THIS STOCK PURCHASE AGREEMENT (the
“Agreement”) shall be effective as of the 17th day of November 17th, 2003, by
and between those persons listed on Exhibit “A” (each a “Seller” and
collectively “Sellers”), and Optical Concepts of America., a Florida
corporation, having an office at 0000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx
00000 (“Buyer”).
WHEREAS, Sellers are, in the
aggregate, the owner all of the issued and outstanding capital stock of Intelligent
Business Systems Group, Inc., (the “Company” or “IBIS”) , as further
described in Section 2.2 herein;
WHEREAS, pursuant to the terms and
conditions set forth herein, Buyer desires to purchase from Sellers, and Sellers desire to
sell to Buyer, all of the issued and outstanding capital stock of the Company.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1
Sale and Purchase of Company Common Shares. Upon the terms and subject to the conditions
of this Agreement and on the basis of the representations, warranties and covenants
contained herein, at the Closing, each Seller shall sell to Buyer the number of shares
(the “Company Common Shares”) of the Company common stock, par value .001 per
share, (the “Company Common Stock” ) set forth next to such Seller’s name
on Exhibit “A” annexed hereto, which Company Common Shares in the aggregate
represent all of the issued and outstanding shares of capital stock of the Company, free
and clear of all Liens, and Buyer shall purchase all such Company Shares.
1.2
Payment of Purchase Price for Company Common Shares. Subject to the terms and conditions
of this Agreement, and in reliance upon the representations and warranties and covenants
contained herein, at the Closing, in consideration for the Company Shares, Buyer shall
issue to Sellers such number of shares (the “Buyer Common Shares”) of
Buyer’s common stock, $0.001 par value per share (the “Buyer Common Stock”)
as set forth on Exhibit “A”, which Buyer Common Shares shall be allocated among
each Seller as set forth on Exhibit “A” annexed hereto. The total of the
Buyer’s Common Shares issued to the Sellers at the Closing Date will be Fifteen
Million (15,000,000) Shares. Although the officers and directors of the Company shall
immediately take over the day to day operations of the Buyer, the 15,000,000 shares the
Buyer’s stock and the stock of IBIS tendered by the shareholders of the Company shall
remain in escrow until the Release Date. The Release Date shall be defined as the later of
:
1. The
Company filing with the SEC the required Form 8k, including the consolidated
audit of the Company and Optical according to US GAAP.
2. The
Company filing two consecutive Forms 10Qs, as required by the Securites Acts of
the US.
3.
Ninety (90) days after the listing of Optical’s common stock on the Frankfurt Stock
Exchange.
Upon
the Release Date, the exchange of shares shall be consummated and the escrow shall
terminate. Notwithstanding the foregoing, the Release Date may be accelerated by the
mutual consent of the parties hereto.
1.3
Closing. The closing (the “Closing”) shall take place at the offices of Buyer at
10:00 a.m. local time, on a date, not more than ten (10) days after all conditions to
Closing have been satisfied or waived. The Closing, and all transactions to occur at the
Closing, shall be deemed to have taken place at, and shall be effective as of, the close
of business on the “Closing Date”.
ARTICLE II
Each
Seller, severally, makes the following representations and warranties to Buyer as of the
date hereof and as of the Closing Date, unless a different date is specifically provided
herein.
2.1
Organization. The Company is a corporation duly organized, validly existing and in good
standing under the laws of Florida with full corporate power and authority to carry on its
business as it is now being conducted and proposed to be conducted, and to own, and
operate its business and assets. The Company is duly qualified, licensed or admitted to do
business and in good standing in the jurisdictions in which the conduct of its business,
the ownership, operation of its properties and assets, or the transactions contemplated by
this Agreement, require it to be so qualified, licensed or admitted. Included in the
Company’s. Schedules are complete and correct copies of the articles of
incorporation, and bylaws of the Company as in effect on the date hereof. The execution
and delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of the Company’s articles of
incorporation or bylaws. The Company has taken all actions required by law, its articles
of incorporation, or otherwise to authorize the execution and delivery of this Agreement.
The Company has full power, authority, and legal right and has taken all action required
by law, its articles of incorporation, and otherwise to consummate the transactions herein
contemplated.
2.2
Subsidiaries. Each Subsidiary, if any, is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and has full
corporate power and authority to carry on its business as it is now being conducted and to
own, operate and lease its businesses and assets. Each Subsidiary is duly qualified,
licensed or admitted to do business and is in good standing in those jurisdictions in
which the ownership, operation of such Subsidiary’s businesses and assets, the
conduct or nature of its business, or the consummation of the transactions contemplated
herein makes such qualification, licensing or admission necessary. All of the outstanding
shares of capital stock of each Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable, and are owned, beneficially and of record, by the
Company or a Subsidiary wholly owned by the Company free and clear of all Liens and there
are no outstanding Options with respect to any Subsidiary.
2.3
Capitalization. The total authorized capital stock of the Company consists of 100,000
shares of common stock, par value .001 per share, of which 100,000 shares are issued and
outstanding,.
2.4
Options and Rights. There are no outstanding subscriptions, options, warrants, rights,
securities, contracts, commitments, understandings or arrangements under which the Company
is bound or obligated to issue any additional shares of its capital stock or rights to
purchase shares of its capital stock (collectively, “Options”). There are no
agreements, arrangements or understandings between any Seller, the Company and any other
Person regarding the Company Shares (or the transfer, disposition, holding or voting
thereof).
2.5
Financial Statements. The unaudited balance sheets as of December 31, 2002 and related
statements of profit and loss for the year ended December 31, 2002 (the “Financial
Statements”) of the Company fairly present the consolidated financial position of
such Subsidiaries as at the dates and for the periods indicated.The books and records,
financial and otherwise, of the Company are in all material respects complete and correct
and have been maintained in accordance with good business and accounting practices.
It
is understood that within sixty(60) days from the date of Closing, the Company will
provide the Buyer with audited financial statement according to US General Accounting
Procedures, as required by the regualtions issued by the Securities and Exhange
Commission, and shall file the applicable Form 8k as required by such regulations.
2.6
Absence of Changes. Since December 31, 2002, the Company has conducted its business only
in the Ordinary Course of Business and there has not been: (a) any Material Adverse
Change; (b) any material damage, destruction or loss, whether covered by insurance or not,
with regard to the Company’s properties and business; (c) any amendment or change in
the Company’s authorized or issued capital stock, or Charter Documents or bylaws; (d)
any declaration, setting aside or payment of any dividend or distribution (whether in
cash, stock or property) in respect of, the capital stock of the Company, any purchase,
retirement, redemption or other acquisition of, any grant of any stock option, warrant or
other right to purchase shares of, or the grant of any registration rights with respect
to, the capital stock of the Company; (e) any cancellation of, or agreement to cancel any
indebtedness or obligation owing to the Company; (f) any amendment, modification or
termination of any existing Permits or Contracts, or entering into any new Contract or
plan relating to any salary, bonus, insurance, pension, health or other employee welfare
or benefit plan for or with any directors, officers, employees or consultants of the
Company; (g) any entry into any material Contract by the Company not in the Ordinary
Course of Business, including, without limitation, relating to any borrowing, capital
expenditure or the sale or purchase of any property, rights, or assets or any options or
similar agreements with respect to the foregoing; (h) any disposition by the Company of
any material asset; (i) any adverse change in any Contract or relationship with any
customer or supplier, the sales patterns, pricing policies, accounts receivable or
accounts payable relating to the Company; (j) any write-down of the value of any inventory
of the Company, or write-off, as uncollectible, of any notes, trade accounts or other
receivables; or (k) any change by the Company in accounting methods or principles.
2.7
Consents; Contracts. No consent of any party to any Contract or from any Authority is
required in connection with the execution, delivery or performance of this Agreement, or
the consummation of the transactions contemplated hereby, except for such consents that
are obtained, in form and substance reasonably acceptable to Buyer, and delivered to Buyer
at the Closing. Each material Contract to which the Company is a party is in full force
and effect and is valid and enforceable in accordance with its terms. The Company has
performed in all material respects all obligations required to be performed by it and (i)
is not in default in any respect under or in breach of, and (ii) is not in receipt of any
claim of default or breach under any material Contract. No event has occurred which with
the passage of time or the giving of notice or both would result in a default, breach or
event of non-compliance under any material Contract to which the Company is subject
(including without limitation all performance bonds, warranty obligations or otherwise).
The Company does not have any present expectation or intention of not fully performing all
such obligations. Set forth in the Company Schedules is a description of every contract,
agreement, or arrangement between the Company and any predecessor and any person who was
at the time of such contract, agreement, or arrangement an officer, director, or person
owning of record, or known by the Company to own beneficially, 5% or more of the issued
and outstanding common stock of the Company, and which is to be performed in whole or in
part after the date hereof or which was entered into not more than three years prior to
the date hereof. Except as disclosed in the Company Schedules or otherwise disclosed
herein, no officer, director, or 5% shareholder of the Company has, or has had since
inception of the Company any known interest, direct or indirect, in any transaction with
the Company which was material to the business of the Company. There are no commitments by
the Company, whether written or oral, to lend any funds, or to borrow any money from, or
enter into any other transaction with, any such affiliated person.
2.8
Litigation. There is no claim pending threatened against, relating to or affecting the
Company or any of the assets or businesses of the Company nor is there any Order
outstanding against the Company or any of the assets or properties of the Company.
2.9
Compliance with Regulations and Orders; Permits; Affiliations. The Company is presently
complying with all applicable Regulations and Orders of Authorities in respect of its
operations, businesses, equipment, practices, real property, plants, structures and other
properties, and all other aspects of its business and operations. The Company has all
permits, licenses, provider numbers, orders, franchises, registrations and approvals
(collectively, “Permits”) required for the Company to conduct its business as
presently conducted. Each such Permit is valid and in full force and effect and there is
no basis for believing that such Permit will not be renewable upon expiration.
2.10
No Violation; Consents and Approvals. The execution and delivery by any Seller of this
Agreement, the Ancillary Documents and the fulfillment of and compliance with the
respective terms hereof and thereof do not and will not, (a) conflict with or result in a
breach of the terms, conditions or provisions of, (b) constitute a default or event of
default under (with due notice, lapse of time or both), (c) result in the creation of any
Lien upon the capital stock or assets of the Company pursuant to, (d) give any third party
the right to accelerate any obligation under, (e) result in a violation of, or (f) require
any authorization, consent, approval, exemption or other action by or notice to any
Authority or other third party (including, without limitation, any creditor, customer or
supplier) pursuant to, the Charter Documents of the Company or any Regulation, Order or
Contract to which the Company is subject.The board of directors of the Company has
authorized the execution and delivery of this Agreement by the Comapny, and has approved
this Agreement and the transactions contemplated hereby, and will recommend to the
Company’s Shareholders that the Exchange be accepted by them.
2.11
Disclosure. Neither this Agreement nor any of the exhibits, attachments, written
statements, documents, certificates or other items prepared by or at the instructions of
Sellers, for or supplied to Buyer by or on behalf of Sellers or the Company with respect
to the transactions contemplated hereby contains any untrue statement of a material fact
or omits a material fact necessary to make each statement contained herein or therein not
misleading.
ARTICLE III
Each
Seller, individually, and not jointly and severally, makes the following representations
and warranties to Buyer as of the date hereof and as of the Closing Date, unless a
different date is specifically provided herein.
3.1
Authorization. Such Seller that is a natural person has full legal right, power and
capacity to enter into this Agreement and all other agreements, documents, instruments and
certificates contemplated herein or related hereto (the “Ancillary Documents”)
and perform his or her obligations hereunder and thereunder. Such Seller that is not a
natural person is duly organized, validly existing, and in good standing under the laws of
its jurisdiction of organization and has all requisite power and authority to execute and
deliver this Agreement and the Ancillary Documents and perform its obligations hereunder
and thereunder. Upon execution and delivery of this Agreement and the Ancillary Documents
by the parties hereto and thereto, this Agreement and each of the Ancillary Documents
shall constitute the legal, valid and binding obligation of such Seller, enforceable
against him, her or it in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditor rights generally and by general equitable
principles.
3.2
Title. Such Seller (a) is the sole record and beneficial owner of the Company Common
Shares set forth next to such Seller on Exhibit “A” annexed hereto, free and
clear of all Liens, save as disclosed in this Agreement and (b) has sole managerial and
dispositive authority with respect to such Company Common Shares. All proxies granted with
respect to such Seller’s Company Common Shares have been validly revoked. Upon
delivery to such Seller by Buyer of the Purchase Price at the Closing, such Seller will
convey, and Buyer will own and hold, good and marketable title to the Company Common
Shares, free and clear of any and all Liens or contractual restrictions or limitations
whatsoever.
3.3
Authorization. Such Seller has complied with all applicable Regulations and Orders in
connection with the execution, delivery and performance of this Agreement, the Ancillary
Documents and the transactions contemplated hereby and thereby. Such Seller is not
required to submit any notice, report, or other filing with any governmental authority in
connection with such Seller’s execution or delivery of this Agreement, the Ancillary
Documents or the consummation of the transactions contemplated hereby and thereby. No
authorization, consent, approval, exemption or notice is required to be obtained by such
Seller in connection with the execution, delivery, and performance of this Agreement, the
Ancillary Documents and the transactions contemplated hereby and thereby.
3.4
Brokerage. Such Seller has not employed any broker, finder, advisor, consultant or other
intermediary in connection with this Agreement or the transactions contemplated by this
Agreement who is or might be entitled to any fee, commission or other compensation from
the Company or from Buyer or its Affiliates, upon or as a result of the execution of this
Agreement or the consummation of the transactions contemplated hereby.
3.5
Purchase Entirely for Own Account. The Buyer’s Common Shares to be issued to such
Seller in accordance with this Agreement will be acquired for investment for such
Seller’s own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that such Seller has no present intention of
selling, granting any participation in, or otherwise distributing the same.
3.6
Disclosure of Information. Such Seller believes he, she or it has received all the
information such Seller considers necessary or appropriate for deciding whether to
purchase the Buyer’s Common Shares. Such Seller further represents that he, she or it
has had an opportunity to ask questions of and receive answers from Buyer regarding the
terms and conditions of the transactions contemplated by this Agreement.
3.7
Restricted Securities. Such Seller understands that the Buyer Common Shares constitutes
“restricted securities” under the federal securities laws inasmuch as they are
being acquired from Buyer in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may not be resold without
registration under the Securities Act of 1933, as amended (the “Act”), except in
certain limited circumstances. Such Seller understands that the certificates evidencing
the Buyer Common Shares shall bear an appropriate restrictive legend. With respect to
Buyer Common Shares issued in reliance on the exemption from registration under Regulation
S promulgated under the Act, Buyer shall refuse to register any transfer of the Buyer
Common Shares not made in accordance with the provisions of Regulation S, pursuant to
registration under the Act, or pursuant to an available exemption from registration;
unless foreign law prevents Buyer from refusing to register securities transfers, which
Buyer shall implement other reasonable procedures to prevent any transfer not made in
accordance with the provisions of Regulation S.
ARTICLE IV
Buyer
represents and warrants to each Seller as of the date hereof and as of the Closing Date,
unless a different date is specifically provided herein as follows:
4.1
Organization. Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida with full corporate power and authority to carry on
its business as it is now being conducted and to own, operate and lease its properties and
assets.
4.2
Authorization. Buyer has full corporate power and authority to enter into this Agreement
and the Ancillary Documents to which it is a party and to carry out the transactions
contemplated hereby and thereby. The Board of Directors of Buyer has duly authorized the
execution, delivery and performance of this Agreement, the Ancillary Documents to which it
is a party and the transactions contemplated hereby and thereby, and no other corporate
proceedings on its part are necessary to authorize this Agreement, such Ancillary
Documents and the transactions contemplated hereby and thereby. Upon execution and
delivery of this Agreement and the Ancillary Documents by the parties hereto and thereto,
this Agreement and the Ancillary Documents to which Buyer is a party shall constitute the
legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with
their respective terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of creditors
rights generally and by general equitable principles.
4.3
No Violation. The execution, delivery and performance by Buyer of this Agreement and the
Ancillary Documents to which it is a party, and the fulfillment of and compliance with the
respective terms hereof and thereof by Buyer, do not and will not (a) conflict with or
result in a material breach of the terms, conditions or provisions of, (b) result in a
violation of, or (c) require any authorization, consent, approval, exemption or other
action by or notice to any Authority pursuant to, the certificate of incorporation or
by-laws of Buyer, or any Regulation to which Buyer is subject, or any material Contract or
Order to which Buyer or its properties are subject. Buyer will comply with all applicable
Regulations and Orders in connection with its execution, delivery and performance of this
Agreement and the transactions contemplated hereby. Included in the Buyer Schedules are
complete and correct copies of the certificate of incorporation and bylaws of the Buyer as
in effect on the date hereof. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, violate any provision
of the Buyer’s certificate of incorporation or bylaws. Buyer has taken all action
required by law, its certificate of incorporation, its bylaws, or otherwise to authorize
the execution and delivery of this Agreement, and Buyer has full power, authority, and
legal right and has taken all action required by law, its certificate of incorporation,
bylaws, or otherwise to consummate the transactions herein contemplated.
4.4
Governmental Authorities. Buyer has complied in all material respects with all applicable
Regulations in connection with its execution, delivery and performance of this Agreement,
the Ancillary Documents to which it is a party and the transactions contemplated hereby
and thereby. Buyer is not required to submit any notice, report, or other filing with any
governmental authority in connection with its execution or delivery of this Agreement, the
Ancillary Documents to which it is a party or the consummation of the transactions
contemplated hereby and thereby. No authorization, consent, approval, exemption or notice
is required to be obtained by Buyer in connection with the execution, delivery, and
performance of this Agreement, the Ancillary Documents to which it is a party and the
transactions contemplated hereby and thereby.
4.5
Brokerage. Buyer has not employed any broker, finder, advisor, consultant or other
intermediary in connection with this Agreement or the transactions contemplated by this
Agreement who is or might be entitled to any fee, commission or other compensation from
Buyer, upon or as a result of the execution of this Agreement or the consummation of the
transactions contemplated hereby. Buyer shall be solely responsible for any and all fees,
commissions or other compensation to any such broker employed by Buyer.
4.6
Capitalization. The total authorized capital stock of Buyer consists of 100,000,000 shares
of common stock, par value $0.001 per share, of which 10,158,251shares are issued and
outstanding. It is agreed that prior to the Closing, the Buyer shall effectuate a 1 for 50
reverse stock split, so at the date of Closing there shall be 203,165 common shares
xxxxxxxxxxx.Xx the date of the Closing, Buyer will also issue 2,500,000 shares of
restricted to the Buyer’s designated consultants, and 2,996,835 of free trading stock
to such designated consultants as registered in a S-8 filing with the SEC. Therefore,
after Closing and the issuance of all common shares contemplated by this Agreement, there
will be a total of 20,700,000 shares outstanding.
4.7
Options and Rights. There are no outstanding subscriptions, options, warrants, rights,
securities, contracts, commitments, understandings or arrangements under which the Company
is bound or obligated to issue any additional shares of its capital stock or rights to
purchase shares of its capital stock.
4.8
Litigation. There is no Claim pending or threatened against, relating to or affecting
Buyer or any of the assets or businesses of Buyer nor is there any Order outstanding
against Buyer or any of the assets or properties of Buyer.
4.9
Disclosure. Neither this Agreement or any of the Ancillary Documents to which Buyer is a
party nor any exhibits, attachments, written statements, documents, certificates or other
items prepared for or supplied to Sellers by Buyer with respect to the transactions
contemplated hereby contains any untrue statement of a material fact or omits a material
fact necessary to make each statement contained herein or therein not misleading.
4.10
Securities Filings; Financial Statements.
(a)
Buyer is required to file forms or reports with the Securities and Exchange
Commission and is in compliance with all such requirements.
(b)
Included in the Buyer Schedules are (i) the audited balance sheets of Buyer as
of December 31, 2002, and the related audited statements of operations,
stockholders’ equity and cash flows for the fiscal year ended December 31,
2002, with respect thereto, all as set forth in the SEC Reports.
(c)
All such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved. The Buyer’s balance sheets present fairly as of their respective
dates the financial condition of Buyer. As of the date of such balance sheets,
except as and to the extent reflected or reserved against therein, Buyer had no
liabilities or obligations (absolute or contingent) which should be reflected in
the balance sheets or the notes thereto prepared in accordance with generally
accepted accounting principles, and all assets reflected therein are properly
reported and present fairly the value of the assets of Buyer, in accordance with
generally accepted accounting principles. The statements of operations,
stockholders’ equity and cash flows reflect fairly the information required
to be set forth therein by generally accepted accounting principles.
(d)
Buyer has no liabilities with respect to the payment of any federal, state,
county, local or other taxes (including any deficiencies, interest or
penalties), except for taxes accrued but not yet due and payable.
(e)
Buyer has timely filed all state, federal or local income and/or franchise tax
returns required to be filed by it from inception to the date hereof. Each of
such income tax returns reflects the taxes due for the period covered thereby,
except for amounts which, in the aggregate, are immaterial.
(f)
The books and records, financial and otherwise, of Buyer are in all material
aspects complete and correct and have been maintained in accordance with good
business and accounting practices.
(g)
All of Buyer’s assets are reflected on its financial statements, and,
except as set forth in the Buyer Schedules or the financial statements of Buyer
or the notes thereto, Buyer has no material liabilities, direct or indirect,
matured or unmatured, contingent or otherwise.
4.11 Material Transactions or
Affiliations. Except as disclosed herein and in the Buyer Schedules, there exists no
contract, agreement or arrangement between Buyer and any predecessor and any person who
was at the time of such contract, agreement or arrangement an officer, director, or person
owning of record or known by Buyer to own beneficially, 5% or more of the issued and
outstanding common stock of Buyer,and which is to be performed in whole or in part after
the date hereof or was entered into not more than three years prior to the date hereof.
Neither any officer, director, nor 5% shareholder of Buyer has, or has had since inception
of Buyer has any known interest, direct or indirect, in any such transaction with Buyer
which was material to the business of Buyer. Buyer has no commitment, whether written or
oral, to lend any funds to, borrow any money from, or enter into any other transaction
with, any such affiliated person.
4.12 Bank Accounts; Power of
Attorney. Set forth in Schedule 2.21 is a true and complete list of (a) all accounts with
banks, money market mutual funds or securities or other financial institutions maintained
by Buyer within the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of Buyer, (b) all safe deposit boxes and other similar
custodial arrangements maintained by Buyer within the past twelve (12) months, and (c) the
names of all persons holding powers of attorney from Buyer or who are otherwise authorized
to act on behalf of Buyer with respect to any matter, other than its officers and
directors, and a summary of the terms of such powers or authorizations.
ARTICLE V
From
the date hereof until the Closing Date, except as otherwise consented to or approved by
Buyer in writing, Sellers shall cause the Company to:
5.1
Regular Course of Business. Operate its business diligently and in good faith and in the
Ordinary Course of Business, including, without limitation: (i) maintaining all of its
respective properties in good order and condition; (ii) maintaining (except for expiration
due to lapse of time) all Contracts in effect without change except as expressly provided
herein; (iii) complying with the provisions of all Regulations and Orders applicable to
the Company and the conduct of its respective business; (iv) maintaining insurance and
reinsurance coverage as in effect on the date hereof up to the Closing Date; (v)
preserving the business of the Company intact; (vi) using its best efforts to keep
available for the Company and Buyer, the services of the employees of the Company; and
(vii) preserving the good will of clients, suppliers and others having business relations
with the Company.
5.2
Certain Restrictions. Refrain from: (i) changing or amending the Charter Documents of the
Company; (ii) merging with or into or consolidating with any other Person; (iii) acquiring
all or substantially all of the stock or the assets of any Person or changing the
character of its business; (iv) issuing or selling any shares of the Company’s
capital stock of any class or any securities convertible into, or options, warrants to
purchase or rights to subscribe to, any shares of such capital stock; (v) permitting any
liens upon, pledging or otherwise encumbering any shares of such capital stock or any of
their respective assets or properties; (vi) declaring, paying or setting aside for payment
any dividend or other distribution to any of the stockholders of the Company in respect of
their respective capital stock or otherwise; (vii) directly or indirectly, redeeming,
retiring, purchasing or otherwise acquiring any shares of their respective capital stock
or any of their respective indebtedness for money borrowed in advance of any scheduled
repayment date; (viii) making any capital expenditures, or commitments with respect
thereto; (ix) incurring, assuming or guaranteeing any indebtedness, obligations or
liabilities or entering into any transactions or making any commitment to do any of the
foregoing except in the Ordinary Course of Business or for purposes of consummation of the
transactions contemplated by this Agreement and in any case only after consultation with
Buyer; (x) canceling, releasing, waiving or compromising any debt, Claim or right in their
respective favor; (xi) altering the rate or basis of compensation of any of their
respective officers, directors, employees or consultants; and (xii) taking any action or
failing to take any action as a result of which any of the other changes or events listed
in Section 2.6 hereof is likely to occur.
5.3
Full Access and Disclosure.
(a)
Afford to Buyer and its counsel, accountants and other authorized
representatives reasonable access during business hours to the Company’s
facilities, properties, books and records in order that Buyer may have full
opportunity to make such reasonable investigations as it shall desire to make of
the affairs of the Company’s, including financial statement and other
audits at the sole cost and expense of Buyer; and each Seller shall cause the
Company’s officers, employees and auditors to furnish on a timely basis
such additional financial and operating data and other information as Buyer
shall from time to time reasonably request including, without limitation, any
internal control recommendations applicable to the Company made by the
Company’s independent auditors in connection with any examination of the
Company’s financial statements and books and records.
(b)
Promptly notify Buyer in writing if any Seller becomes aware of any fact or
condition that causes or constitutes a breach of any representation or warranty
of any Seller as of the date of this Agreement, or if any Seller becomes aware
of the occurrence after the date of this Agreement of any fact or condition that
would (except as expressly contemplated by this Agreement) cause or constitute a
breach of any such representation or warranty had such representation or
warranty been made as of the time of occurrence or discovery of such fact or
condition.
5.4
Fulfillment of Conditions Precedent. Refrain from taking any action which, if taken on or
prior to the Closing Date, would constitute a breach of this Agreement. Each Seller shall
use his, her or its best efforts to obtain at such Seller ‘s expense, on or prior to
the Closing Date, all such waivers, permits, consents, approvals or other authorizat ions
from third parties and Authorities, and to do all things as may be necessary or desirable
in connection with the transactions contemplated by this Agreement in order to fully and
expeditiously consummate the transactions contemplated by this Agreement.
5.5
Tax Returns. File all Tax Returns and reports with respect to Taxes which are required to
be filed for Tax periods ending on or before the Closing Date (a “Pre-Closing Tax
Return”), and the Company shall pay all Taxes due in respect of such Pre-Closing Tax
Returns to the appropriate Taxing Authority; and the Company shall pay all costs
associated with the preparation thereof.
5.6
No Solicitation or Negotiation. Refrain from, and cause the Company’s directors,
officers, employees, representatives, agents, advisors, accountants and attorneys to
refrain from, initiating, soliciting or encouraging, directly or indirectly, any inquiries
or the making of any proposal with respect to, or engage in negotiations concerning, or
provide any confidential information or data to any Person with respect to, or have any
discussions with any Persons relating to, any acquisition, business combination or
purchase of all or any significant asset of, or any equity interest in, the Company, or
otherwise facilitate any effort or attempt to do or seek any of the foregoing, and shall
immediately cease and cause to be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the foregoing.
5.7
Public Announcements. Refrain from disclosing any of the terms of this Agreement to any
third party (other than Buyer’s advisors and the Sellers’ advisors) without the
other party’s prior written consent unless required by any applicable law. The form,
content and timing of any and all press releases, public announcements or publicity
statements (except for any disclosures under or pursuant to Federal or State securities
laws in connection with the registration of Buyer’s securities or otherwise) with
respect to this Agreement or the transactions contemplated hereby shall be subject to the
prior approval of the Buyer and the Sellers’ representative.
5.8
Termination of Agreements. Terminate or cause to be terminated, on or prior to the Closing
Date, any stockholders’ agreements, voting agreements or voting trusts to which any
Seller or the Company is a party.
5.9
Anti-Dilution.
(a) The number
of shares of Optical Concepts of America, Inc., common stock issuable upon exchange
pursuant to Section 3.01 shall be appropriately adjusted to take into account any other
stock split, stock dividend, reverse stock split, recapitalization, or similar change in
the Buyer common stock which may occur (i) between the date of the execution of this
Agreement and the Closing Date, as to the Initial Shares, and (ii) between the date of
the execution of this Agreement and the release date, as to the Additional Shares.
(b)
During the first 6 months period from the closing date, the Company hereby
agrees that it will not undertake any form of equity financing without the
express written consent and agreement of Consultant and furthermore, the
controlling shareholders of the Company agree to “lock-up” their stock
for a term of 12 months from the closing date and will not sell or attempt to
sell any of their shares without Consultant’s specific consent during this
period. This prohibition on the issuance or sale of any form of equity security
shall include, inter alias, offerings made under SB-2, Regulation-D,
Regulation-S, Xxxxxxxxxx-X, X-0 or stock options/warrants. Further, as the
Company requires additional capital, Consultant will have first right of refusal
for any and all free trading common stock that the Company wishes to sell. The
term consultant in this sub-section refers to the current majority shareholders
of Buyer and certain consultants facilitating this agreement.
ARTICLE VI
6.1
Certain Restrictions. From the date hereof until the Closing Date, except as otherwise
consented to or approved by Sellers owning a majority of the Company Common Shares , Buyer
shall refrain from issuing or selling any shares of the Company’s or any other member
of the Company’s capital stock of any class or any securities convertible into, or
options, warrants to purchase or rights to subscribe to, any shares of such capital stock.
Notwithstanding the foregoing, it is agreed and consented that the Buyer, at the date of
the Closing, shall file a S-8 Registration Statement with the Securities and Exchange
Commission, which will result in the registration of 2,996,835 shares of the Buyer’s
commons stock to certain consultants to Buyer and the Company to be identified at the time
of the Closing.
6.2
Full Access and Disclosure. Buyer hereby covenants and agrees with Sellers that prior to
the Closing or the termination of this Agreement, Buyer shall afford to Sellers, and their
counsel, accountants and other authorized representatives an opportunity to make such
reasonable investigations as they shall desire to make of the business of Buyer; and Buyer
shall cause its officers, employees and auditors to furnish such additional financial and
operating data and other information as Sellers shall from time to time reasonably
request. From time to time prior to the Closing Date, Buyer shall promptly supplement or
amend information previously delivered to Sellers with respect to any matter hereafter
arising which, if existing or occurring at the date of this Agreement, would have been
required to be set forth herein or disclosed.
ARTICLE VII
7.1
Further Assurances. Subject to the terms and conditions of this Agreement, each of the
parties hereto shall use his, her or its best efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary, proper or advisable under
applicable Regulations to consummate and make effective the transactions contemplated by
this Agreement.
7.2
Consents. Without limiting the generality of Section 7.1, each of the parties hereto shall
use his or its best efforts to obtain all Permits of all Persons and Authorities
necessary, proper or advisable in connection with the consummation of the transactions
contemplated by this Agreement prior to the Closing Date.
7.3
No Termination of Any Seller’s Obligations by Subsequent Incapacity. Each Seller
specifically agrees that the obligations of such Seller hereunder shall not be terminated
by the death or incapacity of such Seller.
7.4
Confidentiality. From the date hereof to and including the Closing Date, Buyer, on the one
hand, and each Seller, on behalf of himself, herself or itself and the Company, on the
other hand, shall cause its principals, officers and other personnel and authorized
representatives to hold in confidence, and not disclose to any other Person without the
other party’s prior consent, all written and oral information furnished or disclosed
by or received from such party or its officers, directors, employees, agents, counsel and
auditors in connection with the transactions contemplated hereby except as may be
contemplated therein.
ARTICLE VIII
Each
and every obligation of Buyer under this Agreement shall be subject to the satisfaction,
on or before the Closing Date, of each of the following conditions, unless waived in
writing by Buyer:
8.1
Representations and Warranties; Covenants and Agreements. The representations and
warranties of each Seller contained in Article II and Article III and elsewhere in this
Agreement and all information contained in any exhibit, certificate, schedule or
attachment hereto or in any writing delivered by, or on behalf of, each Seller to Buyer,
shall be true and correct when made and shall be true and correct in all material respects
on the Closing Date as though then made, except as expressly provided herein. Each Seller
shall have performed and complied with all agreements, covenants and conditions and shall
have made all deliveries required by this Agreement to be performed, delivered and
complied with by him, her or it prior to the Closing Date or at the Closing.
8.2
No Injunction. No preliminary or permanent injunction or other Order, decree or ruling
issued by any Authority, or any Regulation promulgated or enacted by any Authority shall
be in effect, which would prevent the consummation of the transactions contemplated
hereby.
8.3
Third Party Consents. Sellers shall have delivered to Buyer, in form and substance
reasonably acceptable to Buyer, all consents, approvals, waivers or other authorizations
reasonably requested by Buyer with respect to the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby.
8.4
No Material Adverse Change. There shall have been no Material Adverse Change to the
Company, since the date of this Agreement. Buyer shall have received a certificate (which
shall be addressed to Buyer), dated the Closing Date, from a representative of Sellers
certifying to the foregoing.
8.5
Due Diligence. Buyer shall have completed its due diligence investigation with respect to
the Company including, but not limited to, business, financial, legal, operational,
customer, worker’s compensation, employee (both internal and external) and real
estate due diligence, with results satisfactory to Buyer in its sole discretion.
8.6
Seller's Closing Documents. Seller shall have delivered to Buyer executed
originals of each of the Sellers' closing documents.
8.7
German Listing. The Company shall have retained a specialist to effectuate a listing of
the Buyer’s stock on the Frankfurt Stock Exchange, and confirmation that such listing
should occur no later than thirty days from the date of the Closing.
ARTICLE IX
Each
and every obligation of each Seller under this Agreement shall be subject to the
satisfaction, on or before the Closing Date, of each of the following conditions unless
waived in writing by Sellers:
9.1
Representations and Warranties; Performance. The representations and warranties of Buyer
contained in Article IV and elsewhere in this Agreement and all information contained in
any exhibit, schedule or attachment hereto, or in any writing delivered by Buyer to
Sellers, shall be true and correct in all material respects when made and shall be true
and correct in all material respects on the Closing Date as though then made, except as
expressly provided herein. Buyer shall have performed and complied in all material
respects with all agreements, covenants and conditions required by this Agreement to be
performed and complied with by them prior to the Closing Date.
9.2
No Injunction. No preliminary or permanent injunction or other Order, decree or ruling
issued by any Authority, or any Regulation promulgated or enacted by any Authority shall
be in effect, which would prevent the consummation of the transactions contemplated
hereby.
9.3
Purchase Price. Each Seller shall have received the purchase price required to be
delivered at Closing and to which such Seller is entitled pursuant to Section 1.2 hereof.
9.4
Buyer's Closing Documents. Buyer shall have delivered to Sellers executed
originals of each of the other Buyer's Closing Documents.
9.5
14f Filing. Buyer shall have filed a Notification Statement to its Shareholders (Form 14f)
with the Securities and Exchange Commission, and have mailed such notice to its
shareholders.
ARTICLE X
10.1
Methods of Termination. This Agreement shall terminate:
(a)
by mutual consent of Buyer and Sellers holding a majority of the Company Common
Shares; or
(b)
on October 31, 2003.
10.2
Procedure Upon Termination. In the event this Agreement is terminated as provided in
Section 10.1:
(a)
each party shall redeliver all documents and other material of any other party
relating to the transactions contemplated hereby, whether obtained before or
after the execution hereof, to the party furnishing the same;
(b)
all information received by any party hereto of the other party or the Company
(other than information which is a matter of public knowledge or which has
heretofore been or is hereafter published in any publication for public
distribution or filed as public information with any governmental authority)
shall not at any time be used for the advantage of, or disclosed to third
parties by, such party to the detriment of the party furnishing such
information; and
(c)
no party hereto shall have any further liability or obligation to any other
party under or in connection with this Agreement.
ARTICLE XI
11.1
Deliveries by Sellers. At the Closing, in addition to any other documents or agreements
required under this Agreement, Sellers shall deliver to Buyer the following:
(a)
Certificates, in genuine and unaltered form, representing the Company Common
Shares, free and clear of all Liens, duly endorsed in blank or accompanied by
duly executed stock powers endorsed in blank, for transfer to Buyer;
(b)
Evidence, in form satisfactory to Buyer, that all consents and approvals
referred in Section 8.3 have been obtained;
(c)
The Articles of Incorporation of the Company, as certified by appropriate state
authority;
(d)
Certificate of good standing from the appropriate state authority;
(e)
Such other agreements, documents and instruments reasonably requested by Buyer
to effectuate the transactions contemplated in this Agreement.
11.2
Deliveries by Buyer. At the Closing, Buyer shall deliver to each Seller in accordance with
Exhibit “A” annexed hereto, the following:
(a)
Certificates evidencing the Buyer Common Shares to each Seller in accordance
with Exhibit ” A” annexed hereto;
(b)
The Articles of Incorporation of Buyer,as certified by the Florida Secretary of
State;
(c) A
Certificate of Good Standing for Buyer from the State of Florida; and
(d) Such
other agreements, documents and instruments reasonably requested by Sellers to
effectuate the transactions contemplated in this Agreement.
ARTICLE XII
12.1
Further Assurances. If at any time after the Closing Date, Buyer, on the one hand, or any
Seller, on the other hand, shall consider or be advised that any further agreements,
instruments, documents, deeds, papers, assignments or assurances in law or in any other
things are necessary, desirable or proper to vest, perfect or confirm, of record or
otherwise, in such party, the title to any property or rights of the other acquired or to
be acquired by reason of, or as a result of, this Agreement or any of the transactions
contemplated herein, the other party agrees that it or they shall execute and deliver all
such proper agreements, instruments, documents, deeds, papers, assignments and assurances
in law and do all things necessary, desirable or proper to vest, perfect or confirm title
to such property or rights in such party and otherwise to carry out the purpose of this
Agreement.
12.2
Audited Financial Statements. Each Seller shall use his, her or its best efforts to cause
to be completed and delivered to Buyer audited financial statements of the Company and
each of the Company’s Subsidiaries, reasonably necessary for Buyer to meet its
reporting obligations under the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder.
ARTICLE XIII
13.1
Survival; Knowledge. All of the terms and conditions of this Agreement, together with the
representations, warranties and covenants contained herein or in any instrument or
document delivered or to be delivered pursuant to this Agreement, shall survive the
execution of this Agreement and the Closing notwithstanding any investigation heretofore
or hereafter made by or on behalf of any party hereto; provided, however, that (i) the
agreements and covenants set forth in this Agreement shall survive and continue until all
obligations set forth therein shall have been performed and satisfied; and (ii) all
representations and warranties shall survive and continue until eighteen (18) months from
the Closing Date (the “Anniversary Date”), except for representations and
warranties for which a claim for indemnification hereunder (an “Indemnification
Claim”) shall be pending as of the Anniversary Date, in which event such
representations and warranties shall survive with respect to such Indemnification Claim
until the final disposition thereof.
13.2
Indemnification by Seller. Each Seller shall, severally, indemnify, defend and hold
harmless Buyer and each of the officers, directors, employees, shareholders, attorneys,
accountants, partners, representatives, agents, successors and assigns of each of the
foregoing (each an “Buyer Indemnified Party” and collectively, the “Buyer
Indemnified Parties”), at all times after the date of this Agreement, against and in
respect of any and all Claims (including, without limitation, the fees and expenses of
counsel) resulting from, or in respect of any misrepresentation, breach of warranty, or
nonfulfillment of any covenant or other obligation on the part of such Seller under this
Agreement, any document relating thereto or contained in any schedule (without giving
effect to any amendment or supplement thereto) or exhibit to this Agreement or from any
misrepresentation in or omission from any certificate, schedule, other agreement or
instrument by Sellers hereunder.
13.3
Indemnification by Buyer. Buyer shall indemnify, defend and hold harmless each Seller and
each of the representatives, agents, successors and assigns of such Seller (each a
“Seller Indemnified Party” and collectively, the “Seller Indemnified
Parties”), at all times after the date of this Agreement, against and in respect of
any and all Claims (including, without limitation, the fees and expenses of counsel)
resulting from, or in respect of, any misrepresentation, breach of warranty, or
nonfulfillment of any covenant or other obligation on the part of Buyer under this
Agreement, any document relating thereto or contained in any schedule (without giving
effect to any amendment or supplement thereto) or exhibit to this Agreement or from any
misrepresentation in or omission from any certificate, schedule, other agreement or
instrument by Buyer hereunder.
13.4
Third Party Claims.
(a)
Except as otherwise provided in this Agreement, the following procedures shall
be applicable with respect to indemnification for third party Claims. Promptly
after receipt by the party seeking indemnification hereunder (hereinafter
referred to as the “Indemnitee”) of notice of the commencement of any
(a) Tax audit or proceeding for the assessment of Tax by any taxing authority or
any other proceeding likely to result in the imposition of a Tax liability or
obligation, or (b) any action or the assertion of any Claim, liability or
obligation by a third party (whether by legal process or otherwise), against
which Claim, liability or obligation the other party to this Agreement
(hereinafter the “Indemnitor”) is, or may be, required under this
Agreement to indemnify such Indemnitee, the Indemnitee will, if a Claim thereon
is to be, or may be, made against the Indemnitor, notify the Indemnitor in
writing of the commencement or assertion thereof and give the Indemnitor a copy
of such Claim, process and all legal pleadings. The Indemnitor shall have the
right to participate in the defense of such action with counsel of reputable
standing. The Indemnitor shall have the right to assume the defense of such
action unless such action (i) may result in injunctions or other equitable
remedies in respect of the Indemnitee or its business; (ii) may result in
liabilities which, taken with other then existing Claims under this Article
XIII, would not be fully indemnified hereunder; or (iii) may have an adverse
impact on the business or financial condition of the Indemnitee after the
Closing Date (including an effect on the Tax liabilities, earnings or ongoing
business relationships of the Indemnitee). The Indemnitor and the Indemnitee
shall cooperate in the defense of such Claims. In the case that the Indemnitor
shall assume or participate in the defense of such audit, assessment or other
proceeding as provided herein, the Indemnitee shall make available to the
Indemnitor all relevant records and take such other action and sign such
documents as are necessary to defend such audit, assessment or other proceeding
in a timely manner.
(b)
Upon judgment, determination, settlement or compromise of any third party Claim,
the Indemnitor shall pay promptly on behalf of the Indemnitee, and/or to the
Indemnitee in reimbursement of any amount theretofore required to be paid by it,
the amount so determined by judgment, determination, settlement or compromise,
unless in the case of a judgment an appeal is made from the judgment, plus all
other Claims of the Indemnitee with respect thereto (including legal fees and
expenses). If the Indemnitor desires to appeal from an adverse judgment, then
the Indemnitor shall post and pay the cost of the security or bond to stay
execution of the judgment pending appeal. Upon the payment in full by the
Indemnitor of such amounts, the Indemnitor shall succeed to the rights of such
Indemnitee, to the extent not waived in settlement, against the third party who
made such third party Claim.
(c)
Prior to paying or settling any Claim against which an Indemnitor is, or may be,
obligated under this Agreement to indemnify an Indemnitee, the Indemnitee must
first supply the Indemnitor with a copy of a final court judgment or decree
holding the Indemnitee liable on such claim or failing such judgment or decree,
and must first receive the written approval of the terms and conditions of such
settlement from the Indemnitor. An Indemnitor shall have the right to settle any
Claim against it or as to which it has assumed the defense, subject to the prior
written approval of the Indemnitee, which approval shall not be unreasonably
withheld provided that such settlement involves only the payment of a fixed sum
which the Indemnitor is obligated to pay and does not include any admission of
liability or other such similar admissions by or related to Indemnitee with
respect to such Claim.
(d)
An Indemnitee shall have the right to employ its own counsel in any case, but
the fees and expenses of such counsel shall be at the expense of the Indemnitee
unless: (i) the employment of such counsel shall have been authorized in writing
by the Indemnitor in connection with the defense of such action or Claim; (ii)
the Indemnitor shall not have employed, or is prohibited under this Section 13.4
from employing, counsel in the defense of such action or Claim; or (iii) such
Indemnitee shall have reasonably concluded that there may be defenses available
to it which are contrary to, or inconsistent with, those available to the
Indemnitor, in any of which events such fees and expenses of not more than one
additional counsel for the indemnified parties shall be borne by the Indemnitor.
13.5
Limitation on Indemnification.
(a)
None of the Buyer Indemnified Parties shall assert any Indemnification Claim
hereunder against any Seller until such time as, and solely to the extent that,
the aggregate of all such claims which the Buyer Indemnified Parties may have
against Sellers shall exceed One Hundred Thousand Dollars ($100,000) (the
“Seller’s Indemnification Threshold”), and the maximum amount
that each Seller shall be liable under this Article XIII shall be limited to the
value of the purchase price such Seller received pursuant to Section 1.2. As to
each Seller, the aggregate of all Claims against such Seller shall be limited to
recourse against the Buyer Common Shares issued to such Seller pursuant to
Section 1.2, and the proceeds from the sale, transfer or hypothecation of such
Buyer Common Shares.
(b)
None of the Seller Indemnified Parties shall assert any Indemnification Claim
hereunder against Buyer until such time as, and solely to the extent that, the
aggregate of all such claims which the Seller Indemnified Parties may have
against Buyer shall exceed One Hundred Thousand Dollars ($100,000) (the
“Buyer Indemnification Threshold”).
ARTICLE XIV
14.1
Headings. The article, section and other headings contained in this Agreement are for
reference purposes only and do not affect in any way the meaning or interpretation of this
Agreement (or any provision hereof).
14.2
Pronouns and Plurals. Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine, or neuter forms, and the singular
forms of nouns, pronouns, and verbs include the plural and vice versa.
14.3
Construction. The parties acknowledge that each party has reviewed and revised this
Agreement and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the interpretation of
this Agreement.
14.4
Certain Definitions. Capitalized terms not defined in this Agreement, shall have the
following respective meanings:
“Affiliate”
means, with regard to any Person, (a) any Person, directly or indirectly, controlled by,
under common control of, or controlling such Person, (b) any Person, directly or
indirectly, in which such Person holds, of record or beneficially, five percent or more of
the equity or voting securities, (c) any Person that holds, of record or beneficially,
five percent or more of the equity or voting securities of such Person, (d) any Person
that, through Contract, relationship or otherwise, exerts a substantial influence on the
management of such Person’s affairs, (e) any Person that, through Contract,
relationship or otherwise, is influenced substantially in the management of their affairs
by such Person, or (f) any director, officer, partner or individual holding a similar
position in respect of such Person.
“Authority”
means any international, federal, state local or municipal governmental, regulatory or
administrative body, agency, department, division, subdivision, office, arbitrator or
other authority, any court or judicial authority, or any public, private or industry
regulatory agency or authority.
“Claim”
means any action, claim, obligation, liability, damage, loss, deficiency, cost, expense,
commitment, lawsuit, demand, suit, inquiry, hearing, investigation, notice of a violation,
litigation, proceeding, arbitration, or other dispute, whether civil, criminal,
administrative or otherwise, whether pursuant to contractual obligations or otherwise.
“Contract”
means any agreement, contract, commitment, instrument or other binding arrangement or
understanding, whether written or oral.
“Debt”
means, for any Person as of any date, the aggregate outstanding and unpaid balance
(including but not limited to unpaid principal, accrued interest, costs and expenses) of
all indebtedness of such Person which bears interest that would be included in Interest
Expense of such Person for a fiscal period that includes such date.
“GAAP”
means United States generally accepted accounting principles, applied on a consistent
basis.
“Lien”
means any security interest, lien, mortgage, pledge, hypothecation, encumbrance, Claim,
easement, restriction or interest of another Person of any kind or nature.
“Material
Adverse Change” means any development or change which has, had or would have a
Material Adverse Effect.
“Material
Adverse Effect” means, as to any Person, any circumstances, events, state of facts or
matters which has had, or might reasonably be expected to have, a material adverse effect
on (i) such Person’s business, operations, properties, assets, condition (financial
or otherwise), results, plans, strategies or prospects, or (ii) the ability of such Person
to consummate any of the transactions contemplated by this Agreement or any of the related
agreements, instruments or documents or (iii) the benefits contemplated to be conferred on
such Person by this Agreement or any of the related agreements, instruments or documents.
“Order”
means any decree, consent decree, judgment, award, order, injunction or consent of or by
an Authority.
“Ordinary
Course of Business” shall mean an action taken by a Person only if (i) such action is
consistent with the past practices of such Person and is taken in the ordinary course of
the normal day-to-day operations of such Person, (ii) such action is not required to be
authorized by the board of directors of such Person (or by any Person or group of Persons
exercising similar authority), and (iii) such action is similar in nature and magnitude to
actions customarily taken, without any authorization by the board of directors (or by any
Person or group of Persons exercising similar authority), in the ordinary course of the
normal day-to-day operations of other Persons that are in the same line of business as
such Person.
“Person”
means any individual, corporation, partnership, limited partnership, limited liability
partnership or company, joint venture, company, syndicate, union, unincorporated
organization, association, trust, entity, Authority or natural person.
“Regulation”
means any law, statute, rule, regulation, ordinance, requirement, announcement or other
binding action of or by an Authority.
ARTICLE XV
15.1
Amendment and Modification. Subject to applicable law, this Agreement may be amended,
modified and supplemented only by a written agreement signed by the Companies, Buyer and
Seller.
15.2
Entire Agreement. This Agreement, including the schedules and exhibits hereto and the
documents, annexes, attachments, certificates and instruments referred to herein and
therein, embodies the entire agreement and understanding of the parties hereto in respect
of the agreements and transactions contemplated by this Agreement and supersedes all prior
agreements, representations, warranties, prom ises, covenants, arrangements,
communications and understandings, oral or written, express or implied, between the
parties with respect to such transactions. There are no agreements, representations,
warranties, promises, covenants, arrangements or understandings between the parties with
respect to such transactions, other than those expressly set forth or referred to herein.
15.3
Notices. All notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when delivered
by hand or mailed, first class certified mail with postage paid or by overnight receipted
courier service:
|
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If to any Seller:
If to Buyer:
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The address as set forth on Exhibit "A"
Optical Concepts of America Inc
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
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or to such other person or address as
such party shall furnish by notice to all other parties in writing.
15.4
Exhibits and Schedules. The Exhibits and Schedules referred to in this Agreement are
attached hereto and incorporated herein by this reference. Disclosure of a specific item
in any one Schedule shall be deemed restricted only to the Section of this Agreement to
which such disclosure relates, except where, and to the extent that, there is an explicit
cross-reference in such Schedule to another Schedule.
15.5
Waiver of Compliance; Consents. Any failure of any party hereto to comply with any
obligation, covenant, agreement or condition herein may be waived in writing by the other
parties hereto, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given in
writing.
15.6
Assignment. This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without the prior written consent
of the other parties.
15.7
Governing Law. The Agreement shall be governed by the internal laws of the State of
Florida as to all matters, including but not limited to matters of validity, construction,
effect and performance.
15.8
Jurisdiction of Disputes; Waiver of Jury Trial. In the event any party to this Agreement
commences any litigation, proceeding or other legal action in connection with or relating
to this Agreement or any matters described or contemplated herein, with respect to any of
the matters described or contemplated herein or therein, the parties to this Agreement
hereby (a) agree under all circumstances absolutely and irrevocably to institute any
litigation, proceeding or other legal action in a court of competent jurisdiction located
within the City and County of Broward, State of Florida, whether a state or federal court;
(b) agree that in the event of any such litigation, proceeding or action, such parties
will consent and submit to personal jurisdiction in any such court described in clause (a)
of this Section and to service of process upon them in accordance with the rules and
statutes governing service of process (it being understood that nothing in this Section
shall be deemed to prevent any party from seeking to remove any action to a federal court
in Broward County, Florida); (c) agree to waive to the full extent permitted by law any
objection that they may now or hereafter have to the venue of any such litigation,
proceeding or action in any such court or that any such litigation, proceeding or action
was brought in an inconvenient forum; (d) agree as an alternative method of service to
service of process in any legal proceeding by mailing of copies thereof to such party at
its address set forth here in for communications to such party; (e) agree that any service
made as provided herein shall be effective and binding service in every respect; and (f)
agree that nothing herein shall affect the rights of any party to effect service of
process in any other manner permitted by Law. EACH PARTY HERETO WAIVES THE RIGHT TO A
TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY AND ALL ACTION
NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.
15.9
Injunctive Relief. The parties hereto agree that in the event of a breach of any provision
of this Agreement, the aggrieved party or parties may be without an adequate remedy at
law. The parties therefore agree that in the event of a breach of any provision of this
Agreement, the aggrieved party or parties may elect to institute and prosecute proceedings
in any court of competent jurisdiction to enforce specific performance or to enjoin the
continuing breach of such provision, as well as to obtain damages for breach of this
Agreement. By seeking or obtaining any such relief, the aggrieved party shall not be
precluded from seeking or obtaining any other relief to which it may be entitled.
15.10
Dealings in Good Faith; Best Efforts. Each party hereto agrees to act in good faith with
respect to the other party in exercising its rights and discharging its obligations under
this Agreement. Each party further agrees to use its best efforts to ensure that the
purposes of this Agreement are realized and to take all further steps as are reasonably
necessary to implement the provisions of this Agreement. Each party agrees to execute,
deliver and file any document or instrument necessary or advisable to implement or satisfy
the express provisions of this Agreement.
15.11
Binding Effect. This Agreement shall not be construed so as to confer any right or benefit
upon any Person other than the signatories to this Agreement and each of their respective
successors and permitted assigns.
15.12
Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing
to any party hereto, upon any breach or default of any other party under this Agreement,
shall impair any such right, power or remedy of such party nor shall it be construed to be
a waiver of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any single breach
or default be deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on the part of
any party hereto of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement must be made in writing and
shall be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
15.13
Severability. Unless otherwise provided herein, if any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
15.14
Expenses. All fees, costs and expenses (including, without limitation, legal, auditing and
accounting fees, costs and expenses) incurred in connection with considering, pursuing,
negotiating, documenting or consummating this Agreement and the transactions contemplated
hereby shal l be borne and paid solely by the party incurring such fees, costs and
expenses.
15.15
Attorneys’ Fees. If any party to this Agreement seeks to enforce the terms and
provisions of this Agreement, then the prevailing party in such action shall be entitled
to recover from the losing party all costs in connection with such action, including
without limitation reasonable attorneys’ fees, expenses and costs incurred with
respect to trials, appeals and collection.
15.16
Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[remainder of page
intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have made and entered into this Agreement the date
first hereinabove set forth.
SELLERS:
BUYER:
Optical Concepts of
America Inc.
By:
___________________________________
Authorized Signatory
EXHIBIT “A”
| SELLERS: |
CO. SHARES |
BUYER SHARES |
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INVESTOR SUITABILITY
QUESTIONNAIRE
OPTICAL CONCEPTS OF AMERICA INC.
0000 Xxxxx 00xx Xxx.,
Xxxxx 000
Xxxxxxxxx, Xxxxxxx
00000
This
questionnaire is required to be completed by each capital stock holder of Optical Concepts
of America, a Florida corporation, (the “Company”) and to be delivered to
Optical Concepts of America., a Florida corporation (“Buyer”) pursuant to the
Stock Purchase Agreement by and between Buyer and those persons designated as
“Sellers” therein (the “Agreement”). The information contained herein
is being furnished to Buyer in order to assist in determining whether the undersigned
qualifies to receive shares of Buyer’s common stock, par value $0.001 per share, in
accordance with the Agreement (collectively the “Securities”).
The
undersigned understands that such determination will be made in light of the requirements
of Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”), and the rules and regulations hereunder, and applicable state securities laws.
The offer and sale of the Securities have not being registered under the Securities Act.
Such offer and sale is being made privately pursuant to the private placement exemption
from registration provided for by the Securities Act.
The
undersigned understands that the purpose of this questionnaire is to enable Buyer to
discharge its responsibilities under the private placement exemption and that Buyer will
rely upon the accuracy and completeness of the information contained herein. Accordingly,
the undersigned represents and warrants to Buyer that (i) the information contained herein
is true and correct and may be relied upon by Buyer, and (ii) the undersigned will
immediately notify Buyer of any material change in any such information occurring prior to
the consummation of the transactions contemplated by the Agreement.
Please complete
Section III and either Section I or Section II.
SECTION I. OFFSHORE
INVESTOR STATUS
The following
questions are intended to determine whether the issuance of the Securities to the
undersigned is exempt from registration under Securities Act by virtue of Regulation S.
The
undersigned is not a "U.S. Person". (Check box if correct)
A “U.S. Person” means:
any natural person resident in the
United States,
any partnership or corporation organized or incorporated under the laws of
the United States,
any estate of which any executor or administrator is a U.S. Person,
any
trust of which any trustee is a U.S. Person,
any agency or branch of a foreign entity
located in the United States,
any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if any
individual resident in the United States),
any discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual resident in the United States), or
any partnership or
corporation if organized under the laws of any foreign jurisdiction and formed by any U.S.
Person principally for the purpose of investing in securities not registered under the
Act, unless it is organized or incorporated and owned by accredited investors (as defined
in Rule 501(a) under the Act) who are not natural persons, estates or trusts.
At the time the undersigned executed
the Agreement, the undersigned was outside the United States. (Check box if correct)
Except for a transaction registered
under the Act or pursuant to an exemption from such registration, Subscriber agrees not to
reoffer or sell the Shares, or to cause any transferee permitted hereunder to reoffer or
sell the Shares, within the United States, or for the account or benefit of a U.S. Person,
(i) as part of the distribution of the Common Stock at any time, or (ii) otherwise, until
at least one year after the Shares are issued (“Holding Period”), and, in either
case, only in a transaction meeting the requirements of Regulation S or Rule 144 under the
Act, including without limitation, where the offer (i) is not made to a person in the
United States and either (A) at the time the buy order is originated, the buyer is outside
the United States or the seller and any person acting on its behalf reasonably believe
that the buyer is outside the United States, or (B) the transaction is executed in, on or
through the facilities of a designated offshore securities market and neither the seller
nor any person acting on its behalf knows that the transaction has been pre-arranged with
a buyer in the United States; and (ii) no directed selling efforts shall be made in the
United States by the buyer, an affiliate or any person acting on their behalf. (Check box
if the undersigned agrees to the foregoing)
If the undersigned can not check
all of the three boxes above, the undersigned must complete Section II.
SECTION II. ACCREDITED
INVESTOR STATUS
The
following questions are intended to determine whether the un dersigned qualifies as an
“accredited investor” as defined in Regulation D under the Securities Act, and
as construed by the Staff of the Securities and Exchange Commission.
FOR INDIVIDUALS:
The
undersigned is an individual whose net worth, or joint worth with the undersigned's
spouse exceeds US$1,000,000. (Check box if correct)
The
undersigned is an individual whose income was in excess of US$200,000 (or joint income
together with the undersigned’s spouse in excess of US$300,000) in each of the two
most recent years (2000 and 2001) and the undersigned reasonably expects to reach the same
income level in the current year (2002). (Check box if correct.)
FOR ENTITIES:
The
undersigned is a bank as defined in Section 3(a)(2) of the Act or a savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the Act whether
acting in its individual or fiduciary capacity;
The
undersigned is a broker-dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended;
The undersigned is an insurance
company as defined in Section 2(13) of the Act;
The undersigned is an investment
company registered under the Investment Company Act of 1940, as amended (the
“Investment Act”) or a business development company as defined in Section
2(a)(48) of the Investment Act;
The undersigned is a Small Business
Investment Company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958, as amended;
The undersigned is a plan established
and maintained by a state, its political subdivisions, or any agency or instrumentality of
a state or its political subdivisions, for the benefit of its employees, where such plan
has total assets in excess of US$5,000,000;
The
undersigned is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended (the “Employee Act”), where
the investment decision is made by a plan fiduciary, as defined in Section 3(21) of the
Employee Act, which is either a bank, savings and loan association, insurance company, or
registered investment adviser, or an employee benefit plan that has total assets in excess
of US$5,000,000 or a self-directed plan the investment decisions of which are made solely
by persons that are accredited investors;
The
undersigned is a private business development company, as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940 as amended;
The
undersigned is an organization described in Section 501(c)(3) of the Internal Revenue
Code, a corporation, a Massachusetts or similar business trust, or a partnership, not
formed for the specific purpose of acquiring the Securities, with total assets in excess
of US $5,000,000;
The
undersigned is a trust, with total assets in excess of US$5,000,000, not formed for the
specific purpose of acquiring the Securities, whose purchase is directed by a
“sophisticated” person, who has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of the prospective
investment.
| FOR INDIVIDUALS |
|
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
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Full Name
Residence Address
Mailing Address (if different)
Signature
Additional Name (only if held jointly)
Other signature (if held jointly)FOR ENTITIES
Name of Entity
Principal Executive Office Address
Mailing Address (if different)
Signature of Authorized Person
Name of Authorized Person
Title of Authorized Person
|
