1
AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
GALAXY VENTURES, INC.
AND
XXXX MINIMALLY INVASIVE SPINE SURGERY INC.
2
TABLE OF CONTENTS
1. Plan of Reorganization...............................................................................1
2. Exchange of Shares...................................................................................1
3. Pre-Closing Events...................................................................................2
4. Exchange of Securities...............................................................................2
5. Post Acquisition Events..............................................................................3
6. Other Matters........................................................................................3
7. Delivery of Shares...................................................................................4
8. Representations of CMIS Shareholders.................................................................4
9. Representations of CMIS..............................................................................4
10. Representations of Galaxy and Xxxxxx.................................................................6
11. Closing..............................................................................................8
12. Conditions Precedent to the Obligations of CMIS......................................................8
13. Conditions Precedent to the Obligations of Galaxy ..................................................10
14. Indemnification.....................................................................................10
15. Nature and Survival of Representations..............................................................11
16. Documents at Closing................................................................................11
17. Finder's Fees.......................................................................................12
18. Miscellaneous.......................................................................................13
Signature Page...................................................................................................13
Exhibit A - CMIS Stockholder Schedule
Exhibit B - Amendment to Certificate of Incorporation
Exhibit C - Investment Letter
(i)
3
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this day of June, 1998, by and among Galaxy
Ventures, Inc., a Delaware corporation (hereinafter "Galaxy"); Xxxxxxx X.
Xxxxxx, the sole officer and director of Galaxy (hereinafter "Xxxxxx"); Xxxx
Minimally Invasive Spine Surgery, Inc., a California corporation (hereinafter
"CMIS"), and the owners of all the outstanding shares of common stock of CMIS
(hereinafter the "CMIS Stockholders").
RECITALS:
WHEREAS, the CMIS Stockholders own all of the issued and outstanding
common stock of CMIS which comprises 1,000 shares (the "CMIS Common Stock").
Galaxy desires to acquire the CMIS Common Stock solely in exchange for voting
common stock of Galaxy, making CMIS a wholly-owned subsidiary of Galaxy; and
WHEREAS, the CMIS Stockholders (as set forth on the attached Exhibit
"A") desire to acquire voting common stock of Galaxy in exchange for the CMIS
Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. PLAN OF REORGANIZATION. It is hereby agreed that all of the CMIS
Common Stock shall be acquired by Galaxy in exchange solely for Galaxy common
voting stock (the "Galaxy Shares"). It is the intention of the parties hereto
that all of the issued and outstanding shares of capital stock of CMIS shall be
acquired by Galaxy in exchange solely for Galaxy common voting stock and that
this entire transaction qualify as a corporate reorganization under Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended, and related or
other applicable sections thereunder.
2. EXCHANGE OF SHARES. Galaxy and CMIS Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the CMIS Common Stock
shall be delivered at Closing to Galaxy in exchange for the Galaxy Shares, after
giving effect to a 16 to 1 reverse stock split (the "Galaxy Reverse Stock
Split") as to all presently outstanding shares of Galaxy common stock, as
follows:
(a) At Closing, Galaxy shall, subject to the conditions set forth
herein, issue an aggregate of 5,000,000 shares of Galaxy common stock for
immediate delivery to the CMIS Stockholders on the basis of 5,000 Galaxy Shares
for each outstanding share of CMIS Common Stock.
(b) Each CMIS Stockholder shall execute this Agreement.
4
(c) Unless otherwise agreed by Galaxy and CMIS this transaction shall
close only in the event Galaxy is able to acquire all of the outstanding CMIS
Common Stock.
3. PRE-CLOSING EVENTS. The Closing is subject to the completion of the
following:
(a) Galaxy shall have authorized 30,000,000 shares of $.001 par value
common stock and 100,000 shares of $.001 par value preferred stock. The
preferred stock shall be subject to issuance in such series and with such
rights, preferences and designations as determined in the sole discretion of the
board of directors.
(b) Galaxy shall have effectuated the Galaxy Reverse Stock Split at or
prior to Closing, and shall have 1,800,000 shares of its common stock issued and
outstanding and no other shares of capital stock issued or outstanding.
(c) Galaxy shall demonstrate to the reasonable satisfaction of CMIS
that it has no material assets and no liabilities contingent or fixed.
4. EXCHANGE OF SECURITIES. As of the Closing Date each of the following
shall occur:
(a) Each share of CMIS Common Stock issued and outstanding immediately
prior to the Closing Date shall be exchanged for 5,000 Galaxy Shares to be
delivered at Closing. All such outstanding shares of CMIS Common Stock shall be
deemed, after Closing, to be owned by Galaxy. The holders of such certificates
previously evidencing shares of CMIS Common Stock outstanding immediately prior
to the Closing Date shall cease to have any rights with respect to such shares
of CMIS Common Stock except as otherwise provided herein or by law;
(b) Any shares of CMIS Common Stock held in the treasury of CMIS
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
(c) The 1,800,000 shares of Galaxy common stock previously issued and
outstanding prior to the Closing, after giving effect to the Galaxy Reverse
Split will remain outstanding.
5. OTHER EVENTS OCCURRING AT CLOSING. At Closing, the following shall
be accomplished:
(a) Galaxy shall file an amendment to its Certificate of Incorporation
with the Secretary of State of the State of Delaware in substantially the form
attached hereto as Exhibit "B" effecting an amendment to its Certificate of
Incorporation to reflect a name change and to accomplish the Galaxy Reverse
Stock Split, all as set forth in the attached Exhibit "B".
(b) The resignation of the existing Galaxy officer and director and
appointment of new officers and directors as described in Section 12(f) hereof.
3
5
(c) Galaxy shall have completed a private placement of 1,333,333 shares
of its common stock at $1.50 per share. The gross proceeds of this offering (the
"Galaxy Financing") shall be $2,000,000, which amount, less $75,000 costs, shall
be delivered to the control of new management of Galaxy at Closing in good
funds. The Galaxy Financing shall have been completed in compliance with all
applicable state and federal securities laws and the securities sold shall be
delivered at Closing to the investors in the Galaxy Financing.
6. OTHER MATTERS.
(a) Except as otherwise described herein, including the Galaxy Reverse
Stock Split, there shall be no stock dividend, stock split, recapitalization, or
exchange of shares with respect to or rights issued in respect of, Galaxy's
capital stock after the date hereof and there shall be no dividends paid on
Galaxy's capital stock after the date hereof, in each case through and including
the Closing Date.
(b) CMIS shall have received all requisite director and shareholder
approval of all matters set forth herein, and no shareholder of CMIS shall have
exercised any dissenters rights under applicable corporate law.
(c) Galaxy shall have received all requisite shareholder approval of
the matters set forth herein.
(d) At or prior to Closing, Galaxy shall announce the declaration of a
distribution of Series A Warrants to the shareholders of record as of a date to
be announced but which shall be as of a date prior to Closing. The Series A
Warrants shall be distributed on the basis of one warrant for each share of
post-split common stock held by each shareholder of record. There shall be
1,800,000 Series A Warrants distributed, each of which shall entitle the holder
thereof to purchase one share of the Company's common stock at $3.00 per share
prior to June 30, 2000, subject to the terms and conditions set forth in the
Memorandum (as such term is hereinafter defined).
(e) All parties hereto acknowledge and recognize that as an integral
part of the consideration given herein, Galaxy has agreed and committed to
immediately proceed, upon Closing, to obtain all necessary audited financial
statements and to commence preparation for filing, as soon as practicable, a
registration statement with the Securities and Exchange Commission ("S.E.C."),
registering the distribution of the Series A Warrants and the exercise of said
Warrants. Therefore Galaxy, with the complete cooperation of CMIS, hereby agrees
to commence preparation of said registration statement for filing with the
S.E.C. and to attempt to file such registration statement within three months of
Closing and to prosecute the same with all diligence to effectiveness.
7. DELIVERY OF SHARES. On or as soon as practicable after the Closing
Date, CMIS will use its best efforts to cause the CMIS Stockholders to surrender
for cancellation certificates representing their shares of CMIS Common Stock,
against delivery of certificates representing the
4
6
Galaxy Shares for which the shares of CMIS Common Stock are to be exchanged at
Closing.
8. REPRESENTATIONS OF CMIS STOCKHOLDERS. CMIS Stockholders hereby
represent and warrant each only as to its own CMIS Common Stock, effective this
date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the CMIS Common Stock is
free from claims, liens, or other encumbrances, and at the Closing Date CMIS
Stockholders will have good title and the unqualified right to transfer and
dispose of such CMIS Common Stock.
(b) Each CMIS Stockholder, respectively, is the sole owner of the
issued and outstanding CMIS Common Stock as set forth in Exhibit "A";
(c) No CMIS Stockholder has the present intent to sell or dispose of
the Galaxy Shares and no CMIS Stockholder is under a binding obligation, formal
commitment, or existing plan to sell or otherwise dispose of the Galaxy Shares.
9. REPRESENTATIONS OF CMIS. CMIS hereby represents and warrants as
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the CMIS Stockholders listed on the
attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of CMIS.
(b) CMIS has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the CMIS Financial
Statements or in Exhibit "A", attached hereto.
(c) The audited financial statements as of and for the period ended
March 20, 1998, which have been delivered to Galaxy (hereinafter referred to as
the "CMIS Financial Statements") are complete and accurate and fairly present
the financial condition of CMIS as of the date thereof and the results of its
operations for the period covered. There are no material liabilities or
obligations, either fixed or contingent, not disclosed in the CMIS Financial
Statements or in any exhibit thereto or notes thereto other than contracts or
obligations in the ordinary course of business; and no such contracts or
obligations in the ordinary course of business constitute liens or other
liabilities which materially alter the financial condition of CMIS as reflected
in the CMIS Financial Statements. CMIS has good title to all assets shown on the
CMIS Financial Statements subject only to dispositions and other transactions in
the ordinary course of business, the disclosures set forth therein and liens and
encumbrances of record. The CMIS Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
(except as may be indicated therein or in the notes thereto).
(d) Since the date of the CMIS Financial Statements, there have not
been any material adverse changes in the financial position of CMIS except
changes arising in the ordinary course of
5
7
business, which changes will in no event materially and adversely affect the
financial position of CMIS.
(e) CMIS is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected in
the CMIS Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against CMIS.
(f) CMIS is in good standing in its jurisdiction of incorporation, and
is in good standing and duly qualified to do business in each jurisdiction where
required to be so qualified except where the failure to so qualify would have no
material negative impact on CMIS.
(g) CMIS has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(h) CMIS has not materially breached any material agreement to which it
is a party. CMIS has previously given Galaxy copies or access thereto of all
material contracts, commitments and/or agreements to which CMIS is a party
including all relationships or dealings with related parties or affiliates.
(i) CMIS has no subsidiary corporations except as described in writing
to Galaxy.
(j) CMIS has made all material corporate financial records, minute
books, and other corporate documents and records available for review to present
management of Galaxy prior to the Closing Date, during reasonable business hours
and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which CMIS is a party and has been
duly authorized by all appropriate and necessary corporate action under
California law and CMIS, to the extent required, has obtained all necessary
approvals or consents required by any agreement to which CMIS is a party.
(l) All information regarding CMIS which is set forth in the Memorandum
or otherwise delivered to Galaxy by CMIS for use in connection with the
transaction (the "Acquisition") described herein is true, complete and accurate
in all material respects.
10. REPRESENTATIONS OF GALAXY AND XXXXXX. Galaxy, and Xxxxxx to the
best of his knowledge, hereby jointly and severally represent and warrant as
follows, each of which representations and warranties shall continue to be true
as of the Closing Date:
(a) As of the Closing Date, the Galaxy Shares, to be issued and
delivered to the CMIS Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly and
6
8
legally issued shares of Galaxy common stock, fully-paid and nonassessable.
(b) Galaxy has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by the board of directors of Galaxy. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
Galaxy is a party and will not violate any judgment, decree, order, writ, rule,
statute, or regulation applicable to Galaxy or its properties. The execution and
performance of this Agreement will not violate or conflict with any provision of
the Articles of Incorporation or by-laws of Galaxy. .........
(c) Galaxy has delivered to CMIS a true and complete copy of its
audited financial statements for the years ended December 31, 1996 and 1997,
(the "Galaxy Financial Statements"). The Galaxy Financial Statements are
complete, accurate and fairly present the financial condition of Galaxy as of
the dates thereof and the results of its operations for the periods then ended.
There are no material liabilities or obligations either fixed or contingent not
reflected therein. The Galaxy Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as may be indicated therein or in the notes thereto) and fairly
present the financial position of Galaxy as of the dates thereof and the results
of its operations and changes in financial position for the periods then ended.
(d) Since December 31, 1997, there have not been any material adverse
changes in the financial condition of Galaxy except with regard to disbursements
to pay reasonable and ordinary expenses in connection with maintaining its
corporate status and pursuing the matters contemplated in this Agreement. Prior
to Closing, all accounts payable and other liabilities of Galaxy shall be paid
and satisfied in full.
(e) Galaxy is not a party to or the subject of any pending litigation,
claims, or governmental investigation or proceeding not reflected in the Galaxy
Financial Statements or otherwise disclosed herein, and there are no lawsuits,
claims, assessments, investigations, or similar matters, to the best knowledge
of Xxxxxx, threatened or contemplated against or affecting Galaxy, its
management or its properties.
(f) Galaxy is duly organized, validly existing and in good standing
under the laws of the State of Delaware; has the corporate power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material negative impact on it.
7
9
(g) Galaxy has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms, or
reports, which are due or required to be filed by it prior to the date hereof,
except where the failure to do so would have no material adverse impact on
Galaxy, and has paid or made adequate provision in the Galaxy Financial
Statements for the payment of all taxes, fees, or assessments which have or may
become due pursuant to such returns or pursuant to any assessments received.
Galaxy is not delinquent or obligated for any tax, penalty, interest,
delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital stock
or other securities of Galaxy, except as contemplated in this Agreement.
(i) The corporate financial records, minute books, and other documents
and records of Galaxy have been made available to CMIS prior to the Closing.
(j) Galaxy has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that Galaxy has breached, any of
the terms or conditions of any agreements, contracts or commitments to which it
is a party or by which it or its assets are is bound. The execution and
performance hereof will not violate any provisions of applicable law or any
agreement to which Galaxy is subject. Galaxy hereby represents that it is not a
party to any material contract or commitment other than appointment documents
with its transfer agent, and that it has disclosed to CMIS all relationships or
dealings with related parties or affiliates.
(k) Galaxy common stock is currently approved for quotation on the OTC
Bulletin Board and there are no stop orders in effect with respect thereto.
(l) All information regarding Galaxy which has been provided to CMIS in
the Galaxy Private Placement Memorandum dated June 4, 1998 (the "Memorandum") or
otherwise disclosed to the public in connection with the transactions
contemplated herein, is true, complete and accurate in all material respects.
Galaxy and Xxxxxx specifically disclaim any responsibility regarding disclosures
as to CMIS or its business.
11. CLOSING. The Closing of the transactions contemplated herein shall
take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing shall be no later than June 30, 1998, unless
extended by mutual consent of all parties hereto. The "Closing Date" of the
transactions described herein (the "Acquisition"), shall be that date on which
all conditions set forth herein have been met and the Galaxy Shares are issued
in exchange for the CMIS Common Stock.
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF CMIS. All obligations of
CMIS under this Agreement are subject to the fulfillment, prior to or as of the
8
10
Closing and/or the Closing Date, as indicated below, of each of the following
conditions:
(a) The representations and warranties by or on behalf of Xxxxxx and
Galaxy contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material respects at and
as of the Closing and Closing Date as though such representations and warranties
were made at and as of such time.
(b) Galaxy shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of Galaxy, shall
have approved in accordance with applicable state corporation law the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein.
(d) On or before the Closing Date, Galaxy shall have delivered to CMIS
certified copies of resolutions of the board of directors and shareholders of
Galaxy approving and authorizing the execution, delivery and performance of this
Agreement and authorizing all of the necessary and proper action to enable
Galaxy to comply with the terms of this Agreement including the election of
CMIS's nominees to the Board of Directors of Galaxy and all matters outlined
herein.
(e) The Acquisition shall be permitted by applicable law and Galaxy
shall have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing officers and directors of Galaxy shall
have resigned in writing from all positions as directors and officers of Galaxy
effective upon the election and appointment of the CMIS nominees.
(g) At the Closing, all instruments and documents delivered to CMIS and
CMIS Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for CMIS.
(h) The shares of restricted Galaxy capital stock to be issued to CMIS
Stockholders and in the Galaxy Financing at Closing will be validly issued,
nonassessable and fully-paid under Delaware corporation law and will be issued
in compliance with all federal, state and applicable corporation and securities
laws.
(i) CMIS and CMIS Stockholders shall have received the advice of their
tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) CMIS shall have received all necessary and required approvals and
consents from required parties and its shareholders.
9
11
(k) Galaxy shall have $1,925,000 in good funds, at Closing, from the
Galaxy Financing, for delivery at the direction of CMIS.
(l) At the Closing, Galaxy shall have delivered to CMIS an opinion of
its counsel dated as of the Closing to the effect that:
(i) Galaxy is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by Galaxy and is a valid and binding obligation of Galaxy
enforceable in accordance with its terms;
(iii) Galaxy through its board of directors and stockholders
has taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Galaxy to CMIS
and CMIS Stockholders hereunder are valid and binding in accordance
with their terms and vest in CMIS Stockholders, as the case may be, all
right, title and interest in and to the Galaxy Shares to be issued
pursuant to the terms hereof, and the Galaxy Shares when issued will be
duly and validly issued, fully-paid and nonassessable;
(v) Galaxy has the corporate power to execute, deliver and
perform under this Agreement;
(vi) Legal counsel for Galaxy is not aware of any liabilities,
claims or lawsuits involving Galaxy;
13. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF GALAXY. All obligations
of Galaxy under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
(a) The representations and warranties by CMIS and CMIS Stockholders
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) CMIS shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing;
(c) CMIS shall deliver on behalf of the CMIS Stockholders a letter
commonly known as an "Investment Letter," signed by each of said shareholders,
in substantially the form attached
10
12
hereto as Exhibit "C", acknowledging that the Galaxy Shares are being acquired
for investment purposes.
(d) CMIS shall deliver an opinion of its legal counsel to the effect
that:
(i) CMIS is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation
and is duly qualified to do business in any jurisdiction where so
required except where the failure to so qualify would have no material
adverse impact on CMIS;
(ii) This Agreement has been duly authorized, executed and
delivered by CMIS.
(iii) The documents executed and delivered by CMIS and CMIS
Stockholders to Galaxy hereunder are valid and binding in accordance
with their terms and vest in Galaxy all right, title and interest in
and to the CMIS Common Stock, which stock is duly and validly issued,
fully-paid and nonassessable.
14. INDEMNIFICATION. For a period of one year from the Closing, Galaxy
and Xxxxxx agree to jointly and severally indemnify and hold harmless CMIS, and
CMIS agrees to indemnify and hold harmless Galaxy and Xxxxxx, at all times after
the date of this Agreement against and in respect of any liability, damage or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses including attorney's fees incident to any of the foregoing,
resulting from any material misrepresentations made by an indemnifying party to
an indemnified party, an indemnifying party's breach of covenant or warranty or
an indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation in or omission from any certificate furnished or to
be furnished hereunder.
15. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. All of the parties hereto are executing and carrying out
the provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement and not upon
any investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
16. DOCUMENTS AT CLOSING. At the Closing, the following documents shall
be delivered:
(a) CMIS will deliver, or will cause to be delivered, to Galaxy the
following:
(i) a certificate executed by the President and Secretary of
CMIS to the effect that all representations and warranties made by CMIS
under this Agreement are true and
11
13
correct as of the Closing, the same as though originally given to
Galaxy on said date;
(ii) a certificate from the jurisdiction of incorporation of
CMIS dated at or about the Closing to the effect that CMIS is in good
standing under the laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as
Exhibit "C" executed by each CMIS Stockholder;
(iv) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of this
Agreement;
(v) certified copies of resolutions adopted by the
shareholders and directors of CMIS authorizing this transaction; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of Galaxy as set forth herein.
(vii) the legal opinion required by Section 13(d) hereof.
(b) Galaxy will deliver or cause to be delivered to CMIS:
(i) stock certificates representing the Galaxy Shares to be
issued as a part of the stock exchange as described herein;
(ii) a certificate of the President of Galaxy, to the effect
that all representations and warranties of Galaxy made under this
Agreement are true and correct as of the Closing, the same as though
originally given to CMIS on said date;
(iii) certified copies of resolutions adopted by Galaxy's
board of directors and Galaxy's Stockholders authorizing the
Acquisition and all related matters described herein;
(iv) certificate from the jurisdiction of incorporation of
Galaxy dated at or about the Closing Date that Galaxy is in good
standing under the laws of said state;
(v) opinion of Galaxy's counsel as described in Section 12(l)
above;
(vi) such other instruments and documents as are required to
be delivered pursuant to the provisions of this Agreement;
(vii) resignation of the existing officer and director of
Galaxy;
(viii) all corporate and financial records of Galaxy; and
12
14
(ix) all other items, the delivery of which is a condition
precedent to the obligations of CMIS, as set forth in Section 13
hereof.
17. FINDER'S FEES. Galaxy, represents and warrants to CMIS, and CMIS
represents and warrants to Galaxy that neither of them, or any party acting on
their behalf, has incurred any liabilities, either express or implied, to any
"broker" of "finder" or similar person in connection with this Agreement or any
of the transactions contemplated hereby. In this regard, Galaxy, on the one
hand, and CMIS on the other hand, will indemnify and hold the other harmless
from any claim, loss, cost or expense whatsoever (including reasonable fees and
disbursements of counsel) from or relating to any such express or implied
liability.
18. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) WAIVER. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
(c) TERMINATION. All obligations hereunder may be terminated at the
discretion of either party's board of directors if (i) the closing conditions
specified in Sections 12 and 13 are not met by June 30, 1998, unless extended,
or (ii) any of the representations and warranties made herein have been
materially breached.
(d) AMENDMENT. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(e) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first class registered or certified mail, return receipt requested.
(f) HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Utah.
13
15
(i) BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(j) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(k) TIME. Time is of the essence.
(l) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(m) RESPONSIBILITY AND COSTS. All fees, expenses and out-of-pocket
costs and expenses, including, without limitation, fees and disbursements of
counsel, advisors and accountants, incurred by the parties hereto shall be borne
solely and entirely by the party that has incurred such costs and expenses.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
GALAXY VENTURES, INC.
By:
--------------------------------
Xxxxxxx X. Xxxxxx, President and
Secretary
--------------------------------
Xxxxxxx X. Xxxxxx, individually
XXXX MINIMALLY INVASIVE SPINE SURGERY, INC.
By: By:
------------------------------ ------------------------------
Secretary President
14
16
SHAREHOLDERS OF XXXX MINIMALLY
INVASIVE SPINE SURGERY, INC.
Xxxx X. Xxxx Family Limited Partnership N
By:
--------------------------------
Xxxx X. Xxxx, General Partner
15
