SECURITIES EXCHANGE AGREEMENT
This Securities Exchange Agreement ("Exchange Agreement") is made as of the 2nd
day of April, 1999, by and between Seal Holdings Corporation, a Delaware
corporation ("Seal"), and M. Xxx Xxxxxx, M.D. ("Holder"), who is the holder of
all of the outstanding shares of common stock, par value $.001 of OH, Inc., a
Florida corporation ("OHI").
R E C I T A L S:
A. Seal and OHI have entered into that certain Agreement and Plan of
Exchange (the "Agreement") dated as of December 21st, 1998.
B. Pursuant to the terms of the Agreement, it was contemplated that,
among other things, Seal would exchange shares of its Class A Common Stock, $.20
par value ("Seal Common Stock") and shares of its Series A Preferred Stock,
$.001 par value ("Seal Preferred Stock"), for all the issued and outstanding
shares of common stock, par value $.001 of OHI (the "OHI Shares").
C. This Exchange Agreement is being executed contemporaneous with, and
is conditioned upon, the closing of the transactions contemplated by the
Agreement (the "Exchange Offer Condition").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Term. Subject to Section 4 hereto, the term of this Exchange
Agreement shall be for the period commencing as of the date hereof and
continuing until such time as Holder is no longer a holder of any interest in
the Seal Shares (as hereinafter defined).
2. Exchange of Seal Shares. Seal and Holder agree that Seal does hereby
exchange 10,318,419 shares of the Seal Common Stock and 2,000,000 shares of the
Seal Preferred Stock (collectively, the "Seal Shares") with Holder for the OHI
Shares owned by Holder.
3. Conditions for Effectiveness of the Exchange Agreement. This
Exchange Agreement shall not be effective until the satisfaction or waiver by
Holder of the Exchange Offer Condition. If the Exchange Offer Condition is not
satisfied by April 30, 1999, this Exchange Agreement shall be null and void.
4. Closing. The closing of the exchange of Seal Shares for OHI Shares
described in Section 2 hereof shall occur at the offices of Proskauer Rose LLP
in Boca Raton, Florida (the "Closing") upon the satisfaction of the Exchange
Offer Condition. At the Closing, Seal will issue to Holder (i) a stock
certificate representing Holder's ownership of 10,318,419 shares of Seal Common
Stock and (ii) a stock certificate representing Holder's ownership of 2,000,000
shares of Seal Preferred Stock.
5. Authority to Transfer Shares. Holder does hereby irrevocably
constitute and appoint Seal as attorney to transfer the OHI Shares tendered
hereby (as evidenced by the tendered stock certificates, if any) on the books of
OHI with full power of substitution in the premises.
6. Representations and Warranties by Seal and Holder.
(a) Seal Representations and Warranties.
(i) Stock. The Seal Shares when issued pursuant to the terms of
this Exchange Agreement, will be duly authorized, validly issued, fully paid and
nonassessable.
(ii) Representations in Agreement. Seal hereby restates in its
entirety each of the representations and warranties set forth in Article 3 of
the Agreement, affirms that they are true as of the date hereof and agrees that
Holder shall be entitled to rely thereon.
(iii) Knowledge and Experience. Seal has such knowledge and
experience in financial and business matters that it, together with its
representatives and advisors, if any, is capable of evaluating the merits and
risks of an investment in the OHI Shares.
(iv) Securities Restrictions on Transfer. Seal acknowledges and
understands that the OHI Shares have not been registered under the Securities
Act of 1933, as amended (the "1933 Act") or under any state securities laws and
agrees that the OHI Shares cannot be resold unless they are subsequently
registered under the 1933 Act or pertinent state securities acts unless an
exemption from such registration is available; that Seal agrees not to resell or
otherwise dispose of (collectively, "Transfer") all or any part of the OHI
Shares except as permitted by law.
(b) Holder Representations and Warranties.
(i) Title. Holder is the owner, beneficially and of record, of
all the OHI Shares exchanged hereby. Except as set forth on Schedule 4.2 of the
Agreement, the OHI Shares are free and clear of all liens, encumbrances,
security agreements, equities, options, claims, charges, and restrictions.
Holder has full power to transfer the OHI Shares exchanged hereby to Seal
without obtaining the consent or approval of any other person, entity or
governmental authority. The OHI Shares being exchanged hereby constitute all of
the outstanding shares of common stock of OHI.
(ii) Applicable Securities Laws. Holder intends that the state
securities laws of the State of Florida, together with the federal securities
laws, govern this transaction.
(iii) Knowledge and Experience. Holder has such knowledge and
experience in financial and business matters that Holder, together with its
representatives and advisors, if any, is capable of evaluating the merits and
risks of an investment in the Seal Shares.
(iv) Securities Restrictions on Transfer. Holder acknowledges
and understands that the Seal Shares have not been registered under the 1933 Act
or under any state securities laws and agrees that the Seal Shares cannot be
resold unless they are subsequently registered under the 1933 Act or pertinent
state securities acts unless an exemption from such registration is available;
that Holder agrees not to Transfer all or any part of the Seal Shares except as
permitted by law; and that the Transfer of the Seal Shares is restricted by the
terms of this Exchange Agreement.
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(v) Execution of the Exchange Agreement. Holder has the full
right, power, and authority to enter into and to perform this Exchange Agreement
and all other agreements, certificates, and documents executed or delivered, or
to be executed or delivered, by Holder in connection herewith. This Exchange
Agreement has been duly authorized, executed, and delivered by Holder, and is
the legal, valid, and binding obligation of Holder, enforceable in accordance
with its terms.
7. Transfer of Shares; Legend. Each certificate representing Seal
Shares issued pursuant to the provisions hereof shall bear substantially the
legend set forth below:
"THESE SHARES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE FEDERAL
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
NEITHER THE SHARES REPRESENTED BY THIS CERTIFICATE NOR ANY INTEREST
THEREIN MAY BE OFFERED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR QUALIFICATION OR EXEMPTION THEREFROM UNDER SAID ACT OR
STATE SECURITIES LAWS OR THE RULES AND REGULATIONS PROMULGATED
THEREUNDER OR AN OPINION OF COUNSEL ACCEPTABLE TO COUNSEL FOR SEAL THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH LAWS.
Each certificate representing shares of Seal Preferred Stock issued pursuant to
the provisions hereof shall also bear substantially the legend set forth below:
A STATEMENT OF THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
OF SUCH PREFERENCES AND/OR RIGHTS WILL BE FURNISHED TO EACH SHAREHOLDER
UPON REQUEST AND WITHOUT CHARGE FROM THE OFFICE OF THE SECRETARY OF THE
CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICE OF THE CORPORATION WHICH
AS OF THE DATE OF ISSUANCE OF THIS CERTIFICATE IS LOCATED AT 0000 XXXXX
XXXXX XXXXXXX, XXXXX 000, XXXX XXXXXXXXXX, XXXXXXX 00000."
8. Removal of Legend. The restrictions imposed by Section 7 herein
shall terminate as to some or all of the Seal Shares when:
(a) Such Seal Shares shall have been effectively registered
under the 1933 Act and any applicable state law and sold by the holder thereof
in accordance with such registration; or
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(b) Written opinions to the effect that such registration is no
longer required or necessary under any federal or state law or regulation or
governmental authority shall have been received from legal counsel for Seal.
Whenever the restrictions imposed by Section 7 herein shall terminate, as
provided above, any holder of such Seal Shares as to which such requirements
shall have terminated shall be entitled to receive from Seal, without expense to
such holder, a new stock certificate evidencing such Seal Shares not bearing the
restrictive legends set forth in Section 7.
9. Notices. All notices or other communications in connection with this
Exchange Agreement shall be in writing and shall be considered given when
personally delivered or when mailed by registered or certified mail, postage
prepaid, return receipt requested, or when sent via commercial courier or
If to Seal:
Seal Holdings Corporation
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & XxXxxxxx, LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
If to Holder:
M. Xxx Xxxxxx
c/o Lauderdale Holdings, Inc.
0000 X. Xxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, President
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
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With a copy to:
Proskauer Rose LLP.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxx, Esq.
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
10. Choice of Law. This Exchange Agreement and all transactions
contemplated by this Exchange Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Florida without
regard to principles of conflicts of laws.
11. Survival of Representations. All statements contained in any
certificate or instrument of conveyance delivered by or on behalf of the parties
pursuant to this Exchange Agreement or in connection with the transactions
contemplated hereby shall be deemed to be additional representations and
warranties of the parties making such disclosure. All representations and
warranties shall survive the Closing Date for a period of one (1) year.
12. Assignment. Neither this Exchange Agreement nor any of the rights
or obligations hereunder may be assigned by either party without the prior
written consent of the other parties hereto. Subject to the foregoing, this
Exchange Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, and no other person shall
have any right, benefit or obligation hereunder.
13. Entire Agreement; Amendments and Waivers. This Exchange Agreement,
together with all exhibits hereto, constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior
agreements, understanding, negotiations and discussions, whether oral or
written, of the parties. No supplement, amendment, modification or waiver of
this Exchange Agreement shall be binding unless executed in writing by the party
to be bound thereby. No waiver of any of the provisions of this Exchange
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
14. Invalidity. In the event that any one or more of the provisions
contained in this Exchange Agreement or in any other instrument referred to
herein shall for any reason be held to be invalid, illegal or unenforceable in
any respect, then such invalidity, illegality or unenforceability shall not
affect any other provision of this Exchange Agreement or any other such
instrument.
15. Further Assurances. The parties shall cooperate and take such
actions, and execute such other documents, at the Closing or subsequently, as
either may reasonably request in order to carry out the provisions or purpose of
this Exchange Agreement.
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16. Counterparts. This Exchange Agreement may be executed in one or
more counterparts, each one of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned has duly executed this
Exchange Agreement on the day set forth in the introductory paragraph.
"Holder"
/s/ M. Xxx Xxxxxx, M.D.
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Name: M. Xxx Xxxxxx, M.D.
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"Seal"
Seal Holdings Corporation, a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President, Treasurer & Secretary
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Exhibit "A"
Transfer and Assignment
(Common Stock)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, transfers, conveys
and delivers to Seal Holdings Corporation, a Delaware corporation ("Seal"), all
of shares of common stock of OH, Inc. and irrevocably constitutes and appoints
Seal as my attorney to transfer these shares on the books and records of the
Corporation, with full power of substitution.
Dated: , 199
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Name:
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