STOCK PURCHASE AGREEMENT
Exhibit
2.1
STOCK
PURCHASE AGREEMENT, dated as of July 10, 2007 (the “Agreement”), among Big Eye
Capital Inc., a corporation organized under the laws of Arizona (the
“Purchaser”); Implant Technologies, Inc., a corporation organized under the laws
of Minnesota (the “Company”), Xxxxxxx Xxxxxxxx (“Xxxxxxxx”) and Xxxxxxx Xxxxxx
(“Xxxxxx” and collectively with Xxxxxxxx, the “Seller”).
W
I T
N E S S E T H:
WHEREAS,
Xxxxxxxx owns an aggregate of 40,000,000 shares of common stock, par value
$0.01
per share of the Company (the “Xxxxxxxx Shares”) and Xxxxxx owns an aggregate of
40,000,000 shares of common stock, par value $0.01 per share of the Company
(the
“Xxxxxx Shares” and collectively with the Xxxxxxxx Shares, the “Shares”), which
Shares constitute 80.48% issued and outstanding shares of capital stock of
the
Company; and
WHEREAS,
the Seller desires to sell to the Purchaser, and the Purchaser desires to
purchase from the Seller, the Shares for the purchase price and upon the
terms
and conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter contained, the parties hereby agree as
follows:
ARTICLE
I
SALE
AND
PURCHASE OF SHARES
1.1 Sale
and Purchase of Shares.
Upon
the
terms and subject to the conditions contained herein, on the Closing Date
the
Seller shall sell, assign, transfer, convey and deliver to the Purchaser,
and
the Purchaser shall purchase from the Seller, all of the Shares.
ARTICLE
II
PURCHASE
PRICE AND PAYMENT
2.1 Amount
of Purchase Price.
The
purchase price for the Shares shall be an amount equal to $582,500.00 (five
hundred and eighty-two thousand five hundred US dollars) (the “Purchase
Price”).
2.2 Payment
of Purchase Price.
On
the
Closing Date, the Purchaser shall pay the Purchase Price to the Seller, which
shall be paid by the delivery to Seller of a certified or bank cashier's
check
in New York Clearing House Funds, payable to the order of the Seller or,
at the
Seller’s option, by wire transfer of immediately available funds into accounts
designated by the Seller.
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ARTICLE
III
CLOSING
AND TERMINATION
3.1 Closing
Date.
Subject
to the satisfaction of the conditions set forth in Sections 7.1 and 7.2 hereof
(or the waiver thereof by the party entitled to waive that condition), the
closing of the sale and purchase of the Shares provided for in Section 1.1
hereof (the "Closing") shall take place at the offices of Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP located at 00 Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (or at such other place as the parties may designate
in
writing) on such date as the Seller and the Purchaser may designate. The
date on
which the Closing shall be held is referred to in this Agreement as the "Closing
Date".
3.2 Termination
of Agreement.
This
Agreement may be terminated prior to the Closing as follows:
(a) At
the election of the Seller or the Purchaser after July 9, 2007, if the Closing
shall not have occurred by the close of business on such date, provided that
the
terminating party is not in default of any of its obligations
hereunder;
(b) by
mutual written consent of the Seller and the Purchaser; or
(c) by
the Seller or the Purchaser if there shall be in effect a final nonappealable
order of a governmental body of competent jurisdiction restraining, enjoining
or
otherwise prohibiting the consummation of the transactions contemplated hereby;
it being agreed that the parties hereto shall promptly appeal any adverse
determination which is not nonappealable (and pursue such appeal with reasonable
diligence).
3.3 Procedure
Upon Termination.
In
the
event of termination and abandonment by the Purchaser or the Seller, or both,
pursuant to Section 3.2 hereof, written notice thereof shall forthwith be
given
to the other party or parties, and this Agreement shall terminate, and the
purchase of the Shares hereunder shall be abandoned, without further action
by
the Purchaser or the Seller. If this Agreement is terminated as provided
herein,
each party shall redeliver all documents, work papers and other material
of any
other party relating to the transactions contemplated hereby, whether so
obtained before or after the execution hereof, to the party furnishing the
same.
3.4 Effect
of Termination.
In
the
event that this Agreement is validly terminated as provided herein, then
each of
the parties shall be relieved of their duties and obligations arising under
this
Agreement after the date of such termination and such termination shall be
without liability to the Purchaser, the Company, the Seller or the Company;
provided, however, that the obligations of the parties set forth in Section
10.4
hereof shall survive any such termination and shall be enforceable hereunder;
provided, further, however, that nothing in this Section 3.4 shall relieve
the
Purchaser or the Seller of any liability for a breach of this
Agreement.
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ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE SELLER AND THE COMPANY
The
Seller and the Company hereby jointly and severally represent and warrant
to the
Purchaser that:
4.1. Organization
and Good Standing.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation. The Company is not
required to be qualified to transact business in any other jurisdiction where
the failure to do so would reasonably be expected to result in (i) a material
adverse effect on the legality, validity or enforceability of this Agreement,
(ii) a material adverse effect on the results of operations, assets, business
or
financial condition of the Company, taken as a whole, or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a
timely basis its obligations under this Agreement (any of (i), (ii) or (iii),
a
“Material
Adverse Effect”).
4.2. Authority.
(a) The
Company has full power and authority (corporate and otherwise) to carry on
its
business and has all permits and licenses that are necessary to the conduct
of
its business or to the ownership, lease or operation of its properties and
assets.
(b) The
execution of this Agreement and the delivery hereof to the Purchaser and
the
sale contemplated herein have been, or will be prior to Closing, duly authorized
by the Board of Directors of the Company, having full power and authority
to
authorize such actions.
(c) Subject
to any consents required under Section 4.7 below, the Seller and the Company
have the full legal right, power and authority to execute, deliver and carry out
the terms and provisions of this Agreement; and this Agreement has been duly
and
validly executed and delivered on behalf of the Seller and the Company and
constitutes a valid and binding obligation of the Seller and the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights and subject to general principles
of
equity that restrict the availability of equitable remedies.
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(d) Except
as set forth in Schedule 4.2, neither the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated, nor
compliance with the terms of this Agreement will violate, conflict with,
result
in a breach of, or constitute a default under any statute, regulation,
indenture, mortgage, loan agreement, or other agreement or instrument to
which
the Seller or the Company is a party or by which it or any of them is bound,
any
charter, regulation, or bylaw provision of the Company, or any decree, order,
or
rule of any court or governmental authority or arbitrator that is binding
on the
Seller or the Company in any way.
4.3. Shares.
(a) The
authorized capital stock of the Company consist of 800,000,000 shares of
common
stock, par value $0.01 per share, of which [99,408,464] shares are issued
and
outstanding. All of the Company’s Shares are duly authorized, validly issued,
fully paid and non-assessable.
(b) Xxxxxxxx
is the lawful record and beneficial owner of 40,000,000 Shares, free and
clear
of any liens, pledges, encumbrances, charges, claims or restrictions of any
kind, except as set forth in Schedule 4.3, and have, or will have on the
Closing
Date, the absolute, unilateral right, power, authority and capacity to enter
into and perform this Agreement without any other or further authorization,
action or proceeding, except as specified herein.
(c) Xxxxxx
is the lawful record and beneficial owner of 40,000,000 Shares, free and
clear
of any liens, pledges, encumbrances, charges, claims or restrictions of any
kind, except as set forth in Schedule 4.3, and have, or will have on the
Closing
Date, the absolute, unilateral right, power, authority and capacity to enter
into and perform this Agreement without any other or further authorization,
action or proceeding, except as specified herein.
(d) Except
for the 30,000 shares of common stock to be issued to Xxxxxx Xxxx for consulting
services performed in 1989, there are no authorized or outstanding
subscriptions, options, warrants, calls, contracts, demands, commitments,
convertible securities or other agreements or arrangements of any character
or
nature whatever under which the Company is or may become obligated to issue,
assign or transfer any shares of capital stock of the Company. Upon the delivery
to Purchaser on the Closing Date of the certificates representing the Shares,
Purchaser will have good, legal, valid, marketable and indefeasible title
to
80.48% the then issued and outstanding shares of capital stock of the Company,
free and clear of any liens, pledges, encumbrances, charges, agreements,
options, claims or other arrangements or restrictions of any kind.
4.4. Consents.
No
consents or approvals of any public body or authority and no consents or
waivers
from other parties to leases, licenses, franchises, permits, indentures,
agreements or other instruments are (i) required for the lawful
consummation of the transactions contemplated hereby, or (ii) necessary in
order that the Business can be conducted by the Purchaser in the same manner
after the Closing as heretofore conducted by the Company nor will the
consummation of the transactions contemplated hereby result in creating,
accelerating or increasing any liability of the Company.
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4.5. SEC
Reports; Financial Statements.
The
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company was required
by
law or regulation to file such material) (the foregoing materials, including
the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the “SEC
Reports”)
on a
timely basis or has received a valid extension of such time of filing and
has
filed any such SEC Reports prior to the expiration of any such extension.
As of
their respective dates, the SEC Reports complied in all material respects
with
the requirements of the Securities Act and the Exchange Act, as applicable,
and
none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The audited financial
statements of the Company and its Subsidiaries for the past two fiscal years
and
unaudited financial statement for the most recent fiscal quarter, to the
extent
not included in the SEC Reports, are attached hereto as Schedule
4.8.
Such
financial statements comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have
been
prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved
(“GAAP”),
except as may be otherwise specified in such financial statements or the
notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated Subsidiaries as of
and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments. As of the date of this Agreement,
the
Company does not have any outstanding balance with Xxxxxxxxxx & Associates,
Inc. its independent auditor.
4.6. Books
and Records.
The
books and records of the Company are complete and correct in all material
respects and have been maintained in accordance with sound business practices,
including the maintenance of an adequate system of internal controls. True
and
complete copies of all available minute books and all stock record books
of the
Company will be delivered to Purchaser at Closing.
4.7. Absence
of Undisclosed Liabilities.
Except
as and to the extent reflected or reserved against the financial statements
included in the most recent SEC Report, there are no liabilities or obligations
of the Company of any kind whatsoever, whether accrued, fixed, absolute,
contingent, determined or determinable, and including without limitation
(i) liabilities to former, retired or active employees of the Company under
any pension, health and welfare benefit plan, vacation plan or other plan
of the
Company, (ii) tax liabilities incurred in respect of or measured by income
for any period prior to the close of business on the, or arising out of
transactions entered into, or any state of facts existing, on or prior to
said
date, and (iii) contingent liabilities in the nature of an endorsement,
guarantee, indemnity or warranty, and there is no condition, situation or
circumstance existing or which has existed that would reasonably be expected
to
result in any material liability of the Company, other than liabilities and
contingent liabilities incurred in the ordinary course of business since
the
most recent SEC Report consistent with the Company’s recent customary business
practice, none of which would reasonably be expected to have a Material Adverse
Effect. As of the date of this Agreement, the Subscription Receivable and
Accounts Payable previously reported on the Company’s Balance Sheet and included
in the Form 10-QSB for the quarterly period ended March 31, 2007, shall have
a
balance of zero.
5
4.8 Taxes.
The
Company has timely filed all federal, state, local and foreign returns,
estimates, information statements and reports (“Returns”) relating to Taxes
required to be filed by the Company with any Tax authority. All such Returns
are
true, correct and complete in all material respects. The Company has paid
all
Taxes shown to be due on such Returns. The Company is currently the not the
beneficiary of any extensions of time within which to file any Returns. No
claim
has ever been made by an authority in a jurisdiction where the Company does
not
file tax returns that the Company is or may be subject to taxation by that
jurisdiction. There are no claims or encumbrances on any of the Company’s assets
that arose in connection with any failure (or alleged failure) to pay any
tax.
4.9. Patents,
Software, Trademarks, Etc.
The
Company has no Intellectual Property. The term “Intellectual Property” includes
all patents and patent applications, trademarks, service marks, and trademark,
service marks, and trademarks or service marks registrations and applications,
trade names, logos, designs, domain names, web sites, slogans and general
intangibles of like nature, together with all goodwill relating to the
foregoing, copyrights, copyright registrations, renewals and applications,
software, databases, technology, trade secrets and other confidential
information know-how, proprietary processes, formulae, algorithms, models
and
methodologies, drawings, specifications, plans, proposals, financing and
marketing plans, advertiser, customer and supplier lists and all other
information relating to advertisers, customers and suppliers (whether or
not
reduced to writing), licenses, agreements and all other proprietary rights,
which relate to the Company’s business.
4.10 Employees. The
Company currently has no employees, consultants or independent contractors
other
than Xxxxxxx Xxxxxx and Xxxx Xxxxxxx. All consulting, employment and other
agreements and arrangements between the Company and its employees will, at
the
Closing, be validly terminated, and all such agreements and arrangements
previously did comply, and have at all times been in full compliance, with
all
employment or other applicable rules and regulations. The termination of
any
existing employment with Xxxxxxx Xxxxxx and Xxxx Xxxxxxx ,or termination
of the
other agreements with prior employees, consultants or independent contractors
of
the Company will not and did not subject the Company to any workers’
compensation, unemployment compensation and other government-mandated program
or
obligations or liability. No amounts are due or owed to any previous or current
Company employee, consultant or independent contractor. There are no oral
employment agreements, consulting agreements or other compensation agreements
currently in effect between the Company and any other person. Each of the
foregoing employees of the Company will resign their employment effective
as of
the Closing and release the Company from all known and unknown claims that
such
employee may have against the Company.
4.11. Contracts.
Except
as would not have a material adverse effect on the Company or its obligations,
(i) all contracts, agreements and commitments of the Company are valid,
binding and in full force and effect, and (ii) neither the Company nor, to
the Seller’s knowledge, any other party to any such contract, agreement, or
commitment has materially breached any provision thereof or is in default
thereunder. The sale of the Shares by the Seller in accordance with this
Agreement will not result in the termination of any contract, agreement or
commitment of the Company, and immediately after the Closing, each such
contract, agreement or commitment will continue in full force and effect
without
the imposition or acceleration of any burdensome condition or other obligation
on the Company resulting from the sale of the Shares by the Seller. True
and
complete copies of all contracts of the Company will be delivered to Purchaser
at Closing.
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4.12. Compliance
With the Law.
The
Company is not in material violation of any applicable federal, state, local
or
foreign law, regulation or order or any other, decree or requirement of any
governmental, regulatory or administrative agency or authority or court or
other
tribunal (including, but not limited to, any law, regulation order or
requirement relating to securities, properties, business, products,
manufacturing processes, advertising, sales or employment practices, terms
and
conditions of employment, occupational safety, health and welfare, conditions
of
occupied premises, product safety and liability, civil rights, or environmental
protection, including, but not limited to, those related to waste management,
air pollution control, waste water treatment or noise abatement). The Company
has not been and is not now charged with, or to the knowledge of the Seller
or
the Company under investigation with respect to, any violation of any applicable
law, regulation, order or requirement relating to any of the foregoing, nor,
to
the knowledge of Seller or the Company, are there any circumstances that
would
reasonably be expected to give rise to any such violation. The Company has
filed
all reports required to be filed with any governmental, regulatory or
administrative agency or authority.
4.13. Litigation;
Pending Labor Disputes.
Except
as would not have a material adverse effect on the Company, there are no
legal,
administrative, arbitration or other proceedings or governmental investigations
pending or, to the knowledge of Seller or the Company, threatened, against
the
Seller or the Company, relating to the Business or the Company or its properties
(including leased property), or the transactions contemplated by this Agreement,
nor is there any basis known to the Seller or the Company for any such action.
There are no judgments, decrees or orders of any court, or any governmental
department, commission, board, agency or instrumentality binding upon Seller
or
the Company relating to the Business or the Company the effect of which is
to
prohibit any business practice or the acquisition of any property or the
conduct
of any business by the Company or which limit or control or otherwise adversely
affect its method or manner of doing business.
4.14. Absence
of Certain Changes or Events.
The
Company has not, since the date of the financial statements included in the
most
recent SEC Report:
(i) Incurred
any material obligation or liability (absolute, accrued, contingent or
otherwise) except for obligations or liabilities incurred in the ordinary
course, and any such obligation or liability incurred in the ordinary course
would not have a Material Adverse Effect, except for claims, if any, that
are
adequately covered by insurance;
7
(ii) Discharged
or satisfied any lien or encumbrance, or paid or satisfied any obligations
or
liability (absolute, accrued, contingent or otherwise) other than
(a) liabilities shown or reflected on the balance sheet of the most recent
SEC Report, and (b) liabilities incurred since the Balance Sheet Date in
the ordinary course of business that would not have a Material Adverse
Effect;
(iii) Increased
or established any reserve or accrual for taxes or other liability on its
books
or otherwise provided therefore, except (a) as disclosed on the balance
sheet of the most recent SEC Report, or (b) as may have been required under
generally accepted accounting principles due to income earned or expense
accrued
since the date of the balance sheet of the most recent SEC Report and as
disclosed to the Purchaser in writing;
(iv) Mortgaged,
pledged or subjected to any lien, charge or other encumbrance any of its
assets,
tangible or intangible;
(v) Sold
or transferred any of its assets or cancelled any debts or claims or waived
any
rights, except in the ordinary course of business and which would not have
a
Material Adverse Effect;
(vi) Disposed
of or permitted to lapse any patents or trademarks or any patent or trademark
applications material to the operation of its business;
(vii) Incurred
any significant labor trouble or granted any general or uniform increase
in
salary or wages payable or to become payable by it to any director, officer,
employee or agent, or by means of any bonus or pension plan, contract or
other
commitment increased the compensation of any director, officer, employee
or
agent, other than regularly scheduled increases that are consistent with
past
practices;
(viii) Authorized
any capital expenditure for real estate or leasehold improvements, machinery,
equipment or molds in excess of $10,000.00 in the aggregate;
(ix) Except
for this Agreement, entered into any material transaction;
(x) Issued
any stocks, bonds, or other corporate securities, or made any declaration
or
payment of any dividend or any distribution in respect of its capital stock;
or
(xi) Experienced
damage, destruction or loss (whether or not covered by insurance) that would
individually or in the aggregate have a Material Adverse Effect or experienced
any other material adverse change or changes individually or in the aggregate
that would have a Material Adverse Effect.
8
4.15. Licenses,
Permits, Consents and Approvals.
The
Company has, and at the Closing Date will have, all licenses, permits or
other
authorizations of governmental, regulatory or administrative agencies or
authorities (collectively, “Licenses”) required to conduct the Business and the
absence of any of which would have a Material Adverse Effect. At the Closing,
the Company will have all such Licenses which are material to the conduct
of the
Business and the absence of any of which would have a Material Adverse Effect,
and will have renewed all Licenses which would have expired in the interim.
No
registration, filing, application, notice, transfer, consent, approval, order,
qualification, waiver or other action of any kind (collectively, a “Filing”)
will be required as a result of the sale of the Shares by Seller in accordance
with this Agreement (a) to avoid the loss of any License or the violation,
breach or termination of, or any default under, or the creation of any lien
on
any asset of the Company pursuant to the terms of, any law, regulation, order
or
other requirement or any contract binding upon the Company or to which any
such
asset may be subject, or (b) to enable Purchaser (directly or through any
designee) to continue the operation of the Company and the Business
substantially as conducted prior to the Closing Date. All such Filings will
be
duly filed, given, obtained or taken on or prior to the Closing Date and
will be
in full force and effect on the Closing Date.
4.16 Broker.
Except
as specified in Schedule 4.30, neither the Company nor the Seller has retained
any broker in connection with any transaction contemplated by this Agreement.
Purchaser and the Company shall not be obligated to pay any fee or commission
associated with the retention or engagement by the Company or Seller of any
broker in connection with any transaction contemplated by this
Agreement.
4.17. Disclosure.
All
statements contained in any contract, schedule, closing certificate, opinion,
or
other closing document delivered by or on behalf of the Seller or the Company
pursuant hereto or in connection with the transactions contemplated hereby
shall
be deemed representations and warranties by the Seller and the Company herein.
No statement, representation or warranty by the Seller or the Company in
this
Agreement or in any contract, schedule, closing certificate, opinion, or
other
closing document furnished or to be furnished to the Purchaser pursuant hereto
or in connection with the transactions contemplated hereby contains or will
contain any untrue statement of a material fact or omits or will omit to
state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading or necessary in order to provide a prospective
purchaser of the business the Company with full and fair disclosure concerning
the Company, the Business and the Company’s affairs.
9
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
5.1 Organization
and Good Standing.
The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Arizona.
5.2 Authority.
(a) The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been, or will prior to Closing be,
duly
and validly approved and acknowledged by all necessary corporate action on
the
part of the Purchaser.
(b) The
execution of this Agreement and the delivery hereof to the Seller and the
purchase contemplated herein have been, or will be prior to Closing, duly
authorized by the Purchaser’s Board of Directors having full power and authority
to authorize such actions.
5.3 Conflicts;
Consents of Third Parties.
(a) The
execution and delivery of this Agreement and the consummation of the
transactions herein contemplated, and the compliance with the provisions
and
terms of this Agreement, are not prohibited by the Articles of Incorporation
or
Bylaws of the Purchaser and will not violate, conflict with or result in
a
breach of any of the terms or provisions of, or constitute a default under,
any
court order, indenture, mortgage, loan agreement, or other agreement or
instrument to which the Purchaser is a party or by which it is
bound.
(b) No
consent, waiver, approval, order, permit or authorization of, or declaration
or
filing with, or notification to, any person or governmental body is required
on
the part of the Purchaser in connection with the execution and delivery of
this
Agreement or the Purchaser Documents or the compliance by Purchaser with
any of
the provisions hereof or thereof.
5.4 Litigation.
There
are
no Legal Proceedings pending or, to the best knowledge of the Purchaser,
threatened that are reasonably likely to prohibit or restrain the ability
of the
Purchaser to enter into this Agreement or consummate the transactions
contemplated hereby.
5.5 Broker.
The
Purchaser has not retained any broker in connection with any transaction
contemplated by this Agreement. Seller shall not be obligated to pay any
fee or
commission associated with the retention or engagement by the Purchaser of
any
broker in connection with any transaction contemplated by this
Agreement.
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ARTICLE
VI
COVENANTS
6.1 Access
to Information.
The
Seller and the Company agree that, prior to the Closing Date, the Purchaser
shall be entitled, through its officers, employees and representatives
(including, without limitation, its legal advisors and accountants), to make
such investigation of the properties, businesses and operations of the Company
and their Subsidiaries and such examination of the books, records and financial
condition of the Company and their Subsidiaries as it reasonably requests
and to
make extracts and copies of such books and records. Any such investigation
and
examination shall be conducted during regular business hours and under
reasonable circumstances, and the Seller shall cooperate, and shall cause
the
Company and their Subsidiaries to cooperate, fully therein. No investigation
by
the Purchaser prior to or after the date of this Agreement shall diminish
or
obviate any of the representations, warranties, covenants or agreements of
the
Seller contained in this Agreement or the Seller Documents. In order that
the
Purchaser may have full opportunity to make such physical, business, accounting
and legal review, examination or investigation as it may reasonably request
of
the affairs of the Company and its Subsidiaries, the Seller shall cause the
officers, employees, consultants, agents, accountants, attorneys and other
representatives of the Company and their Subsidiaries to cooperate fully
with
such representatives in connection with such review and
examination.
6.2 Consents.
The
Seller and the Company shall use their best efforts, and the Purchaser shall
cooperate with the Seller and the Company to obtain at the earliest practicable
date all consents and approvals required to consummate the transactions
contemplated by this Agreement, including, without limitation, the consents
and
approvals referred to in Section 4.7 hereof; provided, however, that neither
the
Seller, the Company nor the Purchaser shall be obligated to pay any
consideration therefore to any third party from whom consent or approval
is
requested.
6.3 Other
Actions.
Each
of
the Seller, the Company and the Purchaser shall use its best efforts to (i)
take
all actions necessary or appropriate to consummate the transactions contemplated
by this Agreement and (ii) cause the fulfillment at the earliest practicable
date of all of the conditions to their respective obligations to consummate
the
transactions contemplated by this Agreement.
6.4 No
Solicitation.
The
Seller will not, and will not cause or permit the Company or any of the the
Company’s directors, officers, employees, representatives or agents
(collectively, the "Representatives") to, directly or indirectly, (i) discuss,
negotiate, undertake, authorize, recommend, propose or enter into, either
as the
proposed surviving, merged, acquiring or acquired corporation, any transaction
involving a merger, consolidation, business combination, purchase or disposition
of any amount of the assets or capital stock or other equity interest in
the
Company other than the transactions contemplated by this Agreement (an
"Acquisition Transaction"), (ii) facilitate, encourage, solicit or initiate
discussions, negotiations or submissions of proposals or offers in respect
of an
Acquisition Transaction, (iii) furnish or cause to be furnished, to any Person,
any information concerning the business, operations, properties or assets
of the
Company in connection with an Acquisition Transaction, or (iv) otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage,
any effort or attempt by any other Person to do or seek any of the foregoing.
The Seller will inform the Purchaser in writing immediately following the
receipt by Seller, the Company or any Representative of any proposal or inquiry
in respect of any Acquisition Transaction.
11
6.5 Publicity.
None
of
the Seller, the Company nor the Purchaser shall issue any press release or
public announcement concerning this Agreement or the transactions contemplated
hereby without obtaining the prior written approval of the other party hereto,
which approval will not be unreasonably withheld or delayed, unless, in the
sole
judgment of the Purchaser, the Company or the Seller, disclosure is otherwise
required by applicable Law or by the applicable rules of any stock exchange
on
which the Purchaser lists securities, provided that, to the extent required
by
applicable law, the party intending to make such release shall use its best
efforts consistent with such applicable law to consult with the other party
with
respect to the text thereof.
6.6 Tax
Matters
(a) Tax
Periods Ending on or Before the Closing Date.
The
Seller shall prepare or cause to be prepared and file or cause to be filed
all
Tax Returns for the Company for all periods through and including the Closing
Date which are filed after the Closing Date as soon as practicable and prior
to
the date due (including any proper extensions thereof). The Seller shall
permit
the Company and the Purchaser to review and provide comments, if any, on
each
such Return described in the preceding sentence prior to filing. Unless the
Purchaser and the Company provides comments to the Seller, the Company shall
deliver to the Seller each such Return signed by the appropriate officer(s)
of
the Company for filing within ten (10) days following the Seller’s delivery to
the Company and the Purchaser of any such Return. The Seller shall deliver
to
the Company promptly after filing each such Return a copy of the filed Return
and evidence of its filing. The Seller shall pay the costs and expenses incurred
in the preparation and filing of the Tax Returns on or before the date such
costs and expenses are due.
If
the
Company provides comments to the Seller and at the end of such ten (10) day
period the Company and the Seller have failed to reach written agreement
with
respect to all of such disputed items, the parties shall submit the unresolved
items to arbitration for final determination. Promptly, but no later than
thirty
(30) days after its acceptance of its appointment as arbitrator, the arbitrator
shall render an opinion as to the disputed items. The determination of the
arbitrator shall be conclusive and binding upon the parties. the Company
and the
Seller (as a group) shall each pay one half of the fees, costs and expenses
of
the arbitrator. The prevailing party may be entitled to an award of pre-
and
post-award interest as well as reasonable attorneys’ fees incurred in connection
with the arbitration and any judicial proceedings related thereto as determined
by the arbitrator.
(b) Tax
Periods Beginning and Ending After the Closing Date.
The
Company or the Purchaser shall prepare or cause to be prepared and file or
cause
to be filed any Returns of the Company for Tax periods that begin and end
after
the Closing Date.
12
(c) Refunds
and Tax Benefits.
Any tax
refunds that are received after the Closing Date by the Seller, the Company
(other than tax refunds received in connection with such Seller’s individual tax
return) and any amounts credited against tax to which the Seller, the Company
becomes entitled, shall be for the account of the Company.
(d) Cooperation
on Tax Matters.
(i) The
Purchaser, the Company and the Seller shall cooperate fully, as and to the
extent reasonably requested by the other party, in connection with the filing
of
any Returns pursuant to this Section and any audit, litigation or other
proceeding with respect to Taxes. Such cooperation shall include the retention
and (upon the other party's request) the provision of records and information
which are reasonably relevant to any such audit, litigation or other proceeding
and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.
The
Company and the Seller agree (A) to retain all books and records with respect
to
Tax matters pertinent to the Company relating to any taxable period beginning
before the Closing Date until the expiration of the statute of limitations
(and,
to the extent notified by the Purchaser or the Seller, any extensions thereof)
of the respective tax periods, and to abide by all record retention agreements
entered into with any taxing authority, and (B) to give the other party
reasonable written notice prior to transferring, destroying or discarding
any
such books and records and, if the other party so requests, the Company or
the
Seller, as the case may be, shall allow the other party to take possession
of
such books and records.
(ii) The
Purchaser and the Seller further agree, upon request, to use their commercially
reasonable best efforts to obtain any certificate or other document from
any
governmental authority or any other Person as may be necessary to mitigate,
reduce or eliminate any Tax that could be imposed (including, but not limited
to, with respect to the transactions contemplated hereby).
(iii) The
Purchaser and the Seller further agree, upon request, to provide the other
party
with all information that either party may be required to report pursuant
to
Sec.6043 of the Code and all Treasury Department Regulations promulgated
thereunder.
6.7 Form
10-KSB for the fiscal year ended June 30, 2007
(a) The
Seller and the Company hereby agree that Xxxx Xxxxxxx will remain a director
of
the Company until the Company files a Schedule 14(f) with the Securities
and
Exchange Commission and such Schedule 14(f) is mailed to the shareholders
of
record of the Company. Xx. Xxxxxxx shall tender his resignation on the
10th
day
after such mailing.
(b) The
Seller and the Company hereby agree that Xxxx Xxxxxxx shall remain the Chief
Financial Officer of the Company until the Company files its Form 10-KSB
for the
fiscal year ended June 30, 2007. Xx. Xxxxxxx shall assist the Company in
preparing such Form 10-KSB and shall sign the Form 10-KSB and the related
certifications in his capacity as chief financial officer. Xx. Xxxxxxx shall
tender his resignation as chief financial officer on the date such Form 10-KSB
is filed with the Commission.
13
ARTICLE
VII
CONDITIONS
TO CLOSING
7.1 Conditions
Precedent to Obligations of Purchaser.
The
obligation of the Purchaser to consummate the transactions contemplated by
this
Agreement is subject to the fulfillment, on or prior to the Closing Date,
of
each of the following conditions (any or all of which may be waived by the
Purchaser in whole or in part to the extent permitted by applicable
law):
(a) all
representations and warranties of the Seller and the Company contained herein
shall be true and correct as of the date hereof;
(b) all
representations and warranties of the Seller and the Company contained herein
qualified as to materiality shall be true and correct, and the representations
and warranties of the Seller and the Company contained herein not qualified
as
to materiality shall be true and correct in all material respects, at and
as of
the Closing Date with the same effect as though those representations and
warranties had been made again at and as of that time;
(c) the
Seller and the Company shall have performed and complied in all material
respects with all obligations and covenants required by this Agreement to
be
performed or complied with by them on or prior to the Closing Date;
(d) the
Purchaser shall have been furnished with certificates (dated the Closing
Date
and in form and substance reasonably satisfactory to the Purchaser) executed
by
the Seller certifying as to the fulfillment of the conditions specified in
Sections 7.1(a), 7.1(b) and 7.1(c) hereof;
(e) Certificates
representing 100% of the Shares shall have been, or shall at the Closing
be,
validly delivered and transferred to the Purchaser, free and clear of any
and
all Liens;
(f) there
shall not have been or occurred any Material Adverse Change;
(g) the
Seller and the Company shall have obtained all consents and waivers referred
to
in Section 4.7 hereof, in a form reasonably satisfactory to the Purchaser,
with
respect to the transactions contemplated by this Agreement and the Seller
Documents;
(h) no
Legal Proceedings shall have been instituted or threatened or claim or demand
made against the Seller and the Company, or the Purchaser seeking to restrain
or
prohibit or to obtain substantial damages with respect to the consummation
of
the transactions contemplated hereby, and there shall not be in effect any
order
by a governmental body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated
hereby;
14
(i) the
Purchaser shall have received the written resignations of each director and
officer of the Company;
7.2 Conditions
Precedent to Obligations of the Seller and the Company.
The
obligations of the Seller and the Company to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, prior to or
on
the Closing Date, of each of the following conditions (any or all of which
may
be waived by the Seller and the Company in whole or in part to the extent
permitted by applicable law):
(a) all
representations and warranties of the Purchaser contained herein shall be
true
and correct as of the date hereof;
(b) all
representations and warranties of the Purchaser contained herein qualified
as to
materiality shall be true and correct, and all representations and warranties
of
the Purchaser contained herein not qualified as to materiality shall be true
and
correct in all material respects, at and as of the Closing Date with the
same
effect as though those representations and warranties had been made again
at and
as of that date;
(c) the
Purchaser shall have performed and complied in all material respects with
all
obligations and covenants required by this Agreement to be performed or complied
with by Purchaser on or prior to the Closing Date;
(d) the
Seller shall have been furnished with certificates (dated the Closing Date
and
in form and substance reasonably satisfactory to the Seller) executed by
the
Chief Executive Officer and Chief Financial Officer of the Purchaser certifying
as to the fulfillment of the conditions specified in Sections 7.2(a), 7.2(b)
and
7.2(c); and
(e) no
Legal Proceedings shall have been instituted or threatened or claim or demand
made against the Seller, the Company, or the Purchaser seeking to restrain
or
prohibit or to obtain substantial damages with respect to the consummation
of
the transactions contemplated hereby, and there shall not be in effect any
Order
by a Governmental Body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated hereby.
ARTICLE
VIII
DOCUMENTS
TO BE DELIVERED
8.1 Documents
to be Delivered by the Seller.
At
the
Closing, the Seller shall deliver, or cause to be delivered, to the Purchaser
the following:
(a) stock
certificates representing the Shares, duly endorsed in blank or accompanied
by
stock transfer powers and with all requisite stock transfer tax stamps attached;
15
(b) copies
of all consents and waivers referred to in Section 7.1(g) hereof;
(c) written
resignations of each of the officers and directors of the Company;
(d) certificate
of good standing with respect to the Company issued by the Secretary of State
of
the State of incorporation, and for each state in which the Company is qualified
to do business as a foreign corporation;
(g)
resolution of the board of directors of the Company appointing Xxxx Xxxxxx
as a
member of the Board of Directors and as the President and Secretary of the
Company; and
(h) all
financial records of the Company including the books and records of original
entry for accounting, and
(i) all
original signed copies of all filings made with the United States Securities
and
Exchange Commission filed by the Company over the last two years.
(j)
copies of all correspondence with the United States Securities and Exchange
Commission over the last two years;
(j) the
entirety of the book containing all of the minutes of the Board of Directors
and
Shareholders for the life of the Company but not less than the previous two
years, and
(k) copies
of all regulatory filings which were required to be filed in the State of
Minnesota for the establishment and maintenance of a corporation in that
state
for at least the last two years, and
(l) any
and all information about the business of the Company including but not limited
to copies of the original tax returns filed that substantiate the amount
of
previous losses, and
(m)
Engagement agreements with the Company’s auditors for at least the last two
years, and
(n) Management’s
representation letter/agreement presented to the auditors for the last two
year’s audits, and
(o) fully
executed signature cards placing the new officers on all of the Company’s bank
accounts and brokerage accounts and removing the current signers,
and
(p) Delivery
of all corporate checking, savings and other account information including
checks, debit cards (if any), check books, deposit slips, bank and brokerage
account statements and agreements, and
(q) All
passwords necessary to access any and all Company accounts, including but
not
limited, to Business Wire, corporate websites, XXXXX reporting arrangements,
SEC
XXXXX codes, online banking and brokerage accounts, company software and
hardware, where applicable, and
16
(r) such
other documents as the Purchaser shall reasonably request.
8.2 Documents
to be Delivered by the Purchaser.
At
the
Closing, the Purchaser shall deliver to the Seller the following:
(a) the
Purchase Price;
(b)
the
certificates referred to in Section 7.2(d) hereof;
(c)
such
other documents as the Seller shall reasonably request.
ARTICLE
IX
INDEMNIFICATION
9.1 Indemnification.
(a) Subject
to Section 9.2 hereof, the Seller hereby agrees to indemnify and hold the
Purchaser, the Company, and their respective directors, officers, employees,
Affiliates, agents, successors and assigns (collectively, the "Purchaser
Indemnified Parties") harmless from and against:
(i) any
an all liabilities of the Company of every kind, nature, and description,
absolute or contingent, existing as against the Company prior to and including
the Closing Date or thereafter coming into being or arising by reason of
any
state of facts existing, or any transaction entered into, on or prior to
the
Closing Date, except to the extent that the same have been fully provided
for in
the balance sheet or disclosed in the notes thereto or the Schedules hereto
or
were incurred in the ordinary course of business between the date of the
latest
SEC Report and the Closing Date;
(ii) subject
to Section 10.3, any and all losses, liabilities, obligations, damages, costs
and expenses based upon, attributable to or resulting from the failure of
any
representation or warranty of the Seller set forth in Section 4 hereof, or
any
representation or warranty contained in any certificate delivered by or on
behalf of the Seller pursuant to this Agreement, to be true and correct in
all
respects as of the date made;
(iii) any
and all losses, liabilities, obligations, damages, costs and expenses based
upon, attributable to or resulting from the breach of any covenant or other
agreement on the part of the Seller under this Agreement;
(iv) any
and all notices, actions, suits, proceedings, claims, demands, assessments,
judgments, costs, penalties and expenses, including attorneys' and other
professionals' fees and disbursements (collectively, "Expenses") incident
to any
and all losses, liabilities, obligations, damages, costs and expenses with
respect to which indemnification is provided hereunder (collectively,
"Losses").
17
(b) Subject
to Section 9.2, Purchaser hereby agrees to indemnify and hold the Seller
and his
Affiliates, agents, successors and assigns (collectively, the "Seller
Indemnified Parties") harmless from and against:
(i) any
and all Losses based upon, attributable to or resulting from the failure
of any
representation or warranty of the Purchaser set forth in Section 5 hereof,
or
any representation or warranty contained in any certificate delivered by
or on
behalf of the Purchaser pursuant to this Agreement, to be true and correct
as of
the date made;
(ii) any
and all Losses based upon, attributable to or resulting from the breach of
any
covenant or other agreement on the part of the Purchaser under this Agreement
or
arising from the ownership or operation of the Company from and after the
Closing Date; and
(iii) any
and all Expenses incident to the foregoing.
9.2 Limitations
on Indemnification for Breaches of Representations and Warranties.
(a)
An
indemnifying party shall not have any liability under Section 9.1(a)(i),
Section
9.1(a)(ii) or Section 9.1(b)(i) hereof unless the aggregate amount of Losses
and
Expenses to the indemnified parties finally determined to arise thereunder
based
upon, attributable to or resulting from the failure of any representation
or
warranty to be true and correct, other than the representations and warranties
set forth in Sections 4.3 and 4.11 hereof, exceeds $10,000 (the “Basket”) and,
in such event, the indemnifying party shall be required to pay the entire
amount
of such Losses and Expenses in excess of $10,000 (the “Deductible”).
9.3 Indemnification
Procedures.
(a) In
the event that any Legal Proceedings shall be instituted or that any claim
or
demand ("Claim") shall be asserted by any Person in respect of which payment
may
be sought under Section 9.1 hereof (regardless of the Basket or the Deductible
referred to above), the indemnified party shall reasonably and promptly cause
written notice of the assertion of any Claim of which it has knowledge which
is
covered by this indemnity to be forwarded to the indemnifying party. The
indemnifying party shall have the right, at its sole option and expense,
to be
represented by counsel of its choice, which must be reasonably satisfactory
to
the indemnified party, and to defend against, negotiate, settle or otherwise
deal with any Claim which relates to any Losses indemnified against hereunder.
If the indemnifying party elects to defend against, negotiate, settle or
otherwise deal with any Claim which relates to any Losses indemnified against
hereunder, it shall within five (5) days (or sooner, if the nature of the
Claim
so requires) notify the indemnified party of its intent to do so. If the
indemnifying party elects not to defend against, negotiate, settle or otherwise
deal with any Claim which relates to any Losses indemnified against hereunder,
fails to notify the indemnified party of its election as herein provided
or
contests its obligation to indemnify the indemnified party for such Losses
under
this Agreement, the indemnified party may defend against, negotiate, settle
or
otherwise deal with such Claim. If the indemnified party defends any Claim,
then
the indemnifying party shall reimburse the indemnified party for the Expenses
of
defending such Claim upon submission of periodic bills. If the indemnifying
party shall assume the defense of any Claim, the indemnified party may
participate, at his or its own expense, in the defense of such Claim; provided,
however, that such indemnified party shall be entitled to participate in
any
such defense with separate counsel at the expense of the indemnifying party
if
(i) so requested by the indemnifying party to participate or (ii) in the
reasonable opinion of counsel to the indemnified party, a conflict or potential
conflict exists between the indemnified party and the indemnifying party
that
would make such separate representation advisable; and provided, further,
that
the indemnifying party shall not be required to pay for more than one such
counsel for all indemnified parties in connection with any Claim. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such Claim.
18
(b) After
any final judgment or award shall have been rendered by a court, arbitration
board or administrative agency of competent jurisdiction and the expiration
of
the time in which to appeal therefrom, or a settlement shall have been
consummated, or the indemnified party and the indemnifying party shall have
arrived at a mutually binding agreement with respect to a Claim hereunder,
the
indemnified party shall forward to the indemnifying party notice of any sums
due
and owing by the indemnifying party pursuant to this Agreement with respect
to
such matter and the indemnifying party shall be required to pay all of the
sums
so due and owing to the indemnified party by wire transfer of immediately
available funds within 10 business days after the date of such
notice.
(c) The
failure of the indemnified party to give reasonably prompt notice of any
Claim
shall not release, waive or otherwise affect the indemnifying party's
obligations with respect thereto except to the extent that the indemnifying
party can demonstrate actual loss and prejudice as a result of such
failure.
9.4 Tax
Treatment of Indemnity Payments.
The
Seller and the Purchaser agree to treat any indemnity payment made pursuant
to
this Article 9 as an adjustment to the Purchase Price for federal, state,
local
and foreign income tax purposes.
ARTICLE
X
MISCELLANEOUS
10.1 Payment
of Sales, Use or Similar Taxes.
All
sales, use, transfer, intangible, recordation, documentary stamp or similar
Taxes or charges, of any nature whatsoever, applicable to, or resulting from,
the transactions contemplated by this Agreement shall be borne by the
Seller.
19
10.2 Survival
of Representations and Warranties.
The
parties hereto hereby agree that the representations and warranties contained
in
this Agreement or in any certificate, document or instrument delivered in
connection herewith, shall survive the execution and delivery of this Agreement,
and the Closing hereunder, regardless of any investigation made by the parties
hereto; provided, however, that any claims or actions with respect thereto
(other than claims for indemnifications with respect to the representation
and
warranties contained in Sections 4.3 and 4.11, which shall survive for periods
coterminous with any applicable statutes of limitation) shall terminate unless
within twelve (12) months after the Closing Date written notice of such claims
is given to the Sellers or such actions are commenced.
10.3 Expenses.
Except
as
otherwise provided in this Agreement, the Seller and the Purchaser shall
each
bear its own expenses incurred in connection with the negotiation and execution
of this Agreement and each other agreement, document and instrument contemplated
by this Agreement and the consummation of the transactions contemplated hereby
and thereby, it being understood that in no event shall the Company bear
any of
such costs and expenses..
10.4 Specific
Performance.
The
Seller and the Company acknowledge and agree that the breach of this Agreement
would cause irreparable damage to the Purchaser and that the Purchaser will
not
have an adequate remedy at law. Therefore, the obligations of the Seller
and the
Company under this Agreement, including, without limitation, the Seller’s
obligation to sell the Shares to the Purchaser, shall be enforceable by a
decree
of specific performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies shall, however, be cumulative and not exclusive
and
shall be in addition to any other remedies which any party may have under
this
Agreement or otherwise.
10.5 Further
Assurances.
The
Seller and the Purchaser each agrees to execute and deliver such other documents
or agreements and to take such other action as may be reasonably necessary
or
desirable for the implementation of this Agreement and the consummation of
the
transactions contemplated hereby.
10.6 Submission
to Jurisdiction; Consent to Service of Process.
(a) The
parties hereto hereby irrevocably submit to the non-exclusive jurisdiction
of
any federal or state court located within the state of New York over any
dispute
arising out of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that all claims
in
respect of such dispute or any suit, action proceeding related thereto may
be
heard and determined in such courts. The parties hereby irrevocably waive,
to
the fullest extent permitted by applicable law, any objection which they
may now
or hereafter have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of such dispute.
Each of the parties hereto agrees that a judgment in any such dispute may
be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
20
(b) Each
of the parties hereto hereby consents to process being served by any party
to
this Agreement in any suit, action or proceeding by the mailing of a copy
thereof in accordance with the provisions of Section 10.10.
10.7 Entire
Agreement; Amendments and Waivers.
This
Agreement (including the schedules and exhibits hereto) represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the party against whom enforcement
of any
such amendment, supplement, modification or waiver is sought. No action taken
pursuant to this Agreement, including without limitation, any investigation
by
or on behalf of any party, shall be deemed to constitute a waiver by the
party
taking such action of compliance with any representation, warranty, covenant
or
agreement contained herein. The waiver by any party hereto of a breach of
any
provision of this Agreement shall not operate or be construed as a further
or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or
remedy
by such party preclude any other or further exercise thereof or the exercise
of
any other right, power or remedy. All remedies hereunder are cumulative and
are
not exclusive of any other remedies provided by law.
10.8 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
state of New York.
10.9 Headings.
The
section headings of this Agreement are for reference purposes only and are
to be
given no effect in the construction or interpretation of this
Agreement.
10.10 Notices.
All
notices and other communications under this Agreement shall be in writing
and
shall be deemed given when delivered personally or mailed by certified mail,
return receipt requested, to the parties (and shall also be transmitted by
facsimile to the Persons receiving copies thereof) at the following
addresses (or to such other address as a party may have specified by notice
given to the other party pursuant to this provision):
|
|
(a)
|
Purchaser:
|
Big
Eye
Capital Inc.
0000
X.
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Xx.
Xxxx
Xxxxxx, President
Phone:000-000-0000
Facsimile:
000-000-0000
21
Copy
to:
Xxxxxxx
Xxxxxxxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
(b)
|
Seller:
|
Mr.
Xxxxxxx Xxxxxxxx
Xx.
Xxxxxxx Xxxxxx
0000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Copy
to:
10.11 Severability.
If
any
provision of this Agreement is invalid or unenforceable, the balance of this
Agreement shall remain in effect.
10.12 Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Nothing in this Agreement
shall create or be deemed to create any third party beneficiary rights in
any
person or entity not a party to this Agreement except as provided below.
No
assignment of this Agreement or of any rights or obligations hereunder may
be
made by either the Seller or the Purchaser (by operation of law or otherwise)
without the prior written consent of the other parties hereto and any
attempted assignment without the required consents shall be void; provided,
however, that the Purchaser may assign this Agreement and any or all rights
or
obligations hereunder (including, without limitation, the Purchaser's rights
to
purchase the Shares and the Purchaser's rights to seek indemnification
hereunder) to any Affiliate of the Purchaser; provided, further, that
notwithstanding any such assignment or delegation, the Purchaser shall continue
to be bound by all the terms of this Agreement. Upon any such permitted
assignment, the references in this Agreement to the Purchaser shall also
apply
to any such assignee unless the context otherwise requires.
22
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
BIG
EYE CAPITAL, INC.
By: ________________________________
Name:
Xxxx Xxxxxx
Title:President
IMPLANT
TECHNOLOGIES, INC.
By:_________________________________
Name:
Title:
__________________________________
Xxxxxxx
Xxxxxxxx
__________________________________
Xxxxxxx
Xxxxxx
23
