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Exhibit 10.1
STOCK PURCHASE AGREEMENT
BY AND AMONG
XXXXXXX X. XXXXXXXXX, AS TESTAMENTARY EXECUTRIX
OF THE SUCCESSION OF XXX X. XXXXXXXXX,
XXXXX XXXXX,
AND
VISION PLAZA CORP.
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TABLE OF CONTENTS
Page
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Section 1. Terms of the Sale and Purchase of Stock
1.1 Conveyance of Stock. 1
1.2 Purchase Price: Liabilities Assumed 2
Section 2. Representations and Warranties of the Shareholders
2.1 Corporate Existence: Good Standing 2
2.2 Power and Authority for Transactions 3
2.3 Permits. Licenses and Governmental Authorizations 3
2.4 Corporate Records 3
2.5 Consents 4
2.6 The Company's Financial Information 4
2.7 Leases 4
2.8 Condition of Assets 4
2.9 Title to and Encumbrances on Property 4
2.10 Intellectual Property Rights: 5
2.11 Directors and Officers: Payroll Information: Employees 5
2.12 Legal Proceedings 6
2.13 Contracts 6
2.14 Subsequent Events 7
2.15 Taxes 9
2.16 Liabilities: Debt 9
2.17 Insurance Policies 10
2.18 Employee Benefit Plans 10
2.19 Adverse Agreements 10
2.20 Compliance with Laws in General 11
2.21 Medicare and Medicaid Programs 11
2.22 Fraud and Abuse 11
2.23 No Untrue Representations 12
2.24 Distributions and Repurchases 12
2.25 Ownership Interests of Interested Persons: Competitors 12
2.26 Inventory 12
2.27 Certain Practices 12
2.28 Environmental Matters 13
2.29 Significant Customers and Suppliers 13
2.30 Broker s Fee 13
Section 3. Representations and Warranties of Purchaser
3.1 Corporate Existence: Good Standing 13
3.2 Power and Authority 13
3.3 No Untrue Representations 00
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Xxxxxxx 0. Xxxxxxxxx of the Shareholders
4.1 Consummation of Agreement 14
4.2 Business Operations 14
4.3 Access and Notice 14
4.4 Approvals of Third Parties and Permits and Consents 14
4.5 Acquisition Proposals 15
4.6 Employee Matters 15
4.7 Distributions and Repurchases 15
4.8 Requirements to Effect Transaction 15
4.9 Voting of Shares 15
4.10 Accounting and Tax Matters 16
4.11 Conversion Transaction 17
4.12 Survival of Covenants 17
4.13 Covenant Not to Compete 17
Section 5. Covenants of Purchaser
5.1 Consummation of Agreement 18
5.2 Approvals of Third Parties and Permits and Consents 18
Section 6. Purchaser Conditions Precedent
6.1 Representations and Warranties 18
6.2 Covenants and Conditions 18
6.3 Proceedings 19
6.4 No Material Adverse Change 19
6.5 Approvals 19
6.6 Notice 19
6.7 Employment Arrangements 19
6.8 Consents and Approvals: Succession Court Approval 19
6.9 Closing Deliveries 20
6.10 Debt and Receivables 20
6.11 Resignations 20
6.12 Dissenting Shares 20
6.13 No Material Change in Working Capital 20
6.14 No Material Adverse Economic Effect 20
6.15 Opinion Letter 20
Section 7. The Company's and the Shareholders' Conditions Precedent
7.1 Representations and Warranties 20
7.2 Covenants and Conditions 21
7.3 Proceedings 21
7.4 Closing Deliveries 21
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Section 8. Closing Deliveries
8.1 Deliveries of the Company and the Shareholders 21
8.2 Deliveries of Purchaser 21
Section 9. Nature and Survival of Representations and
Warranties: Indemnification
9.1 Nature and Survival 22
Section 10. Termination 24
Section 11. Miscellaneous
11.1 Notices 24
11.2 Further Assurances 25
11.3 Each Party to Bear Costs 25
11.4 Public Disclosures 25
11.5 GOVERNING LAW 26
11.6 Captions 26
11.7 Integration of Exhibits 26
11.8 ENTIRE AGREEMENT/AMENDMENT 26
11.9 Counterparts 26
11.10 Binding Effect/Assignment 26
11.11 No Rule of Construction 26
11.12 Costs of Enforcement 26
11.13 Amendments: Waivers 27
11.14 Severability 27
11.15 Xxxxx Xxxxxxxx 27
11.16 Xxxx Xxxxxxxxx 27
11.17 Closing 27
11.18 Deposit 27
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, made and executed as of the 1st day of
July, 1997 is by and among VISION PLAZA CORP. ("Purchaser"); and XXX. XXXXXXX X.
XXXXXXXXX, in her capacity as the Testamentary Executrix of the Succession of
Xxx X. Xxxxxxxxx (Civil District Court No. 96-13287) and XXXXX XXXXX
(individually "Shareholder," and collectively "Shareholders").
WITNESSETH:
WHEREAS, the Shareholders are the sole shareholders of Xx. Xxxxxxxxx, An
Optometry Corporation, a Louisiana professional optometry corporation
("Parent"); and
WHEREAS, Vision Horizon, Inc., Vision Universe, Inc., Vision Lake
Forest, Inc., Vision Southland, Inc., Vision Xxxxxxx Square, Inc., Vision
Oakwood, Inc., Vision Uptown, Inc., Vision CBD, Inc., Vision Hattiesburg, Inc.,
Vision at the Dome, Inc., Vision Mississippi, Inc., Vision Esplanade, Inc.,
Vision Tomorrow, Inc., World Vision Quest, Inc., Orleans Spectacle Corp.,
Orleans Sunglasses, Inc., Vision Unlimited Laboratories, Inc., Eye Refractions
Consultants, Inc., Vision Xxxxxxxx, Inc., Vision Downtown, Inc., Vision Plaza,
Inc., Vision Frontiers, Inc. and Vision Quest, Inc. (the "Subsidiaries") are
wholly owned subsidiaries of Parent and represent all subsidiaries and
affiliates of Parent (Parent and Subsidiaries collectively referred to herein as
the "Company"); and
WHEREAS, the Company operates an optometry business in Louisiana and
Mississippi; and
WHEREAS, the Shareholders wish to sell to Purchaser, and Purchaser
wishes to acquire from the Shareholders, one hundred percent (100%) of the
shares of Parent, all upon the terms and subject to the conditions set forth
herein;
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. TERMS OF THE SALE AND PURCHASE OF STOCK
The sale of the stock of the Parent which is to be sold hereunder and
the acquisition thereof by Purchaser shall be based on the respective
representations, warranties and agreements of the parties hereto, and shall be
subject to the terms and conditions herein stated, and shall occur upon the
satisfaction of all conditions precedent contained herein (the "Closing Date").
1.1 Conveyance of Stock. Subject to and upon the terms and
conditions contained herein, on the Closing Date, the Shareholders shall sell,
convey, transfer, deliver and assign to Purchaser one hundred percent (100%) of
their shares of the Parent which represents one hundred percent (100%) of the
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outstanding stock of the Parent, free and clear of any obligations, security,
intents, claims, liens and encumbrances whatsoever (the "Shares").
1.2 Purchase Price; Liabilities Assumed. As consideration for the
sale of the Shares by Shareholders, Purchaser shall, on the Closing Date,
provide Shareholders with the consideration specified in Annex I attached hereto
(the "Consideration"), the cash portion of which Consideration shall be payable
by federal wire or cashier's check. In addition to paying the Consideration
specified in Annex I, Purchaser shall cause the Parent to pay in full on the
Closing Date the following indebtedness: (i) the indebtedness owing to Xxx.
Xxxxxxx Xxxxxxxxx as evidenced by the Promissory Note attached hereto as Exhibit
1.2(a) in an amount not to exceed the $470,585.80, (ii) the indebtedness owing
to Xxxxxx X. Xxxx as evidenced by the Promissory Note attached hereto as Exhibit
1.2(b) in an amount not to exceed $265,498.18, and (iii) the indebtedness owing
on Xxxxxx Xxxx s contract attached hereto as Exhibit 1.2C in an amount not to
exceed $63,000. Other than the indebtedness set forth in (i), (ii) and (iii)
above and as set forth on the Balance Sheet, the Shareholders represent and
warrant that there is no other indebtedness of the Company other than as
disclosed in this Agreement including the Exhibits attached hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders, jointly and severally, hereby represent and warrant to
Purchaser as follows:
2.1 Corporate Existence: Good Standing. The Parent is a professional
optometry corporation duly organized, validly existing and in good standing
under the laws of the State of Louisiana; and the Companies other than Parent
are business corporations duly organized, validly existing and in goods standing
under the laws of the State of Louisiana. The Company has all necessary
corporate powers to own all of its assets and to carry on its business as such
business is now being conducted except as may have been caused by the death of
Dr. Xxx 1. Xxxxxxxxx, the only licensed optometrist shareholder of the Parent.
The Shareholders are the sole shareholders of the Parent and own all outstanding
shares of capital stock free of all security interests, claims, encumbrances and
liens in the amounts set forth on Exhibit 2.1. Each share of Company common
stock has been legally and validly issued and is fully paid and nonassessable.
Other than as set forth on Exhibit 2.1, no shares of capital stock of the
Company are owned by the Company in treasury. There are no outstanding (a)
bonds, debentures, notes or other obligations the holders of which have the
right to vote with the stockholders of the Company on any matter, (b) securities
of the Company convertible into equity interests in the Company, or (c)
commitments, options, rights or warrants to issue any such equity interests in
the Company, to issue securities of the Company convertible into such equity
interests, or to redeem any securities of the Company. No shares of capital
stock of the Company have been issued or disposed of in violation of the
preemptive rights, rights of first refusal or similar rights of any of the
Company's stockholders. The Company is not required to qualify to do business as
a foreign corporation in any other state or jurisdiction by reason of its
business, properties or activities in or relating to such other state or
jurisdiction , except for Vision Mississippi, Inc., which is qualified to do
business in Mississippi and except that no representation is made as to whether
Parent is required to qualify to do business as a foreign corporation
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in Mississippi. The Company does not have any assets, employees or offices in
any state other than Louisiana and Mississippi.
2.2 Power and Authority for Transactions. There is no action
required by law, the Company's Articles or Certificate of Incorporation, its
Bylaws or otherwise, to authorize the execution, delivery and performance of
this Agreement and such related documents, except the approval of the Civil
District Court in proceedings bearing number 96-13287 being the Succession of
Xxx X. Xxxxxxxxx. Each Shareholder has the legal capacity to enter into and
perform this Agreement and the other agreements to be executed and delivered in
connection herewith. This Agreement and all agreements and documents executed
and delivered in connection herewith have been, or will be as of the Closing
Date, duly executed and delivered by the Shareholders, as appropriate, and
constitute or will constitute the legal, valid and binding obligations of the
Shareholders, enforceable against the Shareholders in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally or the availability of
equitable remedies. The execution and delivery of this Agreement, and the
agreements executed and delivered pursuant to this Agreement or to be executed
and delivered on the Closing Date, do not, and, subject to the receipt of
consents described on Exhibit 2.5 and the order of the court described in
Section 6.8 hereof, the consummation of the actions contemplated hereby will
not, violate any provision of the Articles or Certificate of Incorporation or
Bylaws of the Company or any provisions of, or result in the acceleration of,
any obligation under any mortgage, lien, lease, agreement, rent, instrument,
order, arbitration award, judgment or decree to which the Company or any
Shareholder is a party or by which the Company or any Shareholder is bound, or
violate any material restrictions of any kind to which the Company is subject,
or result in any lien or encumbrance on any of the Company's assets other than
as disclosed in this Agreement including the Exhibits attached hereto.
2.3 Permits. Licenses and Governmental Authorizations. All building
or other permits, certificates of occupancy, concessions, grants, franchises,
licenses, certificates of need and other governmental authorizations and
approvals required to be maintained by the Company and each doctor or licensed
employee of the Company have been duly obtained and are in full force and effect
and are described on Exhibit 2.3. There are no proceedings pending or, to the
knowledge of the Company and the Shareholders, threatened, which may result in
the revocation, cancellation or suspension, or any adverse modification, of any
thereof.
2.4 Corporate Records. True and correct copies of the Articles or
Certificate of Incorporation, Bylaws and minutes, if any, of the Company and all
amendments thereto of the Company have been delivered to Purchaser. The minute
books of the Company contain all minutes of the meetings of and consents to
actions taken without meetings of the Board of Directors and stockholders of the
Company since its formation which are in existence or have been prepared, the
Shareholders not representing and warranting that all meetings were documented
in the form of written minutes. The books of account of the Company have been
kept accurately in the ordinary course of business and the revenues, expenses,
assets and liabilities of the Company have been properly recorded in such books
in accordance with GAAP (as defined in section 2.6).
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2.5 Consents. Except as set forth on Exhibit 2.5, no consent,
authorization, permit, license or filing with any governmental authority, any
lender, lessor, any manufacturer or supplier or any other person or entity is
required to authorize, or is required in connection with, the execution,
delivery and performance of this Agreement and the agreements and documents
contemplated hereby on the part of the Company or the Shareholders.
2.6 The Company's Financial Information. The Company has heretofore
furnished Purchaser with financial information about the Company disclosed on
Exhibit 2.6 attached hereto (the "Financial Statements"), including the
unaudited Balance Sheet ("Balance Sheet") as of March 31, 1997 ("Balance Sheet
Date"). Other than as disclosed in this Agreement including the Exhibits
attached hereto, the Financial Statements for the periods indicated, reflect all
liabilities of the Company required to be reported in accordance with generally
accepted accounting principles consistently applied ("GAAP"), reflect all
contingent liabilities of the Company required to be reported in accordance with
GAAP, as of their respective dates, and present fairly the financial position of
the Company as of such dates and the results of operations and cash flows for
the period or periods reflected therein. The Financial Statements do not include
as inventory any item that does not meet the definition of inventory (e.g. items
owned by a party other than the Company and held by or on behalf of the Company
as consignee are not included). The Financial Statements do not include as fixed
assets any operating leases.
2.7 Leases. Exhibit 2.7 attached hereto sets forth a list of all
leases pursuant to which the Company leases, as lessor or lessee, real or
personal property used in operating the business of the Company or otherwise.
All such leases listed on Exhibit 2.7 are valid and enforceable in accordance
with their respective terms, and there is not under any such lease any existing
default by the Company, as lessor or lessee, or any condition or event of which
the Company or any Shareholder has knowledge which with notice or lapse of time,
or both, would constitute a default, in respect of which the Company has not
taken adequate steps to cure such default or to prevent a default from
occurring. Nothing herein shall be deemed to imply that the Shareholders are
representing that the sale of the stock of the Company does not in and of itself
create a default in and under the leases.
2.8 Condition of Assets. All of the plants, structures and equipment
used by the Company in its business are in good condition and repair subject to
normal wear and tear and conform with all applicable ordinances, regulations and
other laws, and the Company and the Shareholders have no knowledge of any latent
defects therein.
2.9 Title to and Encumbrances on Property. A description of all
interests in real and personal property owned by the Company is set forth on
Exhibit 2.9. The Company has good, valid and marketable title to all of its
personal and real property, free and clear of any liens, claims, charges,
exceptions or encumbrances. The real and personal property described on Exhibit
2.9 and Exhibit 2.7 constitute the only real and personal property used in the
conduct of the Company's business.
2.10 Intellectual Property Rights. Except as set forth on Exhibit
2.10, the Company has no right, title or interest in or to patents, patent
rights, corporate
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names, assumed names, manufacturing processes, trade names, trademarks, service
marks, inventions, specialized treatment protocols, copyrights, formulas and
trade secrets or similar items and such items are the only such items necessary
for the conduct of its business. Set forth in Exhibit 2.10 is a listing of all
names of all predecessor companies of the Company, including the names of any
entities from whom the Company previously acquired significant assets. Except
for off-the-shelf software licenses and except as set forth on Exhibit 2.10, the
Company is not a licensee in respect of any patents, trademarks, service marks,
trade names, copyrights or applications therefor, or manufacturing processes,
formulas or trade secrets or similar items and no such licenses are necessary
for the conduct of its business. No claim is pending or has been made to the
effect that the present or past operations of the Company infringe upon or
conflict with the asserted rights of others to any patents, patent rights,
manufacturing processes, trade names, trademarks, service marks, inventions,
licenses, specialized treatment protocols, copyrights, formulas, know-how and
trade secrets. The Company is not in default under any license agreement or
contract relating to any such proprietary rights nor, to its knowledge, is any
other party. The Company has the sole and exclusive right to use all such
proprietary rights without infringing or violating the rights of any third
parties and no consents of any third parties are required for the use thereof by
the Purchaser.
2.11 Directors and Officers: Payroll Information: Employees. Set
forth on Exhibit 2.11 attached hereto is a true and complete list, as of the
date of this Agreement of: (a) the name of each director and officer of the
Company and the offices held by each, (b) the most recent payroll report of the
Company, showing all current employees of the Company and their current levels
of compensation, (c) promised increases in compensation of employees of the
Company that have not yet been effected, (d) oral or written employment
agreements or independent contractor agreements (and all amendments thereto) to
which the Company is a party, copies of which have been delivered to Purchaser,
and (e) all employee manuals, materials, policies, procedures and work-related
rules, copies of which have been delivered to Purchaser. The Company is in
compliance with all applicable laws, rules, regulations and ordinances
respecting employment and employment practices. The Company has not engaged in
any unfair labor practice. There are no unfair labor practices charges or
complaints pending or threatened against the Company, and the Company has never
been a party to any agreement with any union, labor organization or collective
bargaining unit. The 1996 W-2 and 1099 forms filed by the Company have been made
available to the Purchaser at Company s office.
No employee has a written employment agreement with the Company which is
not terminable on notice by the Company without cost or other liability to the
Company. No employee has indicated to the Company or the Shareholders that he or
she intends to terminate his or her employment by the Company or seek a material
change in his or her duties or status.
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2.12 Legal Proceedings. Other than as set forth on Exhibit 2.12
neither the Company nor any of the Company's assets is subject to any pending,
nor does the Company or any Shareholder have knowledge of any threatened,
litigation, governmental investigation, condemnation or other proceeding against
or relating to or affecting the Company, the outstanding shares of the Company's
stock, any of the assets of the Company, the operations, business or prospects
of the Company or the transactions contemplated by this Agreement, and, to the
knowledge of the Company and the Shareholders, no basis for any such action
exists, nor is there any legal impediment of which the Company or any
Shareholder has knowledge to the continued operation of its business in the
ordinary course, subject to consents set forth on Exhibit 2.5 and subject to the
provisions of the Louisiana Professional Optometry Corporation statute, being
R.S. 12:1110, et seq.
2.13 Contracts. The Company has delivered to Purchaser true copies of
all written, and disclosed to Purchaser all oral, outstanding contracts,
obligations and commitments of the Company ("Contracts"), all of which are
listed or incorporated by reference on Exhibit 2.7 (in the case of leases),
Exhibit 2.11 (in the case of employment agreements) and Exhibit 2.13 (in the
case of Contracts other than leases) attached hereto. Except as otherwise
indicated on such Exhibits, all of such Contracts are valid, binding and
enforceable in accordance with their terms and are in full force and effect, and
no defenses, offsets or counterclaims have been asserted or may be made by any
party thereto. Except as indicated on such Exhibits, there is not under any such
Contract any existing default by the Company, or any condition or event of which
the Company or any Shareholder has knowledge which with notice or lapse of time,
or both, would constitute a default. The Company and the Shareholders have no
knowledge of any default by any other party to such Contracts. Neither the
Company nor the Shareholders have received notice of the intention of any party
to any Contract to cancel or terminate any Contract or have any reason to
believe that any amendment or change to any Contract is contemplated by any
party thereto. Other than as disclosed in this Agreement including the Exhibits
attached hereto or listed on Exhibits 2.7, 2.11 and 2.3, the Company is not a
party to any material written or oral agreement contract, lease or arrangement,
including any:
(a) Contract related to the sale of any assets of the Company not
made in the ordinary course of business other than this Agreement;
(b) Employment, consulting or compensation agreement or arrangement;
(c) Labor or collective bargaining agreement;
(d) Lease agreement with respect to any property, whether as lessor
or lessee;
(e) Deed, xxxx of sale or other document evidencing an interest in
or agreement to purchase or sell real or personal property;
(f) Contract for the purchase of materials, supplies or equipment
(i) which is in excess of the requirements of its business now booked or for
normal operating inventories, or (ii) which is not terminable upon notice of
thirty (30)
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days or less, or (iii) under which the Company is likely to pay more than
$25,000;
(g) Agreement for the purchase from a supplier of all or
substantially all of the requirements of the Company of a particular product or
service;
(h) Loan agreement or other contract for money borrowed or lent or
to be borrowed or lent to another, except short term loans to employees in
amounts not in excess of one month s compensation;
(i) Contracts containing non-competition covenants; or
(j) Broker, distribution, dealer, manufacturer's representative,
franchise, agency, sales, promotion, market research, marketing consultant and
advertising contracts;
(k) Contracts and agreements with any governmental authority;
(l) Contracts and agreements with optometrists, ophthalmologists, or
other licensed eye care professionals;
(m) Contracts, agreements and arrangements between or among the
Company and any of its directors or shareholders or any member of the family of
any director or shareholder; or
(n) Other contracts or agreements that involve either an unperformed
commitment in excess of $1 ,000 or that terminate or can only be terminated by
the Company on more than 30 days after the date hereof.
2.14 Subsequent Events. Except as set forth on Exhibit 2.14. the
Company has not, since the Balance Sheet Date:
(a) Incurred any material obligation or liability (absolute,
accrued, contingent or otherwise) or entered into any contract, lease, license
or commitment, or incurred any indebtedness, except in connection with the
performance of this Agreement, other than in the ordinary course of business;
(b) Discharged or satisfied any material lien or encumbrance, or
paid or satisfied any material obligation or liability (absolute, accrued,
contingent or otherwise) other than (i) liabilities shown or reflected on the
Balance Sheet or (ii) liabilities incurred since the Balance Sheet Date in the
ordinary course of business;
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(c) Formed or acquired or disposed of any interest in any
corporation, partnership, joint venture or other entity;
(d) Made any payments to or loaned any money to any person or entity
other than in the ordinary course of business;
(e) Lost or terminated any employee, patient, customer or supplier
that has, individually or in the aggregate, a material adverse effect on its
business;
(f) Increased or established any reserve for taxes or any other
liability on its books or otherwise provided therefor, except as may have been
required due to income or operations of the Company since the Balance Sheet
Date;
(g) Mortgaged, pledged or subjected to any lien, charge or other
encumbrance any of the assets of the Company, tangible or intangible;
(h) Sold or contracted to sell or transferred or contracted to
transfer any of the assets used in the conduct of the Company's business or
cancelled any debts or claims or waived any rights, except in the ordinary
course of business;
(i) Increased the compensation of any officer, employee, consultant
or agent by more than the lesser of 12% or $6,000.00;
(j) Authorized or incurred any capital expenditures in excess of
Five Thousand and No/100 Dollars ($5,000.00);
(k) Except for this Agreement and any other agreement executed and
delivered pursuant to this Agreement, entered into any material transaction
other than in the ordinary course of business or permitted hereunder;
(l) Redeemed, purchased, sold or issued any stock, bonds or other
securities;
(m) Experienced damage, destruction or loss (whether or not covered
by insurance) materially and adversely affecting any of its properties, assets
or business, or experienced any other material adverse change in its financial
condition, assets, prospects, liabilities or business;
(n) Declared or paid a distribution, payment or dividend of any kind
on the capital stock of the Company;
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(o) Repurchased, approved any repurchase or agreed to repurchase any
of the Company's capital stock; or
(p) Suffered any material adverse change in the business of the
Company or to the assets of the Company.
2.15 Taxes. The Company has filed all tax returns (including tax
reports and other statements) required to be filed by it, and made all payments
of taxes (including any interest, penalty or addition thereto) required to be
made by it, on or before the date of this Agreement, with respect to income
taxes, real and personal property taxes, sales taxes, use taxes, employment
taxes, excise taxes and other taxes. All such tax returns are complete and
accurate in all respects and properly reflect the relevant taxes for the periods
covered thereby. The Company and the Shareholders have not received any notice
that any tax deficiency or delinquency has been asserted against the Company.
There are no audits relating to taxes of the Company threatened, pending or in
process. The Company is not currently the beneficiary of any waiver of any
statute of limitations in respect of taxes nor of any extension of time within
which to file any tax return or to pay any tax assessment or deficiency. There
are no liens or encumbrances relating to taxes on or threatened against any of
the assets of the Company. The Company has withheld and paid all taxes required
by law to have been withheld and paid by it. Neither the Company nor any
predecessor of the Company is or has been a party to any tax allocation or
sharing agreement or a member of an affiliated group of corporations filing a
consolidated federal income tax return. The Company has delivered to Purchaser
correct and complete copies of the Company's three most recently filed annual
state and federal income tax returns, together with all examination reports and
statements of deficiencies assessed against or agreed to by the Company during
the three calendar year period preceding the date of this Agreement. The Company
has not made any payments, is not obligated to make any payments, and is not a
party to any agreement that under any circumstance could obligate it to make any
payments that will not be deductible under Code section 280G.
2.16 Liabilities: Debt. Except to the extent reflected or reserved
against on the Balance Sheet and the indebtedness described in Section 1.2
hereof, the Company did not have, as of the Balance Sheet Date, and has not
incurred since that date and will not have incurred as of the Closing Date, any
liabilities or obligations of any nature, whether accrued, absolute, contingent
or otherwise, and whether due or to become due, other than those incurred in the
ordinary course of business. The Company and the Shareholders do not know, or
have reasonable grounds to know, of any basis for the assertion against the
Company as of the Balance Sheet Date, of any claim or liability of any nature in
any amount not fully reflected or reserved against on the Balance Sheet, or of
any claim or liability of any nature arising since that date other than those
incurred in the ordinary course of business or contemplated by this Agreement.
All indebtedness of the Company (including without limitation, indebtedness for
borrowed money, guaranties and capital lease obligations) is described on the
Balance Sheet or in Section 1.2. The Company and the Shareholders represent and
warrant that all indebtedness due and owing to Hibernia National Bank as
reflected on the July 1996 financial statements provided to Purchaser has been
extinguished and replaced by the indebtedness set forth on Exhibit 1.2(a) due
Xxx. Xxxxxxx Xxxxxxxxx. Other than said indebtedness to Xxx. Xxxxxxx Xxxxxxxxx,
the Company has no liability or obligation to any other director or other
shareholder of the Company or any
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family member of a shareholder other than due Xxxx Xxxxxxxxx, a Company
employee.
2.17 Insurance Policies. Valid and enforceable property, liability,
malpractice, worker's compensation and other insurance necessary to the
operations of the business are outstanding and duly in force and will remain
duly in force through the Closing Date. All such policies are described in
Exhibit 2.17 attached hereto and true and correct copies have been delivered to
Purchaser. Neither the Company nor any Shareholder has received notice or other
communication from the issuer of any such insurance policy cancelling or
amending such policy or threatening to do so, nor is the Company or any
shareholder on notice of any material increase in any insurance premiums
relating to such policies. Neither the Company, nor each Shareholder nor any
doctor employee of the Company has any outstanding claims, settlements or
premiums owed against any insurance policy.
2.18 Employee Benefit Plans. Except as set forth on Exhibit 2.18
attached hereto, the Company has not established, does not maintain, and is not
obligated to make contributions to or under or otherwise participate in, (a) any
bonus or other type of compensation or employment plan, program, agreement,
policy, commitment, contract or arrangement (whether or not set forth in a
written document); (b) any pension, profit-sharing, retirement or other plan,
program or arrangement; or (c) any other employee benefit plan, fund or program,
including, but not limited to, those described in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). All such plans
listed on Exhibit 2.20 (individually "Company Plan," and collectively "Company
Plans") have been operated and administered in all material respects in
accordance with all applicable laws, rules and regulations, including without
limitation, ERISA, the Internal Revenue Code of 1986, as amended, Title VII of
the Civil Rights Act of 1964, as amended, the Equal Pay Act of 1967, as amended,
the Age Discrimination in Employment Act of 1967, as amended, and the related
rules and regulations adopted by those federal agencies responsible for the
administration of such laws. No act or failure to act by the Company has
resulted in a "prohibited transaction" (as defined in ERISA) with respect to the
Company Plans. No "reportable event" (as defined in ERISA) has occurred with
respect to any of the Company Plans. The Company has not previously made, is not
currently making, and is not obligated in any way to make, any contributions to
any multi- employer plan within the meaning of the Multi-Employer Pension Plan
Amendments Act of 1980. With respect to each Company Plan, either (i) the value
of plan assets (including commitments under insurance contracts) is at least
equal to the value of plan liabilities or (ii) the value of plan liabilities in
excess of plan assets is disclosed on the Balance Sheet. The Company has made
all required Form 5500 filings and required reporting with respect to the
Company Plans on a timely basis.
2.19 Adverse Agreements. The Company is not, and will not as of the
Closing Date, be a party to any agreement or instrument or subject to any
charter or other corporate restriction or any judgment, order, writ, injunction,
decree, rule or regulation that materially and adversely affects the condition
(financial or otherwise), operations, assets, liabilities, business or prospects
of the Company other than as disclosed in this Agreement including the Exhibits
attached hereto.
2.20 Compliance with Laws in General. The Company, the Shareholders
and to the best knowledge of the Shareholders, Company's doctor
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and licensed employees have complied with all applicable laws, rules,
regulations and licensing requirements, including, without limitation, the
Federal Environmental Protection Act, the Occupational Safety and Health Act,
the Americans with Disabilities Act and any environmental laws and medical waste
laws, and there exist no violations by the Company, any Shareholder or any
doctor or licensed employee of the Company of any federal, state or local law or
regulation. Neither the Company nor any Shareholder has received any notice of a
violation of any federal, state and local laws, regulations and ordinances
relating to the operations of the business and assets of the Company and no
notice of any pending inspection or violation of any such law, regulation or
ordinance has been received by the Company or any Shareholder.
2.21 Medicare and Medicaid Programs. The Company and each doctor and
licensed employee of the Company is qualified for participation in the Medicare
and Medicaid programs and is party to provider agreements for such programs
which are in full force and effect with no defaults having occurred thereunder.
The Company, each Shareholder and each doctor and licensed employee of the
Company has timely filed all claims or other reports required to be filed with
respect to the purchase of services by third-party payors, and all such claims
or reports are complete and accurate, and there is no liability to any payor
with respect thereto. There are no pending appeals, overpayment determinations,
adjustments, challenges, audit, litigation or notices of intent to open Medicare
or Medicaid claim determinations or other reports required to be filed by the
Company, any Shareholder and any licensed employee of the Company. Neither the
Company, nor any Shareholder, nor to the knowledge of the Shareholders, any
doctor or licensed employee of the Company has been convicted of, or pled guilty
or nolo contendere to, patient abuse or negligence, or any other Medicare or
Medicaid program related offense and none has committed any offense which may
serve as the basis for suspension or exclusion from the Medicare and Medicaid
programs.
2.22 Fraud and Abuse. The Company and all persons and entities
providing professional services for the Company's business have not, to the
knowledge of the Company and the Shareholders, engaged in any activities which
are prohibited under ss. 1320a-7b or ss. 1395nn of Title 42 of the United States
Code or the regulations promulgated thereunder, or related state or local
statutes or regulations, or which are prohibited by rules of professional
conduct, including, but not limited to, the following: (a) knowingly and
willfully making or causing to be made a false statement or representation of a
material fact in any application for any benefit or payment; (b) knowingly and
willfully making or causing to be made any false statement or representation of
a material fact for use in determining rights to any benefit or payment; (c) any
failure by a claimant to disclose knowledge of the occurrence of any event
affecting the initial or continued right to any benefit or payment on its own
behalf or on behalf of another, with the intent to fraudulently secure such
benefit or payment; and (d) knowingly and willfully soliciting or receiving any
remuneration (including any kickback, bribe or rebate) directly or indirectly,
overtly or covertly, in cash or in kind, or offering to pay or receive such
remuneration (i) in return for referring an individual to a person for the
furnishing or arranging for the furnishing of any item or service for which
payment may be made in whole or in part by Medicare or Medicaid, or (ii) in
return for purchasing, leasing or ordering or arranging for, or recommending,
purchasing, leasing or ordering any good, facility, service or item for which
payment may be made in whole or in part by Medicare or
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Medicaid, or (e) referring a patient for designated health services to or
providing designated health services to a patient upon referral from an entity
or person with which the doctor or an immediate family member has a financial
relationship, and to which no exception under ss.1395nn of Title 42 of the
United States Code applies.
2.23 No Untrue Representations. No representation or warranty by the
Company or any Shareholder in this Agreement, and no Exhibit or certificate
issued or executed by, or information furnished by, officers or directors of the
Company or any Shareholder and furnished or to be furnished to Purchaser
pursuant hereto, or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements or facts
contained therein not misleading.
2.24 Distributions and Repurchases. No distribution, payment or
dividend of any kind has been declared or paid by the Company on any of its
capital stock since the Balance Sheet Date. No repurchase of any of the
Company's capital stock has been approved, effected or is pending, or is
contemplated by the Board of Directors of the Company.
2.25 Ownership Interests of Interested Persons: Competitors. Neither
the Company, nor any of its directors, officers, or Shareholders (or members of
the family of any thereof) is, or within the last three years was, a party to
any contract, lease, agreement or arrangement, including, but not limited to,
any joint venture or consulting agreement with or has any financial interest in
any doctor, hospital, pharmacy, home health agency or other person or entity
which is in a position to make or influence referrals to, or otherwise generate
business for, the Company or to provide services, lease space, lease equipment
or engage in any other venture or activity with the Company or compete with the
Company other than as disclosed in this Agreement including the Exhibits
attached hereto.
2.26 All of the inventory reflected on the balance sheet or
thereafter acquired (and not subsequently sold in the ordinary course of
business) consist of items of a quality and quantity usable or saleable in the
ordinary course of business as first quality items (except obsolete or
discontinued inventory or except to the extent specifically reserved against),
valued in a manner consistent with past practice and, with respect to
after-acquired inventory, valued at prices at least equal to the lower of the
cost thereof or fair market value. The inventories and supplies of the Company
are at normal and adequate levels for the continuation of the Company s business
in the ordinary course. All work-in-progress can be completed for sale in the
ordinary course of business in accordance with the usual standards and practices
of the Company.
2.27 Certain Practices. Neither the Company nor, to the best
knowledge of the Shareholders, any of its officers, directors or stockholders
has, directly or indirectly, given or agreed to give any significant rebate,
gift or similar benefit to any supplier, customer, governmental employee or
other person who was, is or may be in a position to help or hinder the Company
(or assist in connection with any actual or proposed transaction) which could
subject the Company or Purchaser to any damage or penalty in any civil, criminal
or governmental action, other than as disclosed in this Agreement including the
Exhibits attached hereto.
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2.28 Environmental Matters. Except as set forth on Exhibit 2.29 or
other than as disclosed in this Agreement including the Exhibits attached
hereto, no event has occurred or condition exists or operating practice is being
employed that could give rise to any claim, action, order or award under any
environmental law or environmental permit. The Company is and the Company s
leased properties are in compliance with all environmental laws, except where
the noncompliance therewith has not had and would not have a material adverse
effect on the Company s business, operations, assets, liabilities or financial
condition.
2.29 Significant Customers and Suppliers. Set forth on Exhibit 2.28
is a list of the ten largest customers and ten largest suppliers of the Company
for the most recent twelve month period, together with the amount of sales or
purchases attributable to such customers or suppliers expressed in dollars. No
customer or supplier which was significant to the Company during the past three
years has terminated, materially reduced or threatened to terminate or
materially reduce its purchases from or provision of products or services to the
Company, as the case may be.
2.30 Broker's Fee. No person has or will have, as a result of the
execution, delivery and performance by the Shareholders of this Agreement, any
right, interest or claim against or upon Purchaser or any other person for any
commission, fee or other compensation as finder or broker or in any similar
capacity.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Shareholders as follows:
3.1 Corporate Existence: Good Standing. Purchaser is a corporation
duly organized and existing and in good standing under the laws of the State of
Delaware, respectively.
3.2 Power and Authority. Purchaser has corporate power to execute,
deliver and perform this Agreement and all agreements and other documents
executed and delivered by it pursuant to this Agreement, and has taken all
actions required by law, its Certificate or Articles of Incorporation, its
Bylaws or otherwise, to authorize the execution, delivery and performance of
this Agreement and such related documents. The execution and delivery of this
Agreement and the agreements related hereto executed and delivered pursuant to
this Agreement do not and, subject to the receipt of consents to assignments of
leases and other contracts where required and the receipt of regulatory
approvals where required, the consummation of the transactions contemplated
hereby will not, violate any provision of the Certificate or Articles of
Incorporation or Bylaws of Purchaser or any provisions of, or result in the
acceleration of, any obligation under any mortgage, lien, lease, agreement
instrument, order, arbitration award, judgment or decree to which Purchaser is a
party or by which either of them is bound, or violate any restrictions of any
kind to which Purchaser is subject.
3.3 No Untrue Representations. No representation or warranty by
Purchaser in this Agreement, and no Exhibit or certificate issued by officers or
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directors of Purchaser and furnished or to be furnished to the Company or the
Shareholders pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements or facts contained therein not misleading.
SECTION 4. COVENANTS OF THE SHAREHOLDERS
The Shareholders, jointly and severally, agree that between the date
hereof and the Closing Date:
4.1 Consummation of Agreement. The Company and the Shareholders
shall use their best efforts to cause the consummation of the transactions
contemplated hereby in accordance with their terms and conditions.
4.2 Business Operations. The Company and the Shareholders shall
operate the Company's business in the ordinary course. The Company shall not
enter into any lease, contract, indebtedness, commitment, purchase or sale or
acquire or dispose of any capital asset except in the ordinary course of
business. The Company and the Shareholders shall use their best efforts to
preserve the business and assets of the Company intact and shall not take any
action that would have an adverse effect on the business or assets of the
Company, including without limitation, any action the primary purpose or effect
of which is to generate or preserve cash; provided that the Company may continue
to operate in the ordinary course of business. The Company and the Shareholders
shall use their best efforts to preserve intact the relationships with payors,
customers, suppliers, patients and others having significant business relations
with the Company. The Company shall collect its receivables and pay its trade
payables in the ordinary course of business. The Company shall not introduce any
new method of management, operations or accounting.
4.3 Access and Notice. The Company and the Shareholders shall permit
Purchaser and their authorized representatives access to, and make available for
inspection, all of the assets and business of the Company and all of its assets,
including employees, customers and suppliers and permit Purchaser, and its
authorized representatives to inspect and make copies of all documents, records
and information with respect to the business or assets of the Company as
Purchaser or its representatives may request. The Company and the Shareholders
shall promptly notify Purchaser in writing of (a) any notice or communication
relating to a default or event that, with notice or lapse of time or both, could
become a default, under any contract, commitment or obligation to which the
Company is a party, and (b) any adverse change in the Company's business,
financial condition or the conditions of its assets.
4.4 Approvals of Third Parties and Permits and Consents. The Company
and the Shareholders shall use their best efforts to secure all necessary
approvals and consents of third parties to the consummation of the transactions
contemplated hereby, including consents described on Exhibit 2.5. The Company
and the Shareholders shall use their best efforts to obtain all licenses,
permits, approvals or other authorizations required under any law, rule,
regulation, or otherwise for the consummation of the transactions contemplated
hereby. Following the Closing Date and at the expense of the Shareholders, the
Shareholders shall, upon Purchaser's request, exercise their best efforts to
obtain
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any such approvals, consents, permits, licenses or authorizations which have not
been obtained on or prior to the Closing Date.
4.5 Acquisition Proposals. The Company and the Shareholders shall
not, and shall use their best efforts to cause the Company's employees, agents
and representatives not to, initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any proposal or
offer, including without limitation, any proposal or offer to the Shareholders,
with respect to a merger, acquisition, consolidation or similar transaction
involving, or the purchase of all or any significant portion of the assets or
any equity securities of the Company or engage in any negotiations concerning,
or provide any confidential information or data to, or have any discussions
with, any person relating to such proposal or offer, and the Company and the
Shareholders will immediately cease any such activities, discussions or
negotiations heretofore conducted with respect to any of the foregoing.
4.6 Employee Matters. The Shareholders shall not, without the prior
written approval of Purchaser, except as required by law, increase the cash
compensation of any Shareholder or other employee or an independent contractor
of the Company, adopt, amend or terminate any compensation plan, employment
agreement, independent contractor agreement, employee policies and procedures or
employee benefit plan, take any action that could deplete the assets of any
employee benefit, or fail to pay any premium or contribution due or file any
report with respect to any employee benefit plan or take any actions with
respect to its employees or employee matters without prompt written notice
thereof to the Purchaser or which might have a material adverse effect on the
Company, its business, assets or prospects.
4.7 Distributions and Repurchases. No distribution, payment or
dividend of any kind will be declared or paid by the Company, nor will any
repurchase of any of the Company's capital stock be approved or effected.
4.8 Requirements to Effect Transaction. The Company and each
Shareholder shall use their best efforts to take, or cause to be taken, all
actions necessary to effect the transaction contemplated hereby under applicable
law, including without limitation the filing with the appropriate government
officials of all necessary documents in form approved by counsel for the parties
to this Agreement.
4.9 Voting of Shares. Each Shareholder agrees that until the earlier
of the Closing Date or the termination of this Agreement, each such Shareholder
shall vote all shares of Company common stock owned by the Shareholders at any
meeting of the stockholders of the Company or take action by written consent for
adoption of this Agreement, as hereby amended, and in favor of the transaction
contemplated hereby and any other transactions contemplated by this Agreement,
and against any action, omission or agreement which would impede or interfere
with, or have the effect of discouraging, the transaction contemplated hereby.
4.10 Accounting and Tax Matters. The Company will not change in any
material respect the accounting methods or practices followed by the Company
(including any material change in any assumption underlying, or any method of
calculating, any bad debt, contingency or other reserve), except as may
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be required by generally accepted accounting principles. The Company will not
make any material tax election except in the ordinary course of business
consistent with past practice, change any material tax election already made,
adopt any tax accounting method except in the ordinary course of business
consistent with past practice, change any tax accounting method, enter into any
closing agreement, settle any tax claim or assessment or consent to any tax
claim or assessment or any waiver of the statute of limitations for any such
claim or assessment. The Company will duly, accurately and timely (without
regard to any extensions of time) file all returns, information statements and
other documents relating to taxes of the Company required to be filed by it, and
pay all taxes required to be paid by it, on or before the Closing Date.
The following provisions shall govern the allocation of
responsibility as between the Purchaser and the Shareholders for certain tax
matters following the Closing Date:
(a) The Purchaser and the Shareholders shall cooperate
fully, as and to the extent reasonably requested by the other, in connection
with the filing of returns and other forms required to be filed with respect to
any taxes, fees, levies, duties, tariffs, imposts and other charges of any kind
imposed by any government or taxing authority ("Taxes") and as to any audit,
litigation or other proceeding with respect to Taxes. Such cooperation shall
include the retention and (upon the other s reasonable request) the provision of
records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided. The Shareholders and the Purchaser agree (i) to retain all
books and records with respect to matters relating to Taxes for each taxable
period until the expiration of the statute of limitations (and, to the extent
notified by the Purchaser or the Shareholders, any extensions thereof) of the
respective taxable periods, and to abide by all record retention agreements
entered into with any taxing authority, and (ii) to give the other reasonable
written notice prior to transferring, destroying or discarding any such books
and records and, if the party so requests, to allow the other party to take
possession of such books and records.
(b) The Purchaser and the Shareholders further agree, upon
reasonable request, to use their reasonable best efforts to obtain any
certificate or other document from any governmental authority or any other
person as may be necessary to mitigate, reduce or eliminate any Tax imposed
(including, but not limited to, with respect to the transactions contemplated
herein).
4.11 Conversion Transaction. On or prior to the Closing Date, the
Shareholders and the Company shall file with the Secretary of State of Louisiana
an amendment to and/or a restatement of the Company's Articles of Incorporation
and shall take such other action as may be necessary to convert itself into a
general business corporation.
4.12 Survival of Covenants. All covenants contained in this Agreement
(regardless of whether expressly labeled as such) shall survive the Closing.
4.13 Covenant Not to Compete. Each of the Shareholders agrees that,
during the period commencing on the Closing Date and ending on the third
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anniversary of the Closing Date, the Shareholder will not, without the prior
written consent of Purchaser:
(a) for itself or on behalf of any other person, directly or
indirectly, either as principal, partner, agent, independent contractor,
stockholder, consultant, representative or in any other capacity, own, manage,
operate or control, or otherwise in any manner have a financial interest in any
business which is directly or indirectly competitive with the Company or the
business as conducted by Purchaser located anywhere in the state(s) of Louisiana
and Mississippi (the "Restricted Territory"), except that nothing contained
herein shall preclude the Shareholders from purchasing or owning securities of
any such business if such securities are publicly traded, and provided that such
holdings do not exceed two (2%) percent of the issued and outstanding securities
of any class of securities of such business; or
(b) without limiting the generality of the preceding clause
(a), either individually or on behalf of or through any third party, solicit,
divert or appropriate or attempt to solicit, divert or appropriate, for the
purpose of competing with the Company or the business as conducted by Purchaser
or any present or future parent, subsidiary or other affiliate of Purchaser
which is engaged in a similar business as Purchaser, any existing or prospective
customer, partner, supplier, licensee or licensor of Purchaser located within
the Restricted Territory; or
(c) either individually or on behalf of or through any third
party, directly or indirectly, employ, or knowingly permit any company or
business organization directly or indirectly controlled by it to employ, or
solicit, entice or persuade or attempt to solicit, entice or persuade to leave
the services of Purchaser or any such parent, subsidiary or affiliate for any
reason, any other employees of or consultants to Purchaser.
For the purposes of this section, the engaging in a business
activity shall be deemed "competitive" with the business as conducted by
Purchaser if such activity, directly or indirectly, relates to the business of
distributing and selling eyeglasses and contact lenses and providing related
optical and optometric prescriptions, goods and services to persons with vision
disorders, or the business of participating in any manner in the delivery of
vision corrective or refractive services (including, without limitation, photo
refractive keratectomy) to persons with vision disorders.
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Each Shareholder recognizes and acknowledges that (i) the types
of competition which are prohibited by this Agreement are narrow and reasonable
in relation to the types of business activities in which the Shareholder is or
may engage and (ii) the specific but broad geographical scope of the provisions
of this section is reasonable, legitimate and fair to the Shareholder in light
of Purchaser s need to conduct its business in a large geographic area in order
to have a sufficient base to make its business profitable and in light of the
limited restrictions on the type of business activities prohibited herein
compared to the types of business activities in which the Shareholder is or may
engage.
Each Shareholder hereby expressly acknowledges that any breach
or threatened breach of any of the terms and/or conditions set forth in this
section will result in substantial, continuing and irreparable injury to
Purchaser. Therefore, the Shareholder hereby agrees that, in addition to any
other remedy that may be available to Purchaser, Purchaser shall be entitled to
injunctive relief, specific performance or other equitable relief by a court of
appropriate jurisdiction in the event of any breach or threatened breach of the
terms of this Agreement. Furthermore, in addition to the remedies Purchaser may
seek and obtain pursuant to this section, the period during which the covenants
contained herein apply shall be extended by any and all periods during which the
Shareholder shall be found by a court of competent jurisdiction to have been in
violation of the covenants contained in this Agreement.
SECTION 5. COVENANTS OF PURCHASER
Purchaser agrees that between the date hereof and the Closing Date:
5.1 Consummation of Agreement. Upon the satisfaction of Purchaser's
conditions precedent, Purchaser shall cause the consummation of the transactions
contemplated hereby in accordance with their terms and provisions.
5.2 Approvals of Third Parties and Permits and Consents. Purchaser
shall use its best efforts to secure all necessary approvals and consents of
third parties to the consummation of the transactions contemplated hereby.
SECTION 6. PURCHASER CONDITIONS PRECEDENT
The obligations of Purchaser hereunder are subject to the fulfillment at
or prior to the Closing Date of each of the following conditions:
6.1 Representations and Warranties. The representations and
warranties of the Shareholders contained herein shall have been true and correct
in all respects when initially made and shall be true and correct in all
respects as of the Closing Date.
6.2 Covenants and Conditions. The Shareholders shall have performed
and complied with all covenants and conditions required by this Agreement to be
performed and complied with by the Shareholders prior to the Closing Date, in
form and substance reasonably satisfactory to Purchaser.
6.3 Proceedings. No action, proceeding or order by any court or
governmental body shall have been threatened orally or in writing, asserted,
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instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
6.4 No Material Adverse Change. No material adverse change in the
condition (financial or otherwise), operations, assets, liabilities, business or
prospects of the Company shall have occurred since the Balance Sheet Date.
6.5 Approval of the following named lessors of the properties to the
following subsidiaries to the consummation of the transactions contemplated
hereby:
Vision Oakwood, Inc.
Vision CBD, Inc.
Vision Esplanade, Inc.
Vision Tomorrow, Inc.
6.6 The Company shall have given notice of the transactions
contemplated hereby by notices prepared by the Purchaser to the reasonable
satisfaction of the Shareholders to the lessors of the following subsidiaries:
Vision Plaza, Inc.
Vision Horizon, Inc.
Vision Lake Forest, Inc.
Vision Southland, Inc.
Vision Xxxxxxx Square, Inc.
Vision Uptown, Inc.
Vision Frontiers, Inc.
Vision Unlimited Laboratories, Inc.
Vision Universe, Inc.
Vision Mississippi, Inc.
Orleans Spectacle Corp.
6.7 Employment Arrangements. The Company and Shareholders will
cooperate with Purchaser and any professional corporation or association created
at the suggestion of Purchaser for the purpose of employing all of the
professional employees of the Company.
6.8 Consents and Approvals: Succession Court Approval. The
Shareholders shall have obtained the approval of the court in the Succession of
Xxx X. Xxxxxxxxx, bearing proceeding number 96-13287 of the Civil District Court
for the Parish of Orleans, State of Louisiana, to sell the Company stock at a
price not to exceed the purchase price.
6.9 Closing Deliveries. Purchaser shall have received all documents,
duly executed in form and substance satisfactory to Purchaser and its counsel,
referred to in Section 8.1.
6.10 Debt and Receivables. There shall be no indebtedness,
receivables or payables between the Company and its shareholders or affiliates
and the Company shall not have any liabilities, including indebtedness,
guaranties and capital leases, that are not disclosed in Section 2.16.
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6.11 Purchaser shall have received written resignations from any
officer or director of the Company whose resignation is requested by Purchaser,
each such resignation to be effective as of the Closing date.
6.12 Dissenting Shares. No holder of the Company's common stock shall
have demanded appraisal for the shares of Company common stock held by such
holder in accordance with the Louisiana Business Law.
6.13 No Material Change in Working Capital. There shall have been no
material change in the Company s Working Capital.
6.14 No Material Adverse Economic Event. There shall not have
occurred (i) any general suspension of trading in, or limitation on prices for,
or other extraordinary event affecting securities on NASDAQ, (ii) a declaration
of a banking moratorium or any suspension of payments in respect of banks in the
United States, (iii) any material limitation (whether or not mandatory) by any
governmental authority on, or any other event which might affect the extension
of credit by, lending institutions generally or (iv) in the case of any of the
foregoing existing on the date of execution hereof, a material acceleration or
worsening thereof.
6.15 The receipt of an opinion letter of Xxxxxxx & Xxxxxx, L.L.C.
substantially in the form annexed hereto as Annex 2 as modified by a letter
dated June 26, 1997 from Xxxx X. Xxxxxxxxxx, Xx. to Xxxxxxx Xxxxxx-Xxxxx.
SECTION 7. THE COMPANY'S AND THE SHAREHOLDERS' CONDITIONS PRECEDENT
The obligations of the Company and the Shareholders hereunder are
subject to fulfillment at or prior to the Closing Date of each of the following
conditions:
7.1 Representations and Warranties. The representations and
warranties of Purchaser contained herein shall have been true and correct in all
respects when initially made and shall be true and correct in all respects as of
the Closing Date.
7.2 Covenants and Conditions. Purchaser shall have performed and
complied with all covenants and conditions required by this Agreement to be
performed and complied with by Purchaser prior to the Closing Date.
7.3 Proceedings. No action, proceeding or order by any court or
governmental body shall have been threatened orally or in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
7.4 Closing Deliveries. The Company shall have received all
documents, duly executed in form satisfactory to the Company and its counsel,
referred to in Section 8.2.
SECTION 8. CLOSING DELIVERIES
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8.1 Deliveries of the Company and the Shareholders. At or prior to
the Closing, the Company and the Shareholders shall deliver to Purchaser the
following, all of which shall be in a form satisfactory to counsel to Purchaser:
(a) stock certificates evidencing the Shareholders'
ownership of the Shares together with blank stock powers executed by such
Shareholders;
(b) certificates of each Shareholder, dated as of the
Closing Date, (i) as to the truth and correctness of the representations and
warranties of each Shareholder contained herein; (ii) as to the performance of
and compliance by each Shareholder with all covenants contained herein; and
(iii) certifying that all conditions precedent of each Shareholder to the
Closing have been satisfied;
(c) a certificate, dated within 20 days of the Closing Date,
of the Secretary of the State of Louisiana establishing that the Company is in
existence and is in good standing to transact business in its state of
incorporation, and a certificate, dated within 20 days of the Closing Date, of
the Secretary of State of the State of Mississippi establishing that the Vision
Mississippi, Inc. is in existence and is in good standing to transact business
in Mississippi;
(d) all authorizations, consents, approvals, permits and
licenses referred to in Sections 2.3 and 2.5;
(e) the resignations of the directors and officers of the
Company as requested by Purchaser; and
(f) such other instruments and documents as reasonably
requested by Purchaser to carry out and effect the purpose and intent of this
Agreement.
8.2 Deliveries of Purchaser. At or prior to the Closing, Purchaser
shall deliver to the Company the following, all of which shall be in a form
satisfactory to counsel to the Company and the Shareholders:
(a) the Consideration;
(b) a copy of the resolutions of the Board of Directors of
Purchaser authorizing the execution, delivery and performance of this Agreement
and all related documents and agreements each certified by the Secretary as
being true and correct copies of the original thereof;
(c) certificates of the President of Purchaser, dated as of
the Closing Date, (i) as to the truth and correctness of the representations and
warranties of Purchaser contained herein; (ii) as to the performance of and
compliance by Purchaser with all covenants contained herein; and (iii)
certifying that all conditions precedent of Purchaser to the Closing have been
satisfied;
(d) a certificate of the Secretary of Purchaser certifying
as to the incumbency of the directors and officers of Purchaser and as to the
signatures of such directors and officers who have executed documents delivered
at the Closing on behalf of Purchaser;
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(e) certificates, dated within 20 days of the Closing Date,
of the Secretary of the State of Delaware establishing that Purchaser is in
existence and is in good standing to transact business in the State of Delaware;
(f) such other instruments and documents as reasonably
requested by the Company or Shareholders to carry out and effect the purpose and
intent of this Agreement.
SECTION 9. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
9.1 Nature and Survival. All statements contained in this Agreement
or in any Exhibit attached hereto, any agreement executed pursuant hereto, and
any certificate executed and delivered by any party pursuant to the terms of
this Agreement, shall constitute representations and warranties. All such
representations and warranties, and all representations and warranties expressly
labeled as such in this Agreement shall survive the date of this Agreement and
the Closing Date for a period of two (2) years following the Closing Date (the
"Second Anniversary"), except that (i) all claims, if any, asserted in writing
on or prior to the Second Anniversary identified as a claim for indemnification
pursuant to this section 9.1 shall survive until finally resolved and satisfied
in full, and (ii) claims, if any, that (A) are based upon fraud by any party
hereto or (B) assert liability for any taxes imposed on or with respect to
income shall survive for the full period of the applicable statute of
limitations, and until finally resolved and satisfied in full if asserted on or
prior to such date.
The Shareholders shall jointly and severally indemnify, defend,
and hold harmless Purchaser and its affiliates, and the officers, directors and
employees of the foregoing, and their successors and assigns from, against and
with respect to any claim, liability, obligation, loss, damage, assessment,
judgment, cost and expense (including, without limitation, reasonable attorneys
, consultants and accountants fees and costs and expenses reasonably incurred in
investigating, preparing, defending against or prosecuting any claim, action or
proceeding) of any kind or character (collectively, "Damages"), arising out of
or in any manner incident, relating or attributable to:
(a) any inaccuracy in any representation or breach of
warranty of the Shareholders contained in this Agreement or in any related
document;
(b) any failure by the Shareholders to perform or observe,
or to have performed or observed, in full, any covenant, agreement or condition
to be performed or observed by them under this Agreement; or
(c) the Shareholder's ownership of the shares or any
uninsured third party claims arising from matters occurring prior to the
Closing.
In the event of the occurrence of any event which any party
asserts is an indemnifiable event pursuant to this section 9.1, the party
claiming indemnification (the "Indemnified Party") shall provide prompt notice
to the party required to provide indemnification (the "Indemnifying Party"),
specifying in reasonable detail the facts and circumstances (to the extent then
known) with respect to such claim and the basis for which indemnification is
available
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hereunder. If such event involves the claim of any third party, the Indemnifying
Party shall have the right to control the defense or settlement of such claim;
provided that:
(i) the Indemnified Party shall be entitled to participate
in the defense of such claim at its own expense,
(ii) the Indemnifying Party shall obtain the prior written
approval of the Indemnified Party (which approval shall not be unreasonably
withheld or delayed) before entering into any settlement of such claim if,
pursuant to or as a result of such settlement, an order, injunctive or other
non-monetary relief would be imposed against the Indemnified Party,
(iii) the Indemnifying Party shall not be entitled to control
(but shall be entitled to participate at its own expense in the defense of), and
the Indemnified Party shall be entitled to have sole control over, any claim
which seeks an order, injunction or other non-monetary relief against the
Indemnified Party; provided that (1) the Indemnified Party shall provide written
notice to the Indemnifying Party of its election to assume control over the
defense of such claim pursuant to this clause (iii) and (2) the Indemnified
Party shall obtain the prior written approval of the Indemnifying Party (which
approval shall not be unreasonably withheld or delayed) before entering into any
settlement of such claim, and/or
(iv) if the Indemnifying Party is entitled but fails to
assume control over the defense of a claim as provided in this section 9.1, the
Indemnified Party shall have the right to defend such claim, provided further
that the Indemnified Party shall obtain the prior written approval of the
Indemnifying Party (which approval shall not be unreasonably withheld or
delayed) before entering into any settlement of such claim if, pursuant to or as
a result of such settlement, injunctive or other non-monetary relief would be
imposed against the Indemnifying Party.
In the event that the Indemnifying Party shall be obligated to
indemnify the Indemnified Party pursuant to this section 9.1, the Indemnifying
Party shall, upon payment of such indemnity in full, be subrogated to all rights
of the Indemnified Party with respect to the claim to which such indemnification
relates.
However, the Shareholders shall not be required to indemnify any
Indemnified Party for any item of damage unless the aggregate amount of such
item of damage, together with the aggregate amount of all prior damages of such
party, exceeds $25,000.00, in which event the Indemnified Party shall be
entitled to indemnification for damages in excess of $25,000.00.
SECTION 10. TERMINATION
This Agreement may be terminated:
(a) at any time by mutual agreement of all parties;
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(b) at any time prior to the Closing by Purchaser if any material
representation or material warranty of the Company or any Shareholder contained
in this Agreement or in any certificate or other document executed and delivered
by the Company or any Shareholder pursuant to this Agreement is or becomes
untrue or breached in any material respect or if the Company or any Shareholder
fails to comply in any material respect with any covenant or agreement contained
herein, and any such misrepresentation, noncompliance or breach is not cured,
waived or eliminated within twenty (20) days after receipt of written notice
thereof;
(c) at any time prior to the Closing by the Shareholders if any
material representation or material warranty of Purchaser contained in this
Agreement or in any certificate or other document executed and delivered by
Purchaser pursuant to this Agreement is or becomes untrue or breached in any
material respect or if Purchaser fails to comply in any material respect with
any covenant or agreement contained herein and such misrepresentation,
noncompliance or bread is not cured, waived or eliminated within twenty (20)
days after receipt of written notice thereof;
SECTION 11. MISCELLANEOUS
11.1 Notices. Any communications required or desired to be given
hereunder shall be deemed to have been properly given if sent by hand delivery,
or by facsimile and overnight courier, to the parties hereto at the following
addresses, or at such other address as either party may advise the other in
writing from time to time:
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If to the Purchaser:
Vision Plaza Corp.
c/o Cambridge Eye Associates, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. XxxXxxxxx
with a copy of each notice directed to Purchaser to:
Xxxxx Xxxxxx
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to the Shareholders:
Xxx. Xxxxxxx Xxxxxxxxx
One River Place, Apt. 4H
0 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
with a copy to:
Xxxx X. Xxxxxxxxxx, Xx.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
All such communications shall be deemed to have been delivered on the date of
hand delivery or on the next business day following the deposit of such
communications, properly addressed and postage prepaid with the overnight
courier.
11.2 Further Assurances. Each party hereby agrees to perform any
further acts and to execute and deliver any documents which may be reasonably
necessary to carry out the provisions of Agreement.
11.3 Each Party to Bear Costs. Each of the parties to this Agreement
shall pay all of the costs and expenses incurred by such party in connection
with the transactions contemplated by this Agreement, whether or not such
transactions are consummated.
11.4 Public Disclosures. Except as otherwise required by law, no
party to this Agreement shall make any public or other disclosure of this
Agreement or the transactions contemplated hereby without the prior consent of
the other parties. The parties to this Agreement shall cooperate with respect to
the form and content of any such disclosures.
11.5 GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH
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THE LAWS OF THE STATE OF LOUISIANA AND APPLIED WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAWS PRINCIPLES.
11.6 Captions. The captions or headings in this Agreement are made
for convenience and general reference only and shall not be construed to
describe, define or limit the scope or intent of the provisions of this
Agreement.
11.7 Integration of Exhibits. All Exhibits attached to this Agreement
are integral parts of this Agreement as if fully set forth herein, and all
statements appearing therein shall be deemed disclosed for all purposes and not
only in connection with the specific representation in which they are explicitly
referenced.
11.8 ENTIRE AGREEMENT/AMENDMENT. THIS INSTRUMENT, INCLUDING ALL
EXHIBITS ATTACHED HERETO, CONTAINS THE ENTIRE AGREEMENT OF THE PARTIES AND
SUPERSEDES ANY AND ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS BETWEEN THE PARTIES,
WRITTEN OR ORAL, WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY.
11.9 Counterparts. This Agreement may be executed in several
counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts shall together constitute and be one and the same
instrument.
11.10 Binding Effect/Assignment. This Agreement shall be binding on,
and shall inure to the benefit of, the parties hereto, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No party may assign any right or
obligation hereunder without the prior written consent of the other parties;
provided, however, that Purchaser may assign its rights and obligations
hereunder to an affiliate, which assignment shall not release Purchaser of its
obligations hereunder.
11.11 No Rule of Construction. The parties acknowledge that this
Agreement was initially prepared by Shareholders, and that all parties have read
and negotiated the language used in this Agreement. The parties agree that,
because all parties participated in negotiating and drafting this Agreement, no
rule of construction shall apply to this Agreement which construes ambiguous
language in favor of or against any party by reason of that party's role in
drafting this Agreement.
11.12 Costs of Enforcement. In the event that Purchaser, on the one
hand, or the Company or the Shareholders, on the other hand, file suit in any
court against any other party to enforce the terms of this Agreement against the
other party or to obtain performance by it hereunder, the prevailing party will
be entitled to recover all reasonable costs, including reasonable attorneys'
fees, from the other party as part of any judgment in such suit. The term
"prevailing party" shall mean the party in whose favor final judgment after
appeal (if any) is rendered with respect to the claims asserted in the
Complaint. "Reasonable attorneys' fees" are those reasonable attorneys' fees
actually incurred in obtaining a judgment in favor of the prevailing party.
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11.13 Amendments: Waivers. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all the parties
hereto. Any waiver of the terms and conditions hereof must be in writing, and
signed by the parties hereto. The waiver of any of the terms and conditions of
this Agreement shall not be construed as a waiver of any other terms and
conditions hereof.
11.14 Severability. If any provision of this Agreement shall be found
to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable and this Agreement shall be construed and
enforced as if such provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect. In lieu of such
provision, there shall be added automatically as part of this Agreement, a
provision as similar in its terms to such provision as may be possible and be
legal, valid and enforceable.
11.15 Xxxxx Xxxxxxxx. The Company may grant Xxxxx Xxxxxxxx an
employment contract for a term of not more than two years and for compensation
not less than that which he is presently earning upon terms and conditions
reasonably satisfactory to Purchaser.
11.16 Xxxx Xxxxxxxxx. The Company may grant Xxxx Xxxxxxxxx a
consulting contract for a term of two years at an annual compensation of
$35,000.00 per year, which contract shall require consulting services of not
less than twenty hours per month. This compensation shall be paid quarterly upon
receipt of appropriate invoices.
11.17 Closing. The Closing shall take place at the offices of Xxxxxxx
& Xxxxxx, L.L.C. in New Orleans, Louisiana. If the Closing has not been
consummated prior to July 30, 1997, the Closing shall be at 10:00 a.m. on July
31, 1997.
11.18 Deposit. Upon the execution of this Agreement by the Sellers,
the Purchaser becomes obligated to deposit immediately with Xxxxxxx & Xxxxxx,
L.L.C. Fifty Thousand and No/100 ($50,000.00) Dollars, and failure to do shall
be considered a breach of this Agreement. This deposit is to be non-interest
bearing and shall be placed in any federally insured banking or savings and loan
institution without responsibility on the part of Xxxxxxx & Xxxxxx, L.L.C. in
case of failure or suspension of such institution. In the event that Purchaser
fails to comply with this Agreement within the time specified, Sellers shall
have the right to declare the deposit ipso facto forfeited without formality
beyond tender of title to Purchaser. The forfeiture of said deposit shall be
deemed as liquidated damages and not as a penalty for Purchaser's failure to
comply with this Agreement. In the event that Purchaser complies with this
Agreement within the time specified, the deposit shall be credited against the
purchase price if the sale is consummated and if the sale is not consummated, it
shall be returned to the Purchaser.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
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PURCHASER:
VISION PLAZA CORP.
BY: /s/ Xxxx X. XxxXxxxxx
--------------------------------------------
XXXX X. XXXXXXXXX
VICE PRESIDENT
SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------------
XXXXXXX X. XXXXXXXXX, AS TESTAMENTARY
EXECUTRIX OF THE SUCCESSION OF XXX X. XXXXXXXXX
/s/ Xxxxx Xxxxx
------------------------------------------------
XXXXX XXXXX
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INDEX TO EXHIBITS
Exhibit Description
1.2(a) Promissory Note - Xxx. Xxxxxxx X. Xxxxxxxxx
1.2(b) Promissory Note - Xxxxxx Xxxx
1.2(c) Agreement- $63,000
2.1 Capitalization of the Company
2.3 Permits and Licenses
2.5 Consents
2.6 Financial Statements
2.7 Leases
2.9 Real and Personal Property; Encumbrances
2.10 Patents and Trademarks; Names
2.11(a) through
2.11(c) Directors and Officers; Payroll Information
2.12 Litigation
2.13 Contracts (other than Leases)
2.14 Changes Since Balance Sheet Date
2.17 Insurance Policies
8.1(h) Shareholder Release
ANNEX I Consideration
ANNEX II Legal Opinion
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ANNEX I
CONSIDERATION
The consideration to be received by the Shareholders pursuant to the
Agreement (the "Consideration") is $1,832,916.02 cash payable to Xxx. Xxxxxxx X.
Xxxxxxxxx, in her capacity as the Testamentary Executrix of the Succession of
Xxx X. Xxxxxxxxx (Civil District Court No. 96-13287) and $168,000.00 cash
payable to Xxxxx Xxxxx.
As additional consideration, the Purchaser shall cause the payment
of the consulting fees due Xxxx Xxxxxxxxx in the amount of $35,000.00 per year
for two years pursuant to the terms of section 11.16.
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