Exhibit
10.2
MEMBERSHIP INTEREST EXCHANGE AGREEMENT
This
Membership Interest Exchange Agreement made this as of the
20
th day
of December 2007 by and among between SFH I Acquisition Corp., a
Delaware corporation, with a principal place of business located at
17395 N. Bay Road Suite 102 Sunny Isles, Florida 33160, (the
“Company” or “the Corporation”), Pharmco,
LLC, a Florida limited liability company with a principal place of
business located at 901 North Miami Beach Blvd., North Miami Beach,
Florida 33162(“Pharmco"), together with each of the members
of Pharmco (as hereinafter defined).
Recitals:
A.
The
Corporation has offered to issue ten million shares of its
common stock, $.0001 par value (the "Common Stock), to the
holders of Membership Interests of Pharmco (the "Pharmco
Membership Holders") in exchange for their contribution to the
Corporation of all of the issued and outstanding membership
interests of Pharmco (the “Pharmco Membership
Interests”).
B.
The
respective Boards of Directors of the Corporation and Pharmco
have determined that, subject to the terms, conditions,
agreements, representations and warranties set forth herein,
the exchange contemplated herein will serve the general
welfare and advantage of their respective
businesses.
C.
Subject
to the terms and conditions set forth herein, the Pharmco
Members desire to contribute and exchange all of the Pharmco
Membership Interests for shares of Common Stock of the
Corporation in the manner hereinafter set forth
herein.
D.
The
exchange is intended to comply with the requirements of
Section 368 of the Internal Revenue Code of 1986, as amended,
the Treasury Regulations promulgated thereunder and the
interpretive rulings issued pursuant thereto.
NOW,
THEREFORE, in consideration of the foregoing recitals, as well
as the mutual covenants hereinafter set forth, the parties
hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
EXCHANGE PROVISIONS
1.1
Contribution .
Subject
to the terms and conditions hereinafter set
forth:
(a)
Each
Pharmco Member agrees to contribute, transfer, assign and
convey at Closing all of their Pharmco Membership Interests to
the Corporation, together with all other rights, claims and
interests he or she may have with respect to Pharmco or its
respective assets, and all claims he may have against its
officers and directors, including, but not limited to, all
rights to unpaid dividends and all claims and causes of action
arising from or in connection with the ownership of Pharmco
Membership Interests or its issuance, excluding any right,
claim or interest of same arising under this Agreement or in
connection with the transaction contemplated by this
Agreement. Each Pharmco Member shall deliver to the Company at
Closing all of his membership certificates representing the
Pharmco Membership Interests.
(b)
The
Corporation agrees to issue to each Pharmco Member the
Member’s pro rata portion of the total number of
Membership Interests to be issued to the Pharmco
Members.
(c)
Attached hereto and marked Schedule 1.1 is a list of the
Pharmco Members, the number of Membership Interests and/or
their pro rata share in the outstanding Membership Interests
each owns as of the date of this Agreement and the number of
shares of Common Stock each will receive at
Closing.
1.2
No Registration .
(a)
Each
of the Pharmco Members acknowledges and agrees
that:
(i)
The
Common Stock to be issued to the Pharmco Members (the
"Exchanged Corporation Stock") is being issued to Pharmco
Members without registration under applicable federal and
state securities laws in reliance upon certain exemptions from
registration under such securities laws;
(ii)
Each
member has had the opportunity to ask questions of and receive
answers from the Corporation, Pharmco and their respective
executive officers concerning their businesses and the
Exchanged Corporation Stock and all such inquiries have been
completed to his satisfaction;
(iii)
Each
certificate representing shares of the Exchanged Corporation
Stock will bear a legend restricting its transfer, sale,
conveyance or hypothecation, unless such Exchanged Corporation
Stock is either registered under applicable securities laws or
an exemption from such registration is applicable, and
provided that if an exemption from registration is claimed,
the Corporation may require an opinion of legal counsel that,
as a result of such exemption, registration under the
securities laws is not required to transfer, sell, convey or
hypothecate such Exchanged Corporation Stock;
(iv)
Each
member shall not transfer any Exchanged Corporation Stock
except in compliance with all applicable securities
laws;
(v)
Each
member has a pre-existing personal or business relationship
with the Company or its officers, directors, agents or
controlling persons, and has relied, if at all, on the advice
of such persons in electing to participate in the transaction
herein contemplated and not on any representations of the
Corporation other than those expressly set forth herein, or by
reason of his business or financial experience could be
reasonably assumed to have the capacity to protect his own
interest in connection with the transaction;
(vi)
Each
member is acquiring the Exchanged Corporation Stock for his
own account, for investment purposes only and not with a view
to the sale or distribution thereof;
(vii)
He
has not received any general solicitation or general
advertising regarding the acquisition of the Exchanged
Corporation Stock;
(viii)
He
is capable of evaluating the merits and risks of an investment
in the Common Stock because he is a sophisticated investor by
virtue of his prior investments and has experience in
investments similar in nature to the Common Stock, including
investments in unlisted and unregistered securities, and has
knowledge and experience in financial and business matters in
general; and
(ix.)
Each
member agrees and understands that the terms and conditions of
this Agreement were not negotiated in an arm’s length
transaction as the manager of Pharmco is also the president of
the Company.
1.6
Closing .
Consummation of the contemplated transaction shall take place on
the date that all the conditions set forth herein are satisfied or
waived by the appropriate parties at the offices of Jeffrey G.
Klein, P.A., 2600 North Military Trail, Suite 270 Boca Raton, FL
33431 or at another time or place that is mutually agreeable to the
parties hereto, or on such other date at such other time as may be
mutually agreed upon in writing by the parties hereto (the
"Closing").
ARTICLE II
THE CORPORATION'S REPRESENTATIONS AND
WARRANTIES
The
Corporation hereby makes the following representations and
warranties to the Pharmco Members and Pharmco, each of which
the Corporation represents to be true and correct on the date
hereof and (except as the Corporation may notify Pharmco in
writing prior to the Closing) shall be deemed made again as of
the Closing and represented by the Corporation to be true and
correct at the time of the Closing.
2.1
Organization .
The Corporation is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Corporation has the full power and authority to conduct the
business in which it will engage upon completion of the transaction
contemplated herein. Except as set forth in the Corporation’s
filings with the Securities and Exchange Commission, the
Corporation does not have any subsidiary or equity interest in any
entity. Accurate,
current and complete copies of the Articles of Incorporation and
Bylaws of the Corporation have been filed with the Securities and
Exchange Commission and are available at
www.sec.gov .
2.2
Stock Ownership .
The authorized capital stock of the Corporation consists of one
hundred twenty million shares of
Common
Stock, consisting of one hundred million shares of Common
Stock and twenty million shares of Preferred Stock. There are
currently ten million shares of common stock issued and
outstanding. There are no preferred shares outstanding. The
Company is currently in negotiation for the possible issuance
of an additional 45 million shares of common stock in
connection with a potential acquisition.
All
the issued and outstanding shares of capital stock of the
Corporation are duly authorized, validly issued, fully paid
and nonassessable. Upon tender of the Pharmco membership
interests in the manner contemplated in Section 1.1 hereof,
legal and beneficial ownership of the Exchanged Corporation
Stock shall be transferred to and vested in the Pharmco
Members free and clear of all encumbrances,except those
required by Rule 144 of the Securities Act,and all the
Exchanged Corporation Stock shall be duly authorized, validly
issued, fully paid and nonassessable. There are no outstanding
bonds, debentures, notes or other indebtedness or other
securities of the Corporation having the right to vote (or
convertible into, or exchangeable for, securities having the
right to vote) on any matters on which shareholders of the
Corporation may vote. Except as set forth above, there are no
outstanding securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any
kind to which the Corporation is a party or by which it is
bound obligating the Corporation to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of
capital stock or other equity or voting securities of the
Corporation or obligating the Corporation to issue, grant,
extend or enter into any such security, option, warrant, call,
right, commitment, agreement, arrangement or undertaking.
There are no outstanding contractual obligations, commitments,
understandings or arrangements of the Corporation to
repurchase, redeem or otherwise acquire or make any payment in
respect of any shares of capital stock of the
Corporation.
2.3
Authority and Approval of Agreement .
(a)
The
execution and delivery of this Agreement by the Corporation
and the performance of all the Corporation's obligations
hereunder have been duly authorized and approved by all
requisite corporate action on the part of the Corporation
pursuant to applicable law. The Corporation has the power and
authority to execute and deliver this Agreement and to perform
all its obligations hereunder.
(b)
This
Agreement and any other documents, instruments and agreements
executed by the Corporation in connection herewith constitute
the valid and legally binding agreements of the Corporation,
enforceable against the Corporation in accordance with their
terms, except that (i) enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws of general application affecting the
enforcement of the rights and remedies of creditors; and (ii)
the availability of equitable remedies may be limited by
equitable principles.
Neither
the execution, delivery nor performance of this Agreement or
any other documents, instruments or agreements executed by the
Corporation in connection herewith, nor the consummation of
the transactions contemplated hereby: (i) constitutes a
violation of or default under (either immediately, upon notice
or upon lapse of time) the Articles of Incorporation or Bylaws
of the Corporation, any provision of any contract to which the
Corporation may be bound, any judgment or any law; or (ii)
will or could result in the creation or imposition of any
encumbrance upon, or give to any third person any interest in
or right to, the Exchanged Corporation Stock or any other
capital stock of the Corporation; or (iii) will or could
result in the loss or adverse modification of, or the
imposition of any fine or penalty with respect to, any
license, permit or franchise granted or issued to, or
otherwise held by or for the use of, the
Corporation.
2.5
Financial Statements .
The financial statements as filed by the Corporation with the
Securities and Exchange Commission set forth the financial
condition of the Company. The Financial Statements are true,
correct and complete, were prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods indicated, and accurately reflect the Corporation's
financial condition and the results of the Corporation's operations
for the periods and as of the dates which they purport to
cover.
2.6
Conduct Since Date of Balance Sheet .
Except as disclosed in
Schedule 2.6 hereto
or as otherwise set forth herein none of the following has occurred
since the date of the Balance Sheet:
(a)
Any
material adverse change in the financial condition,
obligations, capitalization, business, prospects or operations
of the Corporation, nor are there any circumstances known to
the Corporation which might result in such a material adverse
change or such an effect;
(b)
Any
settlement or other resolution of any dispute or proceeding
other than in the ordinary course of business;
(c)
Any
cancellation by the Corporation, without payment in full, of
any obligation to the Corporation of any shareholder,
director, officer or employee of the Corporation (or any
member of their respective families), or any entity in which
any shareholder, director or officer of the Corporation (or
any member of their respective families) has any direct or
indirect interests;
(d)
Any
payment, discharge or satisfaction of any obligation or
judgment, other than in the ordinary course of business;
or
(e)
Any
agreement obligating the Corporation to do or take any of the
actions referred to in this Section 2.7 outside the ordinary
course of business.
2.7
Labor Matters .
The Corporation is not and has never been a party to: (i) any
profit sharing, pension, retirement, deferred compensation, bonus,
stock option, stock purchase, retainer, consulting, health, welfare
or incentive plan or agreement or other employee benefit plan,
whether legally binding or not; or (ii) any plan providing for
"fringe benefits" to its employees, including, but not limited to,
vacation, disability, sick leave, Pharmco, hospitalization and life
insurance and other insurance plans, or related benefits; or (iii)
any employment agreement other than with Byron Webb. No former
employee of the Corporation has any claim against the Corporation
(whether under federal or state law, any employment agreement or
otherwise) on account of or for: (i) overtime pay; (ii) wages or
salary for any period; (iii) vacation, time-off or pay in lieu of
vacation or time-off; or (iv) any violation of any statute,
ordinance or regulation relating to minimum wages or maximum hours
of work. No person or party (including, but not limited to,
governmental agencies of any kind) has any claim or basis for any
action or proceeding against the Corporation arising out of any
statute, ordinance or regulation relating to discrimination in
employment or to employment practices or occupational safety and
health standards.
2.8
Environmental Matters .
The Corporation has not generated any hazardous wastes or engaged
in activities which are or could be interpreted to be potential
violations of laws or judicial decrees in any manner regulating the
generation or disposal of hazardous waste. There are no on-site or
off-site locations where the Corporation has stored, disposed or
arranged for the disposal of chemicals, pollutants, contaminants,
wastes, toxic substances, petroleum or petroleum products; there
are no underground storage tanks located on property owned or
leased by the Corporation, and no polychlorinated biphenyls are
used or stored at any property owned or leased by the
Corporation.
2.9
Books and Records .
The Corporation's books and records are and have been properly
prepared and maintained in form and substance adequate for
preparing audited financial statements in accordance with generally
accepted accounting principles, and fairly and accurately reflect
all of the Corporation's assets, obligations and accruals, and all
transactions (normally reflected in books and records in accordance
with generally accepted accounting principles) to which the
Corporation is or was a party or by which the Corporation or any of
its assets are or were affected.
2.10
Taxes .
Except as otherwise disclosed in this Agreement, or any applicable
SEC filings, all taxes due, owing and payable by the Corporation
have been fully paid. The amounts set up as provision for taxes on
the Balance Sheet are sufficient for the payment of all accrued and
unpaid taxes of the Corporation, whether or not disputed. The
amount set up as provision for taxes on the Corporation's books and
records for the current fiscal year through the Closing shall be
sufficient for the payment of all accrued and unpaid taxes of the
Corporation, whether or not disputed, for such period. No claim for
any tax due from or assessed against the Corporation is being
contested by the Corporation. None of the Corporation's tax returns
or reports has been audited by the Internal Revenue Service or any
state or local tax authority, and the Corporation has not received
any notice of deficiency or other adjustment from the Internal
Revenue Service or any state or local tax authority. There are no
agreements, waivers or other arrangements providing an extension of
time with respect to the assessment of any tax against the
Corporation, nor are there any tax proceedings now pending or
threatened against the Corporation. No state of facts exists or has
existed, nor has any event occurred, which would constitute grounds
for the assessment of any further tax against the
Corporation.
2.11
Litigation .
The Corporation is not a party to, the subject of, or threatened
with any litigation nor, to the best of the Corporation's
knowledge, is there any basis for any litigation. The Corporation
is not contemplating the institution of any
litigation.
2.12
Other Liabilities .
No claim of breach of contract, tort, product liability or other
claim, contingent or otherwise, has been asserted or threatened
against the Corporation nor, to the best of the Corporation's
knowledge, is capable of being asserted by any employee, creditor,
claimant or other person against the Corporation. No state of facts
exists or has existed, nor has any event occurred, which could give
rise to the assertion of any such claim by any person.
2.13
Judgments .
There is no outstanding judgment against the Corporation. There is
no health or safety problem involving or affecting the Corporation.
There are no open workers compensation claims against the
Corporation, or any other obligation, fact or circumstance which
would give rise to any right of indemnification on the part of any
current or former shareholder, director, officer, employee or agent
of the Corporation, or any heir or personal representative thereof,
against the Corporation or any successor to the businesses of the
Corporation.
2.14
Improper Payments .
Neither the Corporation, nor any of its current or former
shareholders, directors, officers or employees or agents, nor any
person acting on behalf of the Corporation, has, directly or
indirectly, made any bribe, kickback or other payment of a similar
or comparable nature, whether lawful or not, to any person, public
or private, regardless of form, whether in money, property or
services, to obtain favorable treatment for business secured or
special concessions already obtained. No funds or assets of the
Corporation were donated, lent or made available directly or
indirectly for the benefit of, or for the purpose of supporting or
opposing, any government or subdivision thereof, political party,
candidate or committee, either domestic or foreign. The Corporation
has not maintained and does not maintain a bank account, or any
other account of any kind, whether domestic or foreign, which
account was not or is not reflected in the Corporation's books
and
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