business.
ARTICLE VI
Covenants of Purchaser
6.01 Access to Information. The Company and Shareholder and their
authorized representatives shall have full access during normal business hours
to all properties, books, records, contracts and documents of the Purchaser,
and the Purchaser shall furnish or cause to be furnished to the Company and
Shareholder or their authorized representatives all information with respect
to its affairs and business of the Purchaser as the Company and Shareholder or
their representatives may reasonably request.
6.02 Actions Prior to Closing. From and after the date of this
Agreement and until the closing date, the Purchaser shall not materially alter
its business or incur any liabilities except as consented to by the Company
and Shareholder in writing.
ARTICLE VII
Conditions Precedent to Purchaser's Obligations
Each and every obligation of Purchaser to be performed on the closing
date shall be subject to the satisfaction of the Purchaser of the following
conditions:
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7.01 Truth of Representations and Warranties. The representations and
warranties made by the Company and Shareholder in this Agreement or given on
its behalf hereunder shall be substantially accurate in all material respects
on and as of the closing date with the same effect as though such
representations and warranties had been made or given on and as of the closing
date.
7.02 Compliance with Covenants. Shareholder and the Company shall have
performed and complied with all obligations under this Agreement which are to
be performed or complied with by them prior to or on the closing date,
including the delivery of the closing documents specified hereafter.
7.03 Absence of Suit. No action, suit or proceedings before any court
or any governmental or regulatory authority shall have been commenced or
threatened and, no investigation by any governmental or regulatory authority
shall have been commenced, against the Shareholder, the Company or any of the
affiliates, associates, officers or directors of any of them, seeking to
restrain, prevent or change the transactions contemplated hereby, or
questioning the validity or legality of any such transactions, or seeking
damages in connection with any of such transactions.
7.04 Receipt of Approvals, Etc. All approvals, consents and/or waivers
that are necessary to effect the transactions contemplated hereby shall have
been received.
7.05 No Material Adverse Change. As of the closing date there shall not
have occurred any material adverse change which materially impairs the ability
of the Company to conduct its business or the earning power thereof on the
same basis as in the past.
7.06 Accuracy of Financial Statement. Purchaser and its representatives
shall be satisfied as to the accuracy of all balance sheets, statements of
income and other financial statements of the Company furnished to Purchaser
herewith.
7.07 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as Purchaser may request shall have
been delivered to Purchaser. The Company and the Shareholder shall have
delivered certificates in such detail as Purchaser may request as to
compliance with the conditions set forth in this Article 6.
ARTICLE VIII
Conditions Precedent to Obligations of the Company and Shareholder
Each and every obligation of the Company and Shareholder to be performed
on the closing date shall be subject to the satisfaction prior thereto of the
following conditions:
8.01 Truth of Representations and Warranties. The representations and
warranties of Purchaser contained in this Agreement shall be true at and as of
the closing date as though such representations and warranties were made at
and as of the transfer date.
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8.02 Purchaser's Compliance with Covenants. Purchaser shall have
performed and complied with its obligations under this Agreement which are to
be performed or complied with by it prior to or on the closing date.
8.03 Absence of Suit. No action, suit or proceedings before any court
or any governmental or regulatory authority shall have been commenced or
threatened and, no investigation by any governmental or regulatory authority
shall have been commenced against Purchaser, or any of the affiliates,
associates, officers or directors of the Purchaser seeking to restrain,
prevent or change the transactions contemplated hereby, or questioning the
validity or legality of any such transactions, or seeking damages in
connection with any of such transactions.
8.04 Receipt of Approvals, Etc. All approvals, consents and/or waivers
that are necessary to effect the transactions contemplated hereby shall have
been received.
8.05 No Material Adverse Change. As of the closing date there shall not
have occurred any material adverse change which materially impairs the ability
of the Purchaser to conduct its business or the earning power thereof on the
same basis as in the past.
8.06 Accuracy of Financial Statements. The Company and the Shareholder
shall be satisfied as to the accuracy of all balance sheets, statements of
income and other financial statements of the Purchaser furnished to the
Company herewith.
8.07 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as the Company may request shall have
been delivered to the Company. The Purchaser shall have delivered
certificates in such detail as the Shareholder may request as to compliance
with the conditions set forth in this Article 8.
8.08 Cancellation of Shares. The President of the Purchaser shall have
agreed to the cancellation of all but 5,000 shares of common stock currently
held by him effective as of the closing of the Acquisition.
8.08 Legal Opinion. The Company and Shareholder shall have received an
opinion of Purchaser's counsel as to certain legal matters in form and
content acceptable to counsel to the Company and Shareholder.
ARTICLE IX
Indemnification
The Shareholder and the Company shall indemnify Purchaser for any loss,
cost, expense or other damage suffered by Purchaser resulting from, arising
out of, or incurred with respect to the falsity or the breach of any
representation, warranty or covenant made by the Company herein. Purchaser
shall indemnify and hold the Shareholder and the Company harmless from and
against any loss, cost, expense or other damage (including, without
limitation, attorneys' fees and expenses) resulting from, arising out of, or
incurred with respect to, or alleged to result from, arise out of or have been
incurred with respect to, the falsity or the breach of any representation,
covenant, warranty or agreement made by Purchaser herein.
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ARTICLE X
Security Act Provisions
10.01 Restrictions on Disposition of Shares. Shareholder covenants and
warrants that the shares received are acquired for his own accounts and not
with the present view towards the distribution thereof and will not dispose of
such shares except (i) pursuant to an effective registration statement under
the Securities Act of 1933, as amended, or (ii) in any other transaction
which, in the opinion of counsel, acceptable to Purchaser, is exempt from
registration under the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. In order to
effectuate the covenants of this sub-section, an appropriate endorsement will
be placed upon each of the certificates of common stock of the Purchaser at
the time of distribution of such shares pursuant to this Agreement, and stop
transfer instructions shall be placed with the transfer agent for the
securities.
10.02 Notice of Limitation Upon Disposition. The Shareholder is aware
that the shares distributed pursuant to this Agreement will not have been
registered pursuant to the Securities Act of 1933, as amended; and, therefore,
under current interpretations and applicable rules, Shareholder will probably
have to retain such shares for a period of at least one year and at the
expiration of such one year period sales may be confined to brokerage
transactions of limited amounts requiring certain notification filings with
the Securities and Exchange Commission and such disposition may be available
only if the Purchaser is current in its filings with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, or other
public disclosure requirements, and the other limitations imposed thereby on
the disposition of shares of the Purchaser. Additionally, "affiliates" owning
shares will be subject to additional restrictions limiting sales.
10.03 Limited Public Market for Common Shares. The Shareholder
acknowledges that the common shares being issued pursuant to this agreement
currently have a limited public market in which the shares may be liquidated
and there is no assurance that such pubic market will grow or develop.
ARTICLE XI
Closing
11.01 Time. The closing of this transaction ("closing") shall be
effective on such date set by the parties. Such date is referred to in this
agreement as the "closing date."
11.02 Documents To Be Delivered by Shareholder. At the closing
Shareholder shall deliver to Purchaser the following documents:
(a) Certificate(s) or assignment(s) for all shares of stock of the
Company in the manner and form required by sub-section 1.01 hereof.
(b) A certificate signed by the President of the Company that the
representations and warranties made by the Company in this Agreement are true
and correct on and as of the closing date with the same effect as though such
representations and warranties had been made on or given on and as of the
closing date and that Shareholder and the Company have performed and complied
with all of their obligations under this Agreement which are to be performed
or complied with by or prior to or on the closing date.
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(c) A copy of the by-laws of the Company certified by its
secretary and a copy of the articles of incorporation, and any amendments
thereto, of the Company.
(d) A certificate or letter from Shareholder evidencing the taking
of the shares in accordance with the provisions of this agreement and his
understanding of the restrictions thereunder.
(e) Such other documents of transfer, certificates of authority
and other documents as Purchaser may reasonably request.
(f) A certified copy of the duly adopted resolutions of the board
of directors of the Company authorizing or ratifying the execution and
performance of this Agreement and authorizing or ratifying the acts of its
officers and employees in carrying out the terms and provisions thereof.
11.03 Documents To Be Delivered by Purchaser. At the closing Purchaser
shall deliver to Shareholder the following documents:
(a) A Certificate for the number of shares of common stock of
Purchaser as determined in Article 1 hereof.
(b) A certified copy of the duly adopted resolutions of the board
of directors of Purchaser authorizing or ratifying the execution and
performance of this Agreement and authorizing or ratifying the acts of its
officers and employees in carrying out the terms and provisions thereof.
(c) A certificate signed by the President of the Purchaser that
the representations and warranties made by the Purchaser in this Agreement
are true and correct on and as of the closing date with the same effect as
though such representations and warranties had been made on or given on and as
of the closing date and that the Purchaser has performed and complied with
all of its obligations under this Agreement which are to be performed or
complied with by or prior to or on the closing date.
(d) Documents for the appointment of new management and the
resignation of current management.
(e) Duly executed documents evidencing the surrender for
cancellation of all but 5,000 shares of common stock of the Purchaser held by
the President of the Purchaser.
(f) The opinion of Purchaser's counsel as required by Section 8.09
of this Agreement.
ARTICLE XII
Termination and Abandonment
This Agreement may be terminated and the transaction provided for by this
Agreement may be abandoned without liability on the part of any part to any
other, at any time before the closing date, or on a post closing basis as
provided previously herein:
(a) By mutual consent of Purchaser and the Shareholder;
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(b) By Purchaser if any of the conditions provided for in Article
7 of this Agreement have not been met and have not been waived in writing by
Purchaser.
(c) By the Company if any of the conditions provided for in
Article 8 of this Agreement have not been met and have not been waived in
writing by the Company.
In the event of termination and abandonment by any party as above
provided in this Article, written notice shall forthwith be given to the other
party, and each party shall pay its own expenses incident to preparation for
the consummation of this Agreement and the transactions contemplated
hereunder.
ARTICLE XIII
Miscellaneous
1. Notices. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given, if delivered by hand or
mailed, certified or registered mail with postage prepaid:
(a) If to the Company or the Shareholder, to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other
person and place as the Company shall furnish to Purchaser in writing, with a
copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ , at ▇▇▇▇ ▇▇▇▇▇, P.C. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) If to Purchaser, to ▇▇▇▇ ▇▇▇▇▇▇, c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C., ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or to such other person and place as
Purchaser shall furnish to Company in writing.
2. Announcements. Announcements concerning the transactions provided
for in this Agreement by either the Company or Purchaser shall be subject to
the approval of the other in all essential respects, except that the approval
of the Company shall not be required as to any statements and other
information which Purchaser may submit to its shareholders.
3. Default. Should any party to this Agreement default in any of the
covenants, conditions, or promises contained herein, the defaulting party
shall pay all costs and expenses, including a reasonable attorney's fee, which
may arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by the statutes of the State of Nevada, United States of
America.
4. Assignment. This Agreement may not be assigned in whole or in part
by the parties hereto without the prior written consent of the other party or
parties, which consent shall not be unreasonably withheld.
5. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their successors and
assigns.
6. Holidays. If any obligation or act required to be performed
hereunder shall fall due on a Saturday, Sunday or other day which is a legal
holiday established by the State of Nevada, such obligation or act may be
performed on the next succeeding business day with the same effect as if it
had been performed upon the day appointed.
12
7. Computation of Time. The time in which any obligation or act
provided by this Agreement is to be performed is computed by excluding the
first day and including the last, unless the last day is a holiday, in which
event such day shall also be excluded.
8. Governing Law and Venue. This Agreement shall be governed by and
interpreted pursuant to the laws of the Sate of Nevada. Any action to enforce
the provisions of this Agreement shall be brought in a court of competent
jurisdiction within the State of Nevada and in no other place.
9. Partial Invalidity. If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance shall
to any extent be invalid or unenforceable, the remainder of this Agreement or
application of such term or provision to persons or circumstances other than
those as to which it is held to be invalid or unenforceable shall not be
affected thereby and each term, covenant, condition or provision of this
Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law.
10. No Other Agreements. This Agreement constitutes the entire Agreement
between the parties and there are and will be no oral representations which
will be binding upon any of the parties hereto.
11. Rights are Cumulative. The rights and remedies granted hereunder
shall be in addition to and cumulative of any other rights or remedies
provided under the laws of the State of Nevada.
12. Waiver. No delay or failure in the exercise of any power or right
shall operate as a waiver thereof or as an acquiescence in default. No single
or partial exercise of any power or right hereunder shall preclude any other
or further exercise thereof or the exercise of any other power or right.
13. Survival of Covenants, Etc. All covenants, representations, and
warranties made herein to any parties or in any statement or document
delivered to any party hereto, shall survive the making of this Agreement and
shall remain in full force and effect until the obligations of such party
hereunder have been fully satisfied.
14. Further Action. The parties hereto agree to execute and deliver such
additional documents and to take such other and further action as may be
required to carry out fully the transaction(s) contemplated herein.
15. Amendment. This Agreement or any provision hereof may not be
changed, waived, terminated or discharged except by means of a written
supplemental instrument signed by the party or parties against whom
enforcement of the change, waiver, termination, or discharge is sought.
16. Headings. The descriptive headings of the various Sections or parts
of this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
17. Counterparts. This agreement may be executed in two or more
partially or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument, provided that Purchaser shall have
no obligations hereunder until the Shareholder and the Company have become
signatories hereto.
13
IN WITNESS WHEREOF, the parties hereto executed the foregoing Acquisition
Agreement as of the day and year first above written.
PURCHASER: Zynex Medical Holdings, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, President
COMPANY: Zynex Medical, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ , President
SHAREHOLDER: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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SCHEDULE A
Name Shares To Be Purchased
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,000,000
SCHEDULE B
Name Shares To Be Issued
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 19,500,000