Exhibit 2.1
EXCHANGE OF STOCK AGREEMENT AND PLAN OF REORGANIZATION
Exchange of Stock Agreement and Plan of Reorganization dated as of
December 15, 1997, hereinafter sometimes referred to as "the Agreement," by and
between Vascular International of Nevada, Inc. ("Vascular/Nevada" or "the Public
Company") a Nevada corporation, having its principal place for the transaction
of business c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Jensen, Duffin, ▇▇▇▇▇▇, Dibb & ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and The Rose Group
Corporation, a Delaware corporation ("The Rose Group" or "the Acquired
Corporation"), having its current principal place for the transaction of
business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, The Rose Group has issued a total of 100 shares (the
"Corporation Shares") to its president, ▇▇▇▇▇▇▇ ▇▇▇▇, which in fact constitutes
all of the issued and outstanding shares of the common stock of the Acquired
Corporation; and
WHEREAS, prior to giving effect to a reverse stock split on a fifty
share for one share basis ("the Stock Split"), Vascular/ Nevada has a
capitalization of 50,000,000 shares of common stock, $0.001 par value per share,
of which 48,010,923 shares are at present issued and outstanding or otherwise
the subject of stock subscription agreements; and
WHEREAS, Vascular/Nevada desires to acquire from ▇▇▇▇▇▇▇ ▇▇▇▇ all of
the Corporation Shares in exchange solely for 4,500,000 post reverse split
shares of Vascular/Nevada common stock (the "New Issue Exchange Shares"); and
WHEREAS, at the closing of the exchange of stock contemplated by this
Agreement, Vascular/Nevada will not have any assets or liabilities other than
cash in the approximate amount of $15,000 less any expenses required to bring
its books and records up-to-date through December 31, 1997; and
WHEREAS, it is the intention of Vascular/Nevada and The Rose Group that
the exchange of the Corporation Shares for the New Issue Exchange Shares
constitute a "reorganization" as defined in Section 368(a) (1) (B) of the
Internal Revenue Code of 1986, as amended.
NOW THEREFORE, in consideration of the foregoing provisions to be
incorporated in the Agreement and the mutual covenants herein contained, IT IS
AGREED is follows:
ARTICLE I
EXCHANGE OF SHARES
Section 1.1 EXCHANGE OF STOCK. Subject to the terms and conditions of
this Agreement, at the "Closing Date" as such term as defined in Section 7.1
hereof, the Corporation Shares shall be exchanged for the New Issue Exchange
Shares.
Section 1.2 DELIVERY OF CERTIFICATES. At the Closing Date, certificates
representing all of the issued and outstanding shares of The Rose Group duly
endorsed to Vascular/Nevada with signatures guaranteed and with all requisite
stock transfer tax stamps affixed, shall be delivered to the Public Company. The
cost of any transfer tax stamps required to be affixed to any stock certificates
shall be paid by The Rose Group. Upon delivery by Vascular/Nevada of the
certificates evidencing the New Issue Exchange Shares ▇▇▇▇▇▇▇ ▇▇▇▇ and all other
persons who may then be shareholders of The Rose Group shall be vested with good
and valid title to such New Issue Exchange Shares, free and clear of all liens,
claims and encumbrances. The New Issue Exchange Shares shall constitute more
than eighty (80%) percent of the outstanding common stock of Vascular/Nevada.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF VASCULAR/NEVADA
Vascular/Nevada represents and warrants to ▇▇▇▇▇▇▇ ▇▇▇▇ and any other
shareholders of The Rose Group as follows:
Section 2.1 ORGANIZATION AND QUALIFICATION OF VASCULAR/ NEVADA. The
Public Company is a corporation duly incorporated, duly organized, validly
existing and in good standing under the laws of the State of Nevada. It has
the corporate power and authority to own or lease and operate all of its
properties and assets and to carry on its business as such business is now
being conducted and is duly licensed or qualified to do business and is in
good standing in the State of Nevada. The legal representatives of
Vascular/Nevada (the "Representatives") have previously provided to The Rose
Group copies of its certificate of incorporation and by-laws, certified by
its assistant secretary to be complete and correct, as amended.
Section 2.2 CAPITALIZATION AND OWNERSHIP OF VASCULAR/NEVADA. The
authorized capital stock of Vascular/Nevada consist of (i) 50,000,000 shares of
common stock, $0.001 par value per share, of which 48,010,923 shares were issued
and outstanding (including approximately 9,000,000 shares of treasury stock) as
of December 31, 1997 or otherwise the subject of subscription agreements. All
outstanding shares of Vascular/Nevada common stock are validly issued, fully
paid for and nonassessable with no personal liability attaching to the ownership
thereof and free of pre-emptive rights. There are no shares of Vascular/Nevada
common stock issued or outstanding except as referred to above, and, except as
set forth in the disclosure document annexed hereto (the "Disclosure Document"),
there are no options, calls, subscriptions, warrants, rights, agreements or
commitments of any character obligating the Public Company, contingently or
otherwise, to issue shares of its common stock or to register shares of its
common stock under the Securities Act of 1933, as amended (the "1933 Act"), or
any other applicable federal or state securities laws.
Section 2.3 NO VIOLATIONS. The execution and delivery of this Agreement
by Vascular/Nevada will not violate any provisions of its certificate of
incorporation or by-laws, conflict with any law, rule, statute or regulation to
which is subject or violate or result in a default under any agreement to which
Vascular/Nevada is a party or by which it is bound.
Section 2.4 INVESTMENTS. Vascular/Nevada has not made any investments
and does not own any capital stock of any other corporation or other entity.
Section 2.5 CONSENTS AND APPROVALS. To the best knowledge of the
representatives, no permit, consent, approval or authorization of, or
declaration, filing or registration with any public body or authority or other
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person, firm or entity is necessary in connection with the execution and
delivery by the Public Company of this Agreement or the consummation by it of
the transactions contemplated hereby.
Section 2.6 COMPLIANCE WITH LAW. Vascular/Nevada holds all licenses,
franchises, permits and authorizations necessary for the lawful conduct of its
business, and has complied and is in compliance with all applicable statutes,
laws, ordinances, rules and regulations of all federal, state, local and foreign
governmental bodies, agencies and subdivisions having, asserting or claiming
jurisdiction over it or over any part of its operations.
Section 2.7 FINANCIAL STATEMENTS. The Representatives have provided to
The Rose Group copies of the financial statements of Vascular/Nevada for the
fiscal years ended December 31, 1996 and December 31, 1995 including balance
sheets, statements of operations, statement of changes in shareholders' equity
for such years and the footnotes thereto. The financial statements of
Vascular/Nevada represent (a) the financial position, results of operations and
changes in financial position of Vascular/Nevada, as of the respective dates and
for the respective periods indicated, and (b) have been prepared in accordance
with generally accepted accounting principles ("GAAP") consistently applied.
Section 2.8 EXISTING CONDITION. Except as disclosed in the Disclosure
Document, since December 31, 1996, the Public Company has not:
(a) incurred any liabilities out of the ordinary course of
business;
(b) sold, encumbered, assigned or transferred any of its
assets;
(c) made or suffered any amendment or termination of any
material agreement, contract, commitment, lease under which the Public Company
is lessee, or cancelled, modified or waived any significant debts or claims held
by it or waived any rights of significant value, whether or not in the ordinary
course of business;
(d) suffered any damage, destruction or loss, whether or not
covered by insurance;
(e) suffered any material adverse change in its business,
operations, assets, properties, prospects or condition (financial or otherwise);
(f) made commitments or agreements for capital expenditures;
(g) hired any employees or increased the salaries or other
compensation of, or made any advance or loan to, any of its employees or
consultants or made any increase in, or any addition to, other benefits to which
any of its employees may be entitled;
(h) changed any of the accounting principles followed by it or
the methods of applying such principles; or
(i) entered into any transaction other than in the ordinary
course of business consistent with past practice.
Section 2.9 TITLE TO PROPERTIES; LEASEHOLD INTERESTS. Vascular/Nevada
has good and valid title to all properties and assets, real, personal and
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mixed, free and clear of all mortgages, liens, pledges, security interests,
charges, claims, restrictions and other encumbrances and defects of title of any
nature whatsoever, except for liens for taxes not yet due and payable.
Section 2.10 CONDITION OF TANGIBLE ASSETS. All material items of
tangible personal property are in good condition and repair, subject to normal
wear and tear, and are usable in the regular and ordinary course of business of
Vascular/Nevada.
Section 2.11 BOOKS OF ACCOUNT. The books, records and accounts of
Vascular/Nevada maintained with respect to its business accurately and fairly
reflect, in reasonable detail, all the transactions and all the assets and
liabilities of the Public Company. Vascular/Nevada has not engaged in any
transaction, maintained any bank account or used any of its funds except for
transactions, bank accounts and funds which have been and are reflected in its
normally maintained books and records.
Section 2.12 LITIGATION. No litigation, including any arbitration,
investigation or other proceeding of or before any court, arbitrator or
governmental or regulatory official, body or authority is pending or, to the
best of its knowledge, is threatened against Vascular/Nevada. The Public Company
is not a party to or subject to the provisions of any judgment, order, writ,
injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which may materially and adversely affect
the business or assets of Vascular/Nevada.
Section 2.13 CONTRACTS AND COMMITMENTS. Except as listed and annexed to
the Disclosure Document, Vascular/Nevada is not a party to any written or oral:
(a) agreement, contract or commitment with any present or
former employee or consultant or for the employment of any person, other than
contracts terminable at will without future liability to the Public Company;
(b) agreement contract or commitment for the future purchase
of, or payment for, equipment, supplies or products, or for the performance of
services by a third party except for any agreement, contract or commitment
arising in the ordinary course of business;
(c) agreement, contract or commitment to finance any
acquisition of or purchase any asset or to perform any service; or
(d) note, debenture, bond, equipment trust agreement, letter
of credit agreement, loan agreement or to their contract or commitment for the
borrowing or lending of money or agreement or arrangement for a line of credit
or guarantee, pledge or undertaking of the indebtedness of any other person.
Each of the agreements, contracts, commitments, leases, plans and other
instruments, documents and undertakings referenced in the Disclosure Document
are valid and enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting the rights of creditors generally; Vascular/Nevada is not in default
of the performance, observance or fulfillment of any material obligations,
covenant or condition contained therein; and no event has occurred which with or
without the giving of notice or lapse of time, or both, would constitute a
default thereunder; furthermore, except as may be disclosed in the Disclosure
Document, no such agreement, contract, commitment, lease, plan or other
instrument, document or undertaking, in the reasonable opinion of the Public
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Company, contains any contractual requirement with which there is a likelihood
Vascular/Nevada will be unable to comply.
Section 2.14 NO BROKER OR FINDER. Vascular/Nevada has not dealt with or
retained any finder or broker whose fees or expenses have been paid by the
Public Company or for whose fees or expenses it would be responsible in
connection with this Agreement or the transactions contemplated hereby.
Section 2.15 EMPLOYEE BENEFIT PLANS AND ARRANGEMENTS. Vascular/Nevada
has not sponsored, maintained or supported, or otherwise been a party to, in
default under, or had any liability or accrued obligations under, any plan,
program, fund or arrangement, either qualified or non-qualified for federal
income tax purposes, relating to the employees of the Public Company, whether
for the benefit of a single individual or for more than one individual, and
whether or not funded, including, without limitation, any incentive or other
benefit arrangement for employees, their dependents and/or their beneficiaries
and any "employee pension benefit plan" or "employee welfare benefit plan", as
such terms are defined in Section 3 of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"). Vascular/Nevada has not, at any time,
maintained or contributed or been required to maintain or contribute to any
"Multi-Employer Plan" as such term is defined in Section 3(37) of ERISA.
Section 2.16 COMPLETENESS OF DISCLOSURE. No representation or warranty
in this Agreement or in the annexed Disclosure Document nor in any other
certificate, exhibit, statements, document or instrument furnished or to be
furnished to The Rose Group by Vascular/Nevada pursuant to this Agreement, or in
connection with the negotiation, execution or performance of this Agreement,
contains any untrue statement of a material fact or omits to state a material
fact required to be stated or necessary to make any statement made, not
misleading.
Section 2.17 TAX MATTERS. Vascular/Nevada has filed or will file on a
timely basis (including all extensions) all tax returns which were required to
have been filed, or are hereafter required to be filed up to the Closing Date by
it (including, without limitation, all federal, state, county, local and foreign
tax returns) and such returns are complete and accurate in all material
respects, and the Public Company has paid or provided for all taxes, interest or
penalties which have been incurred or are due and payable pursuant to such
returns or pursuant to any assessments received by it in connection with such
returns. No foreign, federal, state, local or other taxing authority has
provided the Public Company with any notice of any questions relating to, or
claims asserted for, taxes against Vascular/Nevada for which it may be liable.
All taxes which Vascular/Nevada is required by law to withhold or collect have
been duly withheld or collected and, to the extent required, have been paid over
to the proper governmental authorities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ROSE GROUP
The Rose Group represents and warrants to Vascular/Nevada as follows:
Section 3.1 ORGANIZATION AND QUALIFICATION OF THE ROSE GROUP. The Rose
Group is a corporation duly incorporated, duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Corporation has
the corporate power and authority to own or lease and operate all of its
properties and assets and to carry on its business as such business is now being
conducted and is duly licensed or qualified to do business and is in good
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standing in all jurisdictions in which the nature of its business or the
character or location of the properties and assets owned or leased by it makes
such licensing or qualifications necessary and where the failure to qualify
would not have a material adverse effect on operations, properties, assets,
liabilities, earnings or business.
Section 3.2 CAPITALIZATION AND OWNERSHIP OF THE ROSE GROUP. The
authorized capital stock of The Rose Group consists of 1,000 shares of common
stock, no par value per share, of which 100 shares are issued and
outstanding. All outstanding shares of The Rose Group common stock are validly
issued and outstanding, fully paid and nonassessable with no personal liability
attaching to the ownership thereof, free of preemptive rights and are owned free
and clear of all liens, claims and encumbrances. No securities are issued or
outstanding except for the aforementioned 100 shares of common stock and, at
closing, there will be no options, calls, subscriptions, warrants, rights,
agreements or commitments of any character obliging the Corporation on a
contingent basis or otherwise, to issue shares of common stock or to register
shares of its common stock under the 1933 Act or other applicable federal or
state securities laws.
Section 3.3 AUTHORITY. The Rose Group has the full power and authority
to enter into this Agreement and to carry out its obligations hereunder. Other
than approval by its board of directors, no proceedings, on the part of the
Corporation are necessary to authorize this Agreement or the transactions
contemplated hereby. This Agreement constitutes the legal, valid and bind
obligation of The Rose Group enforceable in accordance with its terms.
Section 3.4 CONSENTS AND APPROVALS. No permit, consent, approval or
authorization of, or declaration, filing or registration with, any public body
or authority or other person, firm or entity is necessary in connection with the
execution and delivery by The Rose Group of this Agreement or the consummation
by the Corporation of the transactions contemplated hereby.
Section 3.5 FINANCIAL STATEMENTS. The Rose Group agrees to provide to
the Representatives prior to closing audited financial statements of the
Acquired Corporation for the period ending December 31, 1997 to be accompanied
by an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, CPAs, with offices located in Tampa,
Florida. When produced, these financial statements (a) will present fairly the
financial position, results of operations and changes in financial position of
the Acquired Corporation, as of the respective dates and for the respective
periods indicated, and (b) will be prepared in accordance with GAAP consistently
applied.
Section 3.6 COMPLETENESS OF DISCLOSURE. No representation or warranty
in this Agreement nor any certificate, exhibit, statements, document or
instrument furnished or to be furnished to Vascular/Nevada by The Rose Group in
connection with the negotiation, execution or performance of this Agreement,
contains any untrue statement of a material fact or omits to state a material
fact required to be stated or necessary to make any statement made, not
misleading.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 4.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the parties to this Agreement or in any
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certificate, exhibit, document or instrument furnished hereunder shall survive
for one year from the closing of the transactions contemplated hereby.
ARTICLE V
AGREEMENTS PENDING CLOSING
Section 5.1 AGREEMENT PENDING THE CLOSING. Vascular/Nevada covenants
and agrees that, pending the Closing and except as otherwise agreed to in
writing by The Rose Group, it will:
(a) BUSINESS IN THE ORDINARY COURSE. Conduct its business
solely in the ordinary course.
(b) MAINTENANCE OF PHYSICAL ASSETS. Continue to maintain and
service the physical assets used in the conduct of its business in the same
manner as has been its consistent past practice.
(c) EMPLOYEES AND BUSINESS RELATIONS. Continue to maintain its
business relations and relations with its employees in the same manner as has
been its consistent past practice.
(d) COMPLIANCE WITH LAW. ETC. Comply with all laws,
ordinances, rules, regulations and orders applicable to it or their operations,
assets or properties in respect thereof, the noncompliance with which might
materially affect its business or assets.
(e) COOPERATION. Cooperate with the other parties to this
Agreement and use its best efforts to cause all of the conditions to the
obligations on its part to be performed under this Agreement to be satisfied
before or immediately after the Closing Date.
(f) SALES OF ASSETS; NEGOTIATIONS. Other than in the ordinary
course of business consistent with past practice, the Public Company will not
initiate or participate in any discussions or negotiations or enter into any
agreement to sell or encumber any part of its assets.
(g) PRESS RELEASES. No party to this Agreement shall give
notice to third parties or otherwise make any public statement or release
concerning this Agreement or the transactions contemplated hereby except for
such written information as shall have been approved in writing by the
representatives of The Rose Group as to form and content.
ARTICLE VI
CONDITIONS PRECEDENT TO THE CLOSING
AND ADDITIONAL COVENANTS OF VASCULAR/NEVADA
Section 6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE ROSE GROUP.
All obligations of The Rose Group under this Agreement are subject to the
fulfillment or satisfaction, and Vascular/Nevada covenants and agrees to fulfill
or satisfy, prior to or at the Closing, each of the following conditions
precedent:
(a) REPRESENTATIONS AND WARRANTIES TRUE AS OF THE CLOSING
DATE. The representations and warranties of Vascular/Nevada contained in this
Agreement or in the annexed Disclosure Document delivered by the Public Company
to The Rose Group shall be true on the date of this Agreement without regard to
any updates furnished by Vascular/Nevada after the date of this Agreement and
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shall be true on the Closing Date with the same effect as though such
representations and warranties were made as of such date.
(b) COMPLIANCE WITH THIS AGREEMENT. Vascular/Nevada shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing.
(c) NO THREATENED OR PENDING LITIGATION. On the Closing Date,
no suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened or be pending before any court or government or
regulatory official, body or authority in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with this Agreement
or the consummation of the transactions contemplated hereby, and no
investigation that might result in any such suit, action or proceeding shall be
pending or threatened.
(d) CONSENTS AND APPROVALS. All of the consents required to
carry out the transactions contemplated hereunder have been obtained or will be
obtained by the closing date including resolutions of the board of directors and
stockholders of Vascular/Nevada approving the entry into this Agreement and the
carrying out of transactions contemplated herein.
(e) MATERIAL ADVERSE CHANGES. There has been no material
adverse change in the business, operations, assets or properties of
Vascular/Nevada.
(f) APPROVAL OF COUNSEL; CORPORATE MATTERS. All actions,
proceedings, resolutions, instruments and documents required to carry out this
Agreement or incidental hereto and all other related legal matters shall have
been approved on the Closing Date by counsel for The Rose Group in the exercise
of its reasonable judgment.
(g) CERTIFICATES. Vascular/Nevada shall have delivered to the
legal representatives of The Rose Group, one or more certificates for the New
Issue Exchange Shares and the Public Company shall also have delivered to the
representatives of The Rose Group such other documents, instruments,
certifications and further assurances as its counsel may reasonably require.
(h) RESIGNATIONS. Subsequent to the election of three
qualified nominees of The Rose Group to be directors of Vascular/Nevada and
their acceptance of the legal duties and obligations related thereto, all
officers and predecessor directors of the Public Company shall have submitted
written resignations.
(i) NO LIABILITIES. At closing, Vascular/Nevada shall have no
liabilities or obligations, either accrued, absolute, contingent or otherwise.
For purposes of this Agreement, the terms "liabilities" shall
include, without limitation, any direct or indirect indebtedness, guaranty,
endorsement, indemnity, claim, loss, damage, deficiency, cost, expense, or
obligation, fixed or unfixed, ▇▇▇▇▇▇ or inchoate, liquidated or unliquidated,
secured or unsecured or a reserve for any of the foregoing.
Section 6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF VASCULAR/NEVADA.
All obligations of Vascular/Nevada under this Agreement are subject to the
fulfillment or satisfaction, prior to or at the Closing, of each of the
following conditions precedent:
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(a) REPRESENTATIONS AND WARRANTIES TRUE AS OF THE CLOSING
DATE. The representations and warranties of The Rose Group contained in this
Agreement or in any list, certificate or document delivered by The Rose Group to
Vascular/Nevada pursuant to the provisions of this Agreement shall be true on
the Closing Date with the same effect as though such representations and
warranties were made as of such date.
(b) COMPLIANCE WITH THIS AGREEMENT. The Rose Group shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by them prior to or at the Closing.
(c) NO THREATENED OR PENDING LITIGATION. On the Closing Date,
no suit, action or other proceeding, or injunction of final judgment relating
thereto, shall be threatened or be pending against The Rose Group before any
court or governmental or regulatory official, body or authority in which it is
sought to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby, and no investigation that might result in any such suit,
action or proceeding shall be pending or threatened.
(d) MATERIAL ADVERSE CHANGES. There shall have been no
material adverse changes in the business, operations, assets or properties of
The Rose Group.
(e) APPROVAL OF COUNSEL; CORPORATE MATTERS. All actions,
proceedings, resolutions, instruments and documents required to carry out this
Agreement or incidental hereto and all other related legal matters shall have
been approved on the Closing Date by counsel for Vascular/Nevada in the exercise
of its reasonable judgment.
(f) CERTIFICATES. The Rose Group shall have delivered to
Vascular/Nevada one or more certificates for the Corporation Shares and shall
also have delivered to Vascular/Nevada such other documents, instruments,
certifications and further assurances as its counsel may reasonably require.
ARTICLE VII
CLOSING, FURTHER ASSURANCES
AND CONDITIONS SUBSEQUENT
Section 7.1 CLOSING. The Closing Date (the "Closing") for the exchange
of the Corporation Stock and the New Issue Exchange Shares shall take place at
the offices of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. on March 12, 1998 or such other place or
date as may be mutually agreed upon in writing by the parties to this Agreement.
Section 7.2 ACTS TO BE PERFORMED BY THE CORPORATION. Following the
Closing Date, The Rose Group shall cause Vascular/Nevada to:
(a) accept the resignation of its present registered agent in
the States of Nevada and Utah, if appropriate, and appoint a successor thereto;
(b) change the address of its registered office in the State
of Utah and establish a registered office in Florida;
(c) change the address of its principal executive offices and
to take all actions necessary to qualify to transact business in the
jurisdiction of Florida and all other jurisdictions in which the nature of
business
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conducted by Vascular/Nevada after its merger with The Rose Group or the
character or location of the properties and assets owned or leased by it make
such qualification necessary, except where the failure to so qualify would not
have a material adverse effect on the Public Company;
(d) execute the appropriate certificates and make the
appropriate public filings to effectuate each of the foregoing actions; and
(e) change the name of the Public Company to The Rose Group
and apply to the NASDAQ/OTC Bulletin Board to trade the shares of the Public
Company under the name of The Rose Group with an appropriate NASDAQ symbol, the
first choice of which is BFPD.
Section 7.3 FURTHER ASSURANCES. After the Closing Date, Vascular/Nevada
and The Rose Group agree to execute, acknowledge and deliver to the other such
other instruments of conveyance and transfer and will take such other actions
and execute and deliver such other documents, certifications and further
assurances as the other may reasonably require in order to vest more effectively
the Corporation Shares and the New Issue Exchange Shares, as the case may be, in
the owners thereof. In addition, each of the parties will cooperate by executing
and delivering to the other such additional instruments and documents and take
such other actions as may be reasonably requested from time to time by any other
party necessary to carry out, evidence and confirm the intended purposes of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 TERMINATION.
(a) Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated by written notice of
termination at any time before the Closing Date only as follows:
(i) by mutual consent of authorized representatives
of Vascular/Nevada and The Rose Group;
(ii) by The Rose Group at any time if the
representations and warranties of Vascular/Nevada prove to be materially
incorrect when made;
(iii) by Vascular/Nevada if the representations and
warranties of The Rose Group are found to have been materially incorrect when
made; or
(iv) by either Vascular/Nevada or The Rose Group if
the transactions contemplated by this Agreement do not close on or before April
15, 1998 unless extended in writing by the mutual consent of the parties.
(b) In the event of the termination and abandonment of this
Agreement, except as provided in this Section 8.1, this Agreement shall become
void and have no effect, without any liability on the part of any of the parties
or their directors or officers or stockholders. Notwithstanding any such
termination and abandonment, the provisions of Section 5.1 regarding
confidential information shall remain binding upon the parties hereto.
Section 8.2 BROKERS' AND FINDERS' FEES. Each party represents and
warrants to the other that all negotiations relative to this Agreement have
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been carried on by it directly without the intervention of any person except for
▇▇▇▇▇ ▇▇▇▇▇▇▇. At the Closing Date, it is intended that 200,000 shares of
Vascular/Nevada common stock shall be reserved for issuance to ▇▇. ▇▇▇▇▇▇▇ for
the exschange for the release of any obligations due to ▇▇. ▇▇▇▇▇▇▇ by The Rose
Group, including, but not limited to, any services rendered as finder in this
transaciton. It is further understood and agreed that ▇▇. ▇▇▇▇▇▇▇ will have the
right to assign to third parties who may have cooperated with him in this
transaction all or a part of the shares of Vascular/Nevada (then to be known as
The Rose Group) issued to him as a finder's fee under this Section 8.2.
Section 8.3 INCOME, SALES, TRANSFER AND DOCUMENTARY TAXES; ETC. The
Rose Group shall pay all federal, state and local income taxes, if any, due as a
result of the purchase, sale or transfer of the New Issue Exchange Shares and
the Corporation Shares in accordance with the terms and conditions of this
Agreement.
Section 8.4 EXPENSES. Vascular/Nevada and The Rose Group shall each pay
their own expenses incidental to the preparation and negotiation of this
Agreement.
Section 8.5 CONTENTS OF AGREEMENT; PARTIES IN INTEREST; ETC. This
Agreement, including the annexed Disclosure Documents, set forth the entire
understanding of the parties with respect to the transactions contemplated by
this Agreement. It shall not be amended or modified except by written instrument
duly executed by representatives of Vascular/Nevada and The Rose Group. Any and
all previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement.
Section 8.6 ASSIGNMENT AND BINDING EFFECT. This Agreement may not be
assigned prior to the Closing by either party without the prior written consent
of the other.
Section 8.7 WAIVER. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a written
instrument duly executed by such party.
Section 8.8 NOTICES. Any notice, request, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given only if delivered personally or sent by
telegram or by registered or certified mail, postage prepaid, as follows:
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If to Vascular/Nevada, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Jensen, Duffin, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
and
If to The Rose Group, to:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
The Rose Group Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communications will be deemed to have been given as
of the date so delivered, telephoned or mailed.
Section 8.9 GOVERNING LAW. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of Delaware.
Section 8.10 NO BENEFIT TO OTHERS. The representations, warranties,
covenants and agreements contained in this Agreement are for the sole benefit of
the parties hereto.
Section 8.11 SECTION HEADINGS. All section headings contained in this
Agreement are for convenience of reference only, do not form a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 8.12 SCHEDULES AND EXHIBITS. All Exhibits referred to herein
are intended to be and hereby are specifically made a part of this Agreement.
Section 8.13 SEVERABILITY. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions.
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Section 8.14 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more counterparts
taken together shall have been executed and delivered by the parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written .
ATTEST: VASCULAR INTERNATIONAL OF
NEVADA, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- -----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Assistant ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Secretary
ATTEST: THG ROSE GROUP CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇ ▇. ▇▇▇▇, Assistant ▇▇▇▇▇▇▇ ▇▇▇▇, President
Secretary
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