EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT ("Agreement"), is made as of this 5th day
of November, 1996, by and among Coronado Industries, Inc., a New York
Corporation ("Coronado"), Ophthalmic International, L.L.C., an Arizona Limited
Liability Company ("Ophthalmic") and American Glaucoma, a joint venture
operated by G. Xxxxxxx Xxxxx and Xxxx Xxxxx ("American").
RECITALS
1. Coronado is a publicly traded corporation, organized under the
laws of the State of New York and in the process of changing the venue of the
corporation to the State of Nevada pursuant to a statutory merger, which
should be finalized within the next sixty (60) days.
2. Coronado currently has 20,000,000 common shares S.001 par value
("Common Shares") authorized for issuance and 429,125 Common Shares currently
outstanding. In addition, Coronado has 1,000,000 preferred shares $.0001 par
value per share authorized (and an additional 2,000,000 preferred shares
S.0001 par value approved for authorization by the shareholders) with no
preferred shares outstanding.
3. Ophthalmic is an Arizona Limited Liability Company which has been
organized for the purpose of developing and marketing an open angle glaucoma
treatment apparatus.
4. American is a newly established joint venture established for the
purpose of opening clinics to utilize the device developed by Ophthalmic.
5. Coronado is desirous of purchasing the assets and technology owned
by Ophthalmic and the business plan and proprietary fights owned by American
in exchange for Common Shares in Coronado, as more fully set forth in this
Agreement.
AGREEMENT
1.0 PURCHASE OF ASSETS
1.1 Ophthalmic will transfer to Coronado all tangible assets and equipment
owned by Ophthalmic as of the close of business on the day prior to the
closing date. Additionally, Ophthalmic will grant an exclusive license to
Coronado or a subsidiary formed by Coronado to produce and xxxx-et any and all
devices which have been developed by Ophthalmic for the treatment of glaucoma.
The aforementioned license shall be irrevocable for the period of the
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license, except in the event that Ophthalmic exercises its right under
paragraph 9.0 of this Agreement.
1.2 Ophthalmic shall assign to Coronado or a subsidiary formed by
Coronado, one year after the date of the closing of this Agreement, all right,
title and interest in any devices and/or methods that have been developed by
Ophthalmic, including, but not limited to all patents (both domestic and
international), patentable technology, trade secrets and technology contained
in devices and/or methods for which patents have been applied for, but not yet
granted. Provided, however, that Ophthalmic shall be relieved of this
obligation to transfer the aforementioned intellectual properties in the event
that Ophthalmic discovers that any of the representations and warranties
contained in this Agreement contain false or misleading statements regarding
any material fact, which, if had been initially revealed, would have effected
the decision of either Ophthalmic or American to enter into this Agreement.
Should Ophthalmic elect to decline to transfer the intellectual property as
set forth in this paragraph (and as more fully set forth in paragraph 9.0 of
this Agreement), Coronado agrees to return any other assets transferred to it
as a result of this Agreement and Ophthalmic shall return all shares issued to
it as consideration for the aforementioned assets.
1.3 American agrees to transfer to Coronado or a subsidiary formed by
Coronado all business plans, marketing plans, and other forms of work product
to be utilized in establishing clinics for the treatment of glaucoma. In the
event that American elects to utilize the remedies made available to it by
paragraph 9.0 of this Agreement, American can tender to Coronado all shares
issued to American and receive in exchange, all assets transferred pursuant to
this paragraph.
2.0 TRANSFER OF COMMON STOCK FOR ASSETS
2.1 INITIAL EXCHANGE PRICE
Coronado agrees that at the closing, it will transfer to Ophthalmic and
American an amount of its common stock to equal 85% of the then outstanding
shares of common stock in Coronado. The actual number of common shares
payable to Ophthalmic and American shall be based upon the number of
outstanding shares currently issued by the corporation
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(429,125), the number of common shares required to be issued by Coronado prior
to closing in order to obtain sufficient liquidity to pay all current
outstanding payables of Coronado (see paragraph 3.0 below) 15,592,224 shares
and the number of commission shares issued in conjunction with this Agreement
(see paragraph l0.0 below). The exact division of the Coronado common shares
to be issued is set forth in Exhibit "A" attached hereto and made a part
hereof.
2.2 ISSUANCE OF ADDITIONAL SHARES
The parties to this Agreement recognize that additional liquid capital is
required in order to complete the business plan established by Ophthalmic and
American. It is contemplated by the parties that Coronado will require
approximately $500,000 in order to adequately capitalize the aforementioned
business plan. Therefore, the parties agree that within one hundred twenty
(120) days after the closing of this Agreement, Coronado is authorized to
issue up to 200,000 additional shares of common stock in order to obtain the
$500,000 capitalization. It is understood by Ophthalmic and American that
these additional shares will dilute the 85% interest in Coronado acquired by
this Agreement, to the extent of the number of shares actually issued. In the
event that Coronado is unsuccessful in raising the $500,000 within the one
hundred twenty (120) days, Coronado agrees to issue an additional 2,000,000
common shares to the members of Ophthalmic and American. In the event that
the additional shares are issued, the members of Ophthalmic and American agree
to provide all of the necessary capitalization to complete the aforementioned
business plans.
3.0 ACCOUNTS PAYABLE OF CORONADO
It is a condition precedent to the closing of this Agreement that all
accounts payable currently owed by Coronado are satisfied in full. Ophthalmic
and American approve Coronado's issuing of up to 1,489,444 additional shares
of common stock to raise sufficient capital to satisfy all current outstanding
payables as of the date of closing of this transaction.
4.0 DIRECTORS
Upon the closing of this transaction, the current Board of Directors will
fill the two vacancies remaining on the five-member Board of Directors with
appointees designated by the members of Ophthalmic and American.
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5.0 RESTRICTED STOCK
Ophthalmic and American understand that the shares of Coronado that they
will receive in this transaction will not be registered with any state
securities regulatory commission or the United States Securities and Exchange
Commission. Instead, Coronado "ill be relying on exemptions from
registration. The exemption from registration to be utilized by Coronado
provides, among other things, that the shares issued pursuant to the
registration may not be resold by the investor, but, must be held for
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investment purposes only. Therefore, the restricted shares to be acquired by
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Ophthalmic and American may not be resold on an open market, should one become
available. Ophthalmic and American may sell the stock in the future in the
event that Coronado registers the shares for sale. Also, Ophthalmic and
American may sell their restricted shares on the open market two years after
coming into ownership of the shares. The latter sales are limited to sales of
not more than a maximum of 1% of the outstanding shares of the Corporation
over any three-month period in an open-market transaction. Ophthalmic and
American state that they are aware of the restrictions on transfer imposed by
the United States Securities and Exchange Commission under Rule 144 of the
Securities Act of 1933.
6.0 WARRANTIES
6.1 WARRANTIES OF OPHTHALMIC
Ophthalmic hereby warrants and represents to Coronado that:
A. OWNERSHIP: there exists 3 members of the limited liability company
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and that said members own 100% of the equity in the limited liability company.
The managing member of the limited liability company is,
and said managing member has full authority to transfer the assets set forth
in paragraph 1. I of this Agreement, free and clear of any and all liens,
judgments or restrictions.
B. FINANCIAL STATEMENTS: Any and all financial statements of
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Ophthalmic presented to Coronado are true and correct and have been prepared
in accordance with generally accepted accounting principles consistently
followed throughout the periods indicated, and fairly and accurately represent
the financial condition of Ophthalmic during those periods. Further, to the
best of Ophthalmic's knowledge, the financial statements are auditable.
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C.TITLE: All intellectual property to be transferred to Coronado is owned
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by Ophthalmic and there are no other co-owners or joint inventors on any
patents to be assigned or intellectual property to be transferred and that
said properties are free of all liens, mortgages, encumbrances, security
interests and pledges. Further, that the transfer of said intellectual
property to Coronado will not violate any contractual obligations involving
third parties, who are not a party to this Agreement.
D.LITIGATION: Ophthalmic is not involved in any actions, proceedings or
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investigations, including claims of patent infringement, which might
materially or adversely affect the business or assets of Ophthalmic or which
would prevent or hamper the transactions contemplated by this Agreement; and
Ophthalmic knows of no threatened or pending lawsuits or possible claims for
injury arising from workers' compensation, product liability, other tort
claims, contract claims, or any other claims regardless of type.
E. COMPLIANCE:To the best of its knowledge, Ophthalmic has complied with
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all federal, state and local laws and regulations relating to its business so
that there exists no known violation of any laws or regulations as pertaining
thereto.
F.FULL DISCLOSURE: Ophthalmic has made a full disclosure of any and all
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material facts that Coronado must know in order for Coronado to adequately
evaluate the current legal and financial status of Ophthalmic.
6.2 WARRANTIES OF AMERICAN
American hereby warrants and represents to Coronado that:
A. TITLE: All intellectual property to be transferred to Coronado is
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owned by American and there are no other co-owners or joint inventors on any
intellectual property and financial information to be transferred and that
said properties are free of all liens, mortgages, encumbrances, security
interests and pledges. Further, that the transfer of said intellectual
property and financial information to Coronado will not violate any
contractual obligations involving third parties, who are not a party to this
Agreement.
B. LITIGATION:American is not involved in any actions, proceedings or
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investigations which might materially or adversely affect the business or
assets of American or which would
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prevent or hamper the transactions contemplated by this Agreement; and
American knows of no threatened or pending lawsuits or possible claims for
injury arising from workers' compensation, product liability, other tort
claims, contract claims, or any other claims regardless of type.
C. FULL DISCLOSURE: American has made a full disclosure of any and
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all material facts that Coronado must know in order for Coronado to adequately
evaluate the current legal and financial status of American.
6.3 WARRANTIES OF CORONADO
A. FINANCIAL STATEMENTS:Any and all financial statements of Coronado
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presented to Ophthalmic and American are true and correct and have been
prepared in accordance with generally accepted accounting principles
consistently followed throughout the periods indicated, and fairly and
accurately represent the financial condition of Coronado during those periods.
B. LIABILITIES:That upon the closing of this transaction, Coronado
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will have no current or long term outstanding liabilities to any known
creditor.
C. LITIGATION:Coronado is not involved in any actions, proceedings or
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investigations, including, but not limited to, claims of patent infringement,
which might materially or adversely affect the business or assets of Coronado
or which would prevent or hamper the transactions contemplated by this
Agreement, and Coronado knows of no threatened or pending lawsuits or possible
claims for injury arising from workers' compensation, product liability, other
tort claims, contract claims, claims of shareholders or shareholder lawsuits,
or any other claims regardless of type.
D. COMPLIANCE:To the best of its knowledge, Coronado has complied
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with all federal, state and local laws and regulations relating to its
business so that there exists no known violation of any laws or regulations as
pertaining thereto.
E. CORPORATE STATUS:Coronado is a corporation, duly organized and validly
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existing and in good standing under the laws of the State of New York.
Coronado's Directors have
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all requisite power and authority to consummate the transaction contemplated
by this Agreement.
The stock to be issued in exchange for the assets of Ophthalmic and
American, when issued, will be validly existing, fully paid and non-assessable
common stock of Coronado Industries, Inc., a New York corporation; and, upon
the delivery to Ophthalmic and American, Ophthalmic and American shall possess
all rights, title and interest to the aforementioned common stock of Coronado,
including all voting rights pertinent thereto.
That the shareholders of Coronado in a special meeting of shareholders
held August 30, 1996 authorized the change of venue of Coronado from the State
of New York to the State of Nevada and that pursuant to said shareholder vote,
the corporation known as Coronado Industries, Inc., a Nevada corporation, has
been duty formed; and the officers of Coronado Industries, Inc., a New York
corporation, and Coronado Industries, Inc., a Nevada corporation, have entered
into and filed with the proper state authorities a Plan of Merger which will
accomplish the change of venue of the corporation from the State of New York
to the State of Nevada. Although the filing of said documents have been
accomplished, the State of New York requires as a condition precedent to the
granting of the merger, an approval of the Tax Commissioner for the State of
New York, which approval takes a minimum of eight (8) weeks to obtain.
F. REPORTING COMPANY: Coronado acknowledges that it is a reporting
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company under the Securities Act of 1933 and that it is current in all of its
required filings with the Securities and Exchange Commission as of the second
quarter of 1996. That the corporation WILL undertake to file a Form 10-QSB
with the Securities and Exchange Commission before the due date of its filing
for the third quarter of 1996.
F. FULL DISCLOSURE: Ophthalmic has made a full disclosure of any and
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all material facts that Coronado must know in order for Coronado to adequately
evaluate the current legal and financial status of Ophthalmic.
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6.4 SURVIVAL OF WARRANTIES
All representations and warranties contained herein shall survive the closing
of this Agreement.
7.0 DUE DILIGENCE
Each party to this agreement has the right to continue to review the various
documents held by the other parties, pertaining to this agreement, which may
be in each parties' possession. Each party agrees to make full and complete
access of said documentation to the parties and their agents and attorneys.
Each party has the right to request the attorney for each corporation to
provide at closing an opinion letter with regard to the current status of the
corporation, as well as the status of any legal proceedings pending or
threatened against the corporation effective as of the date of closing.
During the pendency of this agreement, each party agrees to advise all
other parties to this agreement of any and all facts that come to his or its
attention that may have an adverse effect upon the party's decision to
complete this agreement.
8.0 CLOSING
This Agreement shall close on a date not later than November 15, 1996 or
such earlier date as may be authorized by the Board of Directors of Coronado
and the members of Ophthalmic and American. The closing shall take place at
The exact date of closing shall be established by agreement of the parties
hereto. In the event that this Agreement falls to close by November 15, 1996
this Agreement shall be null and void and each party to this Agreement shall
release the other from any further obligations hereunder.
8.1 EXPENSES OF Closing
Coronado shall be responsible for the payment of legal, accounting and related
expenses incurred with the closing of this transaction. It is agreed by the
parties that the expenses of closing, not to exceed $5,000, shall be withdrawn
from the initial capitalization paid to Coronado by virtue of paragraph 2.2.
9.0 RELIANCE BY OPHTHALMIC AND AMERICAN
Ophthalmic and American state that they are entering into this Agreement
based upon the warranties and representations made to them and contained in
paragraph 6.3 of this Agreement. In
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the event that during the twelve month period, commencing upon the date of
closing, Ophthalmic or American discover that any warranties and
representations contain false or misleading statements of a material nature or
that any statements contained in the warranties and representations are
incomplete and that the omission of necessary language created a false
impression as to any material fact, including, but not limited to, any
undisclosed liabilities that Coronado had reason to know of at the time of
closing, Ophthalmic and American shall have the following remedy. Upon the
discovery by Ophthalmic or American of any representation or warranty contains
false or misleading statements as to any material fact or fails to state a
material fact which, if known, would materially effect their initial
investment decisions, Ophthalmic and American shall immediately verify the
accuracy of the new information and, shall have the ability to rescind this
transaction. In the event that Ophthalmic or American elects to rescind this
transaction they shall be bound by the terms provided in paragraph 1.0 of this
Agreement.
10.0 COMMISSIONS
ALL parties to this Agreement acknowledge that various individuals have
been instrumental in the negotiations culminating in this Agreement.
Therefore, in consideration of the efforts of the various individuals,
Coronado agrees to issue 855,000 common shares, upon the successful closing of
this transaction to the individuals set forth in Exhibit "B". All shares
issued shall be restricted shares and issued pursuant to a private placement.
The parties hereto state that no other individuals have been involved either
as brokers, agents or representatives in the completion of this Agreement and
that there are no other commissions due any other individuals aside from the
individuals named in Exhibit "B".
11.0 ENTIRE AGREEMENT
It is agreed by the parties that the terms set forth in this Agreement
constitute the entire agreement between the parties with regard to the Plan of
Reorganization and that there are no other terms or understandings, either
oral or written, not contained in this agreement. It is expressly understood
that this agreement supersedes all prior written or oral agreements of the
parties that may concern the subject matter of this agreement and that any
such prior agreements are now void and
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unenforceable. Any further modification of this Agreement will be valid only
as agreed to by all parties, in writing.
12.0 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada.
13.0 NOTICES
All notices, requests, demands and other communications under this
Agreement shall be in writing and shah be deemed to have been duly given on
the date of service if served personally on the parry to whom notice is to be
given, or on the fifth day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid
and properly addressed as follows:
Coronado: Coronado Industries, Inc.
c/o Xxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000
Ophthalmic: Ophthalmic International, L.L.C.
00000 Xxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
American: American Glaucoma
00000 Xxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
14.0 MULTIPLE COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
WITNESS: CORONADO INDUSTRIES, INC.
BY: /s/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX
OPHLAMIC INTERNATIONAL, L.L.C.
BY: /s/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX
AMERICAN GLAUCOMA
BY: /s/ XXXX XXXXX
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XXXX XXXXX
