STOCK EXCHANGE AGREEMENT
This
STOCK EXCHANGE AGREEMENT (this "Agreement") is dated as of July 29, 2005, by
and
among Opticon Systems, Inc., a Nevada corporation ("Opticon"), Xxxx Xxxxxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx and FutureTech (each, a
"Stockholder," collectively, the "Stockholders"), and Hathaway Corporation,
a
Delaware Corporation ("Hathaway").
WHEREAS,
Opticon, the Stockholders and Hathaway have determined that it is in their
best
interest for the Stockholders to transfer all of the 105,000,000 issued and
outstanding shares of common stock of Opticon (the "Opticon Stock") to Hathaway
in exchange for common stock of Hathaway on the terms and conditions described
herein;
NOW,
THEREFORE, in consideration of the mutual covenants herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Exchange of Stock.
1.1.
Exchange of Stock. Subject
to the terms and conditions hereof, on the Closing Date the Stockholders shall
transfer 105,000,000 OptiCon Stock to Hathaway and Hathaway shall transfer
to
the Stockholders 40,000,000 newly issued shares of the common Stock of Hathaway
(the “Hathaway Stock”) in exchange for Opticon Stock; 9,600,000 of which shall
be restricted Common and 30,400,000 Preferred Series A with conversion rights
into Common Stock in full at 12th
month.
The number of shares was calculated based on the opening trading price of
Hathaway at $1.05 per share with the ratio of 1 (Hathaway) - 2.625 (OptiCon).
The number of shares of Opticon Stock owned by, and to be delivered to Hathaway
by, each Stockholder in the number of shares of Hathaway Stock to be received
by
each Stockholder shall be as specified in Schedule A, which is attached hereto
and incorporated herein by this reference. Each of the Stockholders shall
execute and deliver to Hathaway a Lockup Agreement in the form which is attached
hereto as Exhibit A.
1.2.
Executive Employment. All
Opticon executive employment contracts will be honored by Hathaway and the
Opticon executives will assume their duties with the same titles and
responsibilities in Hathaway or Opticon as they had in Opticon at Hathaway’s
option. All terms and conditions of the employment contracts will transfer
and
be in full force.
1.3.
Closing. The
closing of the transactions referred to in Section 1 hereof (the "Closing")
shall take place at 10 o’clock a.m. PDT on July 29, 2005, at the offices of
Opticon or at such other time and/or place as the parties may agree upon. Such
date is herein referred to as the "Closing Date."
2.
Representations of the Stockholders.
2.1.
Opticon Stock. Each
Stockholder represents and warrants that all of Opticon Stock has the been
duly
authorized and issued to the Stockholders, that no other Opticon Stock is issued
or outstanding, that no other equity securities of Opticon are outstanding,
and
that there are no outstanding options, warrants, or other contractual rights
pursuant to which any person has the right to purchase any shares of Opticon
stock or other Opticon securities. Each Stockholder represents and warrants
that
the shares of Opticon Stock shown as owned by such person on Schedule A are
owned by such Stockholder free and clear of all liens and/or encumbrances,
and
that such Stockholder has the authority and power to transfer good title to
such
Opticon Stock in accordance with this Agreement free and clear of all liens
and/or encumbrances.
2.2.
Corporate Status. Opticon
is duly organized, validly existing and in good standing under the laws of
the
State of Nevada and is licensed or qualified as a foreign corporation in all
states in which the nature of its businesses or the character or ownership
of
its properties makes such licensing or qualification necessary.
2.3.
Authorization and Validity of Agreement. Opticon
and the Stockholders have full power and authority (to execute and deliver
this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Opticon and, assuming the due execution of this Agreement by
Hathaway, is a valid and binding obligation of Opticon, enforceable against
Opticon in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization and similar laws
affecting
the enforcement of creditors' rights generally and to general equitable
principles.
2.4.
Consents and Approvals; No Violations. The
execution and delivery of this Agreement by Opticon and the Stockholders and
the
consummation by Opticon and the Stockholders of the transactions contemplated
herein and the other transactions contemplated hereby (a) will not violate
the
provisions of the Articles of Incorporation or Bylaws of Opticon, (b) will
not
violate any statute, rule, regulation, order or decree of any public body or
authority by which Opticon is bound or by which any of its properties or assets
are bound, (c) will not require any filing with, or permit, consent or approval
of, or the giving of any notice to, any United States governmental or regulatory
body, agency or authority on or prior to the Closing Date, and (d) will not
result in a violation or breach of, conflict with, constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, payment or acceleration) under, or result in the
creation of any encumbrance upon any of the properties or assets of Opticon
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, agreement, lease, franchise agreement
or
any other instrument or obligation to which Opticon is a party, or by which
they
or any of its properties or assets may be bound.
2.5.
Financial Statements. The
financial statements of Opticon furnished to Hathaway, consisting of
__________________________ ____________, (the “Financial Statements”) are
correct and fairly present the financial condition of Opticon as of these dates
and for the periods stated therein; such statements were prepared in accordance
with generally accepted accounting principles consistently applied, and no
material change has occurred in the matters disclosed therein. These Financial
Statements do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
2.6.
Undisclosed Liabilities. Opticon
has no material liabilities of any nature except to the extent reflected or
reserved against in its balance sheets included in the Financial Statements,
whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due.
2.7.
Interim Changes. Except
as
set forth in Schedule 2.7, since the dates of its balance sheet, there have
been
no (i) changes in the financial condition, assets, liabilities or business
of
Opticon, which in the aggregate, have been materially adverse; (ii) damages,
destruction or loss of or to the property of Opticon, payment of any dividend
or
other distribution in respect of the capital stock of Opticon or any direct
or
indirect redemption, purchase or other acquisition of any such stock; or (iii)
increases paid or agreed to in the compensation, retirement benefits or other
commitments to their employees.
2.8.
Title to Property. Opticon
has good and marketable title to all properties and assets, real and personal,
proprietary or otherwise, reflected in its balance sheets, and the properties
and assets of Opticon are subject to no mortgage, pledge, lien or encumbrance,
except as reflected in the financial statements of Opticon, with respect to
which no default exists.
2.9.
Litigation. There
is
no litigation or proceeding pending, or to the knowledge of Opticon or the
Stockholders,
threatened, against or relating to Opticon or its properties or business, except
litigation which is not expected to have any material adverse effect on Opticon.
Further, no officer, director or person who may be deemed to be an affiliate
of
Opticon is party to any material legal proceeding which could have an adverse
effect on Opticon (financial or otherwise), and none is party to any action
or
proceeding wherein any has an interest adverse to Opticon.
2.10.
Books and Records. From
the
date of this Agreement to the Closing, Stockholders will cause Opticon to (i)
give to Hathaway and its representatives full access during normal business
hours to all of Opticon offices, books, records, contracts and other corporate
documents and properties so that Hathaway may inspect and audit them; and (ii)
furnish such information concerning the properties and affairs of Opticon as
Hathaway may reasonably request.
2.11.
Tax Returns. Opticon
has filed all federal and state income or franchise tax returns that have been
required to be filed by it or has received currently effective extensions of
the
required filing dates.
2.12.
Confidentiality. Until
the
Closing (and continuously if there is no Closing), Opticon, Stockholders and
their representatives will keep confidential any information which they obtain
from Hathaway concerning its properties, assets and business. If the
transactions contemplated by this Agreement are not consummated by August 31,
2005, Opticon and Stockholders will return to Hathaway all written
matter
with
respect to Hathaway obtained by them in connection with the negotiation or
consummation of this Agreement.
2.13.
Environmental Matters. Opticon
and Stockholders have no knowledge of any assertion by any governmental agency
or other regulatory authority of any environmental lien, action or proceeding,
or of any cause for any such lien, action or proceeding related to the business
operations of Opticon or its predecessors. "Hazardous Materials" means any
oil
or petrochemical products, PCB's, asbestos, urea formaldehyde, flammable
explosives, radioactive materials, solid or hazardous wastes, chemicals, toxic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials" or "toxic substances" under any applicable
federal or state laws or regulations. "Hazardous Materials Regulations" means
any regulations governing the use, generation, handling, storage, treatment,
disposal or release of hazardous materials, including, without limitation,
the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
2.14.
Access to Information Regarding Hathaway. Opticon
and Stockholders acknowledge that Hathaway has delivered to them copies of
what
has been represented to be documentation containing all material information
respecting Hathaway and its present and contemplated business operations,
potential acquisitions, management and other factors, by personal delivery
to
them; that they have had a reasonable opportunity to review such documentation
and to discuss it, to the extent desired, with their legal counsel, directors
and executive officers; that they have had, to the extent desired, the
opportunity to ask questions of and receive responses from the management of
Hathaway with respect to such documentation; and that to the extent requested,
all questions raised have been answered to their complete satisfaction.
3.
Representations and Warranties of Hathaway. Hathaway
hereby represents and warrants to Stockholders that:
3.1.
Hathaway Common Stock. All
of
the common stock of Hathaway have been duly authorized, validly issued, fully
paid and are non-assessable. Upon issuance, Hathaway Stock shall be duly
authorized, validly issued, fully paid and non-assessable.
3.2.
Authorization and Validity of Agreement. Hathaway
has full power and authority (corporate or otherwise) to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Hathaway and, assuming the due execution of this Agreement by
each
of Stockholders, is a valid and binding obligation of Hathaway, enforceable
against Hathaway in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization and similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
3.3.
Consents and Approvals; No Violations. The
execution and delivery of this Agreement by Hathaway and the consummation by
Hathaway of the exchange of stock contemplated herein and the other transactions
contemplated hereby (a) will not violate the provisions of the Articles of
Incorporation or Bylaws of Hathaway, (b) will not violate any statute, rule,
regulation, order or decree of any public body or authority by which Hathaway
is
bound or by which any of its properties or assets are bound, (c) will not
require any filing with, or permit, consent or approval of, or the giving of
any
notice to, any United States governmental or regulatory body, agency or
authority on or prior to the Closing Date (as defined in Section 1.3), and
(d)
will not result in a violation or breach of, conflict with, constitute (with
or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, payment or acceleration) under, or result
in
the creation of any encumbrance upon any of the properties or assets of Hathaway
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, agreement, lease, franchise agreement
or
any other instrument or obligation to which Hathaway is a party, or by which
they or any of its properties or assets may be bound.
3.4.
Organization and Good Standing. Hathaway
is a corporation duly organized, validly existing and in good standing under
the
laws of Delaware and is qualified to do business as a foreign corporation in
each jurisdiction where the failure to be so qualified would have a material
adverse effect on Hathaway.
3.5.
Capitalization. Hathaway's
authorized capital stock consists of 100,000,000 shares of common stock, $.0001
par value per share, 20,000,000 of which are issued and outstanding and
50,000,000 shares of
preferred
stock, 0 of which are issued and outstanding as Series A Preferred Opticon
Stock. All of the issued and outstanding shares of Hathaway common stock and
preferred stock were duly authorized for issuance and are validly issued, fully
paid and non-assessable. There are no options, warrants, convertible securities,
any rights of first refusal, any preemptive rights or any other right to acquire
equity securities of Hathaway outstanding.
3.6.
Subsidiaries. Hathaway
does not, directly or indirectly, own any shares of any capital stock or other
equity
interest in, has not made any investment in, and does not control or have any
proprietary interest in, any corporation, partnership, joint venture or other
business association or entity.
3.7.
Securities Law Compliance. Hathaway
has filed all reports required to be filed by it under the
Securities
Act of 1933, as amended (the "Securities Act") and the Securities Exchange
Act
of 1934, as amended (the "Exchange Act"), including pursuant to Section 13(a)
or
15(d) thereof, for the three years preceding the date hereof (or such shorter
period as Hathaway was required by law to file such material) (the foregoing
materials, including the exhibits thereto, being collectively referred to herein
as the "SEC Documents "). The SEC Documents constitute all of the documents
and
reports that Hathaway was required to file with the Securities and Exchange
Commission (“SEC”) pursuant to the Exchange Act and the rules and regulations
promulgated thereunder by the SEC. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations promulgated thereunder and none
of
the SEC Documents contained an untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Hathaway included in the SEC
Documents comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with generally accepted accounting
principles in the United States ("U.S. GAAP") (except, in the case of unaudited
statements, as permitted by the applicable form under the Exchange Act) applied
on a consistent basis during the periods involved (except as may be indicated
in
the notes thereto) and fairly present the financial position of Hathaway as
of
the dates thereof and its statements of operations, Stockholders' equity and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal and recurring year-end audit adjustments which were and
are not expected to have a material adverse effect on Hathaway, its business,
financial condition or results of operations). Except as and to the extent
set
forth in the financial statements, Hathaway has no liability or obligation
of
any nature (whether accrued, absolute, contingent or otherwise and whether
required to be reflected on a balance sheet or not).
3.8.
Financial Statements.
3.8.1.
Included in the SEC Documents are the audited balance sheets of Hathaway as
of
____________and ________, and the related consolidated statements of operations
and Stockholders' deficit, and cash flows for the years then ended, together
with the unqualified report thereon of ______________________, Certified Public
Accountants, independent auditor (collectively, "Hathaway's Audited Financial
Statements") are (i) in accordance with the books and records of Hathaway,
(ii)
correct and complete, (iii) fairly present the financial position and results
of
operations of Hathaway as of the dates indicated, and (iv) prepared in
accordance with U.S. GAAP (except that (x) unaudited financial statements may
not be in accordance with U.S. GAAP because of the absence of footnotes normally
contained therein, and (y) interim (unaudited) financials are subject to normal
year-end audit adjustments that in the aggregate will not have a material
adverse effect on Hathaway, its business, financial condition or results of
operations).
3.8.2.
Events Subsequent to Financial Statements. Except as reflected in the Annual
Report on Form 10-KSB for the annual period ended December 31, 2004, since
December 31, 2003:
3.8.2.1.
Hathaway has not entered into any transaction or contract or conducted any
business other than seeking a business combination or other strategic
transaction;
3.8.2.2.
Hathaway has not failed to pay and discharge its current liabilities in the
ordinary course of business consistent with past practice;
3.8.2.3.
Hathaway has not incurred any indebtedness or liability or assumed any
obligations other than in the ordinary course of business;
3.8.2.4.
Hathaway has not waived or released any right of any material value;
3.8.2.5.
Hathaway has not paid any compensation or benefits to officers or directors
of
Hathaway other than in the ordinary course of business;
3.8.2.6.
Hathaway has not made or authorized any amendment in the Certificate of
Incorporation or Bylaws of Hathaway;
3.8.2.7.
there has been no material adverse change in the condition (financial or
otherwise) of the properties, assets, liabilities or business of Hathaway.
3.9.
Public Trading of Hathaway. Hathaway
has never been listed on any national stock exchange or national market system
in the United States or elsewhere, and its common stock is currently quoted
in
the Pink Sheets. Hathaway is, and has no reason to believe that it will not
in
the foreseeable future continue to be, in compliance with all listing and
maintenance requirements.
3.10.
Litigation. There
is
no suit, action, proceeding, investigation, claim or order pending or, to the
knowledge of Hathaway, threatened against Hathaway (or to the knowledge of
Hathaway, pending or threatened, against any of the officers or directors of
Hathaway with respect to their business activities on behalf of Hathaway),
or to
which Hathaway is otherwise a party, before any court, or before any
governmental department, commission, board, agency, or instrumentality; nor
to
the knowledge of Hathaway is there any reasonable basis for any such action,
proceeding or investigation.
3.11.
Governmental Consents. All
consents, approvals, orders, authorizations or registrations, qualifications,
designations, declarations or filings with any U.S. federal or state
governmental authority on the part of Hathaway required in connection with
the
consummation of the transactions contemplated herein shall have been obtained
prior to and be effective as of the Closing.
3.12.
Third Party Consents. All
third
party consents, approvals, orders or authorizations required to be obtained
by
Hathaway in connection with the consummation of the transactions contemplated
herein have been obtained.
3.13.
Books and Records. Hathaway
has delivered to Opticon complete copies of all corporate minutes and financial
records of Hathaway from its inception through the Closing Date.
3.14.
Disclosure. The
representations and warranties and statements of fact made by Hathaway in this
Agreement are accurate, correct and complete in all material respects and do
not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained herein
not false or misleading.
3.15.
Investment Representations. Hathaway
hereby represents to each Stockholder that:
3.15.1.
Hathaway has such knowledge and experience in financial and business matters
so
as to be capable of evaluating and understanding, and has evaluated and
understood, the merits and risks of an investment in Opticon and the acquisition
of the Opticon Stock, and Hathaway has been given the opportunity to (i) obtain
information and to examine all documents relating to Opticon and Opticon's
business, to (ii) ask questions of, and to receive answers from, Opticon
concerning Opticon, Opticon's business and the terms and conditions of an
investment in Opticon, and to (iii) obtain any additional information, to the
extent Opticon possesses such information or could acquire such information
without unreasonable effort or expense, necessary to verify the accuracy of
any
information previously furnished. All such questions have been answered to
Hathaway's full satisfaction, and all information and documents, records and
books pertaining to an investment in Opticon which Hathaway has requested have
been made available to Hathaway.
3.15.2.
Hathaway is able to bear the substantial economic risks of its investment in
Opticon and the purchase of the Opticon Stock in that, among other factors,
Hathaway can afford to hold the Opticon Stock for an indefinite period and
can
afford a complete loss of Hathaway's investment in Opticon.
3.15.3.
No material adverse change in Hathaway's financial condition has taken place
during the past twelve months, and Hathaway will have sufficient liquidity
with
respect to Hathaway's net worth for an adequate period of time to provide for
Hathaway's needs and contingencies.
3.15.4.
Hathaway is relying solely on Hathaway's own decision or the advice of
Hathaway's own adviser(s) with respect to an investment in Opticon and the
acquisition of the Opticon Stock, and has neither received nor relied on any
communication from Opticon, Opticon's officers or Opticon's agents regarding
any
legal, investment or tax advice relating to an investment in Opticon and the
acquisition of the Opticon Stock.
3.15.5.
The Opticon Stock is being acquired by Hathaway for Hathaway's own account,
for
investment and not with a view to, or in connection with, any public offering
or
distribution of the same and without any present intention to sell the same
at
any particular event or circumstances. Hathaway has no agreement or other
arrangement with any person to sell, transfer or pledge any part of the Opticon
Stock which would guarantee Hathaway any profit or provide any guarantee to
Hathaway against any loss with respect to the Opticon Stock.
3.15.6.
Hathaway understands that the Opticon Stock has not been registered under the
United States Securities Act of 1933, as amended (the "Act") or applicable
state
or other securities laws, and the Opticon Stock is being offered and sold under
an exemption from registration provided by such laws and the rules and
regulations thereunder; further, Hathaway understands that Opticon is under
no
obligation to register the Opticon Stock or to comply with any applicable
exemption under any applicable securities laws with respect to the Opticon
Stock. Hathaway must bear the economic risks of an investment in the Opticon
Stock for an indefinite period of time because it is not anticipated that there
will be any market for the Opticon Stock and because the Opticon Stock cannot
be
resold unless subsequently registered under applicable securities laws or unless
an exemption from such registration is available. Hathaway also understands
that
the exemption provided by Rule 144 under the Act may not be available because
of
the conditions and limitations of such Rule, and that in the absence of the
availability of such Rule, any disposition by Hathaway of any portion of the
Opticon Stock may require compliance with some other exemption under the Act.
4.
Stockholder Investment Representations. Stockholders
each hereby represent to Hathaway, jointly but not severally, that:
4.1.
Stockholder
has such knowledge and experience in financial and business matters so as to
be
capable of evaluating and understanding, and has evaluated and understood,
the
merits and risks of an investment in Hathaway and the acquisition of securities
of Hathaway, and Stockholder has been given the opportunity to (i) obtain
information and to examine all documents relating to Hathaway and Hathaway's
business, to (ii) ask questions of, and to receive answers from, Hathaway
concerning Hathaway, Hathaway's business and the terms and conditions of an
investment in Hathaway, and to (iii) obtain any additional information, to
the
extent Hathaway possesses such information or could acquire such information
without unreasonable effort or expense, necessary to verify the accuracy of
any
information previously furnished. All such questions have been answered to
Stockholder's full satisfaction, and all information and documents, records
and
books pertaining to an investment in Hathaway which Stockholder has requested
have been made available to Stockholder.
4.2.
Stockholder
is able to bear the substantial economic risks of Stockholder's investment
in
the Hathaway Stock in that, among other factors, Stockholder can afford to
hold
the Hathaway Stock for an indefinite period and can afford a complete loss
of
Stockholder's investment in Hathaway.
4.3.
Stockholder
is relying solely on Stockholder's own decision or the advice of Stockholder's
own advisor(s) with respect to an investment in Hathaway and the acquisition
of
securities of Hathaway, and has neither received nor relied on any communication
from Hathaway, Hathaway's officers or Hathaway's agents regarding any legal,
investment or tax advice relating to an investment in Hathaway and the
acquisition of the Hathaway Stock.
4.4.
The
Hathaway Stock is acquired by Stockholder for Stockholder's own account, for
investment and not with a view to, or in connection with, any public offering
or
distribution of the same and without any present intention to sell the same
at
any particular event or circumstances. Stockholder has no agreement or other
arrangement with any person to sell, transfer or pledge any part of the Hathaway
Stock which would guarantee Stockholder any profit or provide any guarantee
to
Stockholder against any loss with respect to the Hathaway Stock.
4.5.
Stockholder
understands that no federal, state or other governmental agency of the United
States or any other territory or nation has passed on or made any recommendation
or endorsement of an investment in the Hathaway Stock.
4.7.
Stockholder
understands that the Hathaway Stock has not been registered under the United
States Securities Act of 1933, as amended (the "Act") or applicable state or
other securities laws, and the Hathaway Stock is offered and sold under an
exemption from registration provided by such laws and the rules and regulations
thereunder; further, Stockholder understands that Hathaway is under no
obligation to the Hathaway Stock or to comply with any applicable exemption
under any applicable securities laws with respect to the Hathaway Stock .
Stockholder must bear the economic risks of an investment in the Hathaway Stock
for an indefinite period of time because it is not anticipated that there will
be any market for the Hathaway Stock and because the Hathaway Stock cannot
be
resold unless subsequently registered under applicable securities laws or unless
an exemption from such registration is available. Stockholder also understands
that the exemption provided by Rule 144 under the Act may not be available
because of the conditions and limitations of such Rule, and that in the absence
of the availability of such Rule, any disposition by Stockholder of any portion
of the Hathaway Stock may require compliance with some other exemption under
the
Act.
4.8.
Stockholder
has been informed that legends referring to the restrictions indicated herein
are placed on the certificate(s) evidencing securities of Hathaway to be held
by
Stockholder.
4.9.
Stockholder
agrees that the foregoing representations and warranties will survive the sale
of securities of Hathaway to Stockholder, as well as any investigation made
by
any party relying on same.
5.
Conditions to Obligations.
5.1.
Hathaway. The
obligations of Hathaway to deliver the Hathaway Stock on the Closing Date is
conditioned upon the satisfaction or waiver of the following conditions:
5.1.1.
Truth of Representations and Warranties. The representations and warranties
of
Opticon and
Stockholders
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date with the same effect as though such
representations and warranties have been made on and as of such date (except
to
the extent that any such representation and warranty is stated in this Agreement
to be made as of a specific date, in which case such representation and warranty
shall be true and correct as of such specified date).
5.1.2.
Performance of Agreements. All of the agreements of Opticon and the Stockholders
to be performed at or prior to the Closing Date pursuant to the terms hereof
shall have been duly performed in all material respects.
5.1.3.
No
Injunction. No court or other government body or public authority shall have
issued an order which shall then be in effect restraining or prohibiting the
completion of the transactions contemplated hereby.
5.1.4.
No
Litigation. There shall not be any action, suit or proceeding pending or
threatened that seeks to (i) make the consummation of the transactions
contemplated hereby illegal or otherwise restrict or prohibit consummation
thereof or (ii) require the divestiture by Hathaway or any of its subsidiaries
or Affiliates of shares of stock or of any business, assets or property of
any
of its subsidiaries or Affiliates, or impose any material limitation on the
ability of any of them to conduct their business or to own or exercise control
of such assets, properties or stock and which, in either case, in the
reasonable, good faith determination of Hathaway has a significant likelihood
of
having a material adverse effect on Hathaway.
5.2.
Stockholders
and Opticon. The delivery of the Opticon Stock to Hathaway by Stockholders
on
the Closing Date is conditioned upon the satisfaction or waiver, at or prior
to
the Closing of the following conditions:
5.2.1.
Truth of Representations and Warranties. The representations and warranties
of
Hathaway contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date with the same effect as though such
representations and warranties have been made on and as of such date (except
to
the extent that any such representation and warranty is stated in this Agreement
to be made as of a specific date, in which case such representation and warranty
shall be true and correct as of such specified date).
5.2.2.
Performance of Agreements. All of the agreements of Hathaway to be performed
at
or prior to the Closing Date pursuant to the terms hereof shall have been duly
performed in all material respects.
5.2.3.
No
Injunction. No court or other government body or public authority shall have
issued an order which shall then be in effect restraining or prohibiting the
completion of the transactions contemplated hereby.
5.2.4.
No
Litigation. There shall not be any action, suit or proceeding pending or
threatened that seeks to (i) make the consummation of the transactions
contemplated hereby illegal or otherwise restrict or prohibit consummation
thereof or (ii) require the divestiture by Hathaway or any of its subsidiaries
or Affiliates of shares of stock or of any business, assets or property of
any
of its subsidiaries or Affiliates, or impose any material limitation on the
ability of any of them to conduct their business or to own or exercise control
of such assets, properties or stock and which, in either case, in the
reasonable, good faith determination of Hathaway has a significant likelihood
of
having a material adverse effect on Hathaway.
6.
Miscellaneous.
6.1.
Expenses. Except
as
otherwise provided in this Agreement, each party to this Agreement will bear
its
respective fees and expenses incurred in connection with the preparation,
negotiation, execution and performance of this Agreement and the transactions
contemplated herein. If this Agreement is terminated, the obligation of each
party to pay its own fees and expenses will be subject to any rights of such
party arising from a breach of this Agreement by another party.
6.2.
Waiver; Remedies Cumulative. The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither any failure nor any delay by any party in exercising any
right, power or privilege under this Agreement or any of the documents referred
to in this Agreement will operate as a waiver of such right, power or privilege,
and no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege or
the
exercise of any other right, power or privilege. To the maximum extent permitted
by applicable law, (a) no claim or right arising out of this Agreement or any
of
the documents referred to in this Agreement can be discharged by one party,
in
whole or in part, by a waiver or renunciation of the claim or right unless
in
writing signed by the other party; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of that party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
6.3.
Entire Agreement and Modification. This
Agreement supersedes all prior agreements, whether written or oral, between
the
parties with respect to its subject matter, and constitutes a complete and
exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended, supplemented,
or otherwise modified except by a written agreement executed by the party to
be
charged with the amendment.
6.4.
Assignments, Successors and No Third-Party Rights.
No
party may assign any of its rights or delegate any of its obligations under
this
Agreement without the prior written consent of the other parties. Subject to
the
preceding sentence, this Agreement will apply to, be binding in all respects
upon and inure to the benefit of the successors and permitted assigns of the
parties. Nothing expressed or referred to in this Agreement will be construed
to
give any Person other than the parties to this Agreement any legal or equitable
right, remedy or claim under or with respect to this Agreement or any provision
of this Agreement, except such rights as shall inure to a successor or permitted
assignee pursuant to this Section.
6.5.
Severability. If
any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable.
6.6.
Construction. The
headings of Articles and Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references
to
"Articles" and "Sections" refer to the corresponding Articles and Sections
of
this Agreement.
6.7.
Time of Essence. With
regard to all dates and time periods set forth or referred to in this Agreement,
time is of the essence.
6.8.
Notices. All
notices, consents, waivers and other communications required or permitted by
this Agreement shall be in writing and shall be deemed given to a party when
(a)
delivered to the appropriate address by hand or by nationally recognized
overnight courier service (costs prepaid); (b) sent by facsimile or e-mail
with
confirmation of transmission by the transmitting equipment, so long as such
facsimile or e-mail is followed by a copy sent by mail; or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested,
in each case to the following addresses, facsimile numbers or e-mail addresses
and marked to the attention of the person (by name or title) designated below
(or to such other address, facsimile number, e-mail address or person as a
party
may designate by notice to the other parties):
To
Hathaway: To Opticon
Hathaway
Corporation Opticon Systems, Inc
000
Xxxxx
Xxxxxx Xxxxx, Xxxxx 000 00000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xx.
Xxxxxxxxxx, XX 00000 Xxxxxx Xxxxx 00000
Attention:Chief
Executive Officer Attention: Xxxx Xxxxxxxx Xxxxxx,
Facsimile:
(000) 000-0000 CEO/President
Facsimile:
(____) __________
To
Stockholders:
At
the
addresses shown on Schedule A .
9.
Governing Law; Consent to Jurisdiction. The
interpretation and construction of this Agreement, and all matters relating
hereto, shall be governed by the laws of the State of California applicable
to
contracts made and to be performed entirely within the State of California.
Any
proceeding, action, litigation or claim (a "Proceeding") arising out of or
relating to this Agreement or any of the transactions contemplated herein may
be
brought in the courts of the State of California, County of Los Angeles, or,
if
it has or can acquire jurisdiction, in the United States District Court for
the
Central District of California, and each of the parties irrevocably submits
to
the exclusive jurisdiction of each such court in any such Proceeding, waives
any
objection it may now or hereafter have to venue or to convenience of forum,
agrees that all claims in respect of the Proceeding shall be heard and
determined only in any such court and agrees not to bring any Proceeding arising
out of or relating to this Agreement or any of the transactions contemplated
herein in any other court. The parties agree that any of them may file a copy
of
this paragraph with any court as written evidence of the knowing, voluntary
and
bargained agreement between the parties irrevocably to waive any objections
to
venue or to convenience of forum. Each party hereto hereby consents to process
being served in any such action or proceeding by the mailing of a copy thereof
to the address set forth opposite its name below and agrees that such service
upon receipt shall constitute good and sufficient service of process or notice
thereof. Nothing in this paragraph shall affect or eliminate any right to serve
process in any other manner permitted by law.
6.10.
Waiver of Jury Trial. The
parties hereby waive any right to trial by jury in any proceeding arising out
of
or relating to this agreement or any of the contemplated transactions, whether
now existing or hereafter arising, and whether sounding in contract, tort or
otherwise. The parties agree that any of them may file a copy of this paragraph
with any court as written evidence of the knowing, voluntary and bargained-for
agreement among the parties irrevocably to waive trial by jury and that any
proceeding whatsoever between them relating to this agreement or any of the
contemplated transactions shall instead be tried in a court of competent
jurisdiction by a judge sitting without a jury.
6.11.
Execution of Agreement. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement. The exchange
of copies of this Agreement and of signature pages by facsimile transmission
shall constitute effective execution and delivery of this Agreement as to the
parties and may be used in lieu of the original Agreement for all purposes.
Signatures of the parties transmitted by facsimile shall be deemed to be their
original signatures for all purposes.
6.12.
Indemnification. Each
party shall indemnify, defend, and hold harmless the other party against and
in
respect of any and all liability, claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including
interest, penalties, and reasonable professional and attorney's fees, including
those arising from settlement negotiations, that such party shall incur or
suffer, which arise, result from, or relate to any breach of, or failure by
the
other party to perform, any of such party's representations, warranties,
covenants, or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by such party under
this Agreement.
IN
WITNESS WHEREOF, each of the parties have caused this Stock Exchange Agreement
to be executed as of the day and year first above written.
|
Hathaway
Corporation,
|
Opticon
Systems Inc.
|
|
a
Delaware Corporation,
|
a
Nevada corporation
|
|
By:
/s/ Xxxxx Xxxxxx
|
By:
/s/ Xxxx Xxxxxxxx Xxxxxx
|
|
Title:
Xxx Xxxxxx, CEO
|
Title:
CEO
|
Stockholders:
/s/
Xxxx
Xxxxxxxx Xxxxxx
/s/
Xxxx
Xxxx
/s/
Xxxxxxx Xxxxxx
/s/
Xxxxxxx Xxxxxx
FutureTech
by /s/ Xxxxx Xxxxxx, CEO
SCHEDULE
A
STOCKHOLDERS
AND STOCKHOLDINGS
Stockholder
# Shares of # Shares of
_______________________
Opticon
Stock Hathaway Stock
Xxxx
Xxxxxxxx Xxxxxx 5,250,000 2,400,000 Restricted Common
Xxxx
Xxxx 5,250,000 2,400,000 Restricted Common
Xxxxxxx
Xxxxxx 5,250,000 2,400,000 Restricted Common
Xxxxxxx
Xxxxxx 5,250,000 2,400,000 Restricted Common
Futuretech
84,000,000 30,400,000 Series A Preferred
