STOCK PURCHASE AGREEMENT
Exhibit 10.1
THIS STOCK PURCHASE AGREEMENT (the
“Agreement”) is
entered into as of July 28, 2008, by and between Implantable Vision, Inc., a
Utah corporation (the “Company”), and the
persons listed on Schedule A attached
hereto (each, an “Insider”, and
collectively the “Insiders”).
RECITALS
WHEREAS, the Insiders are the
record owners of 30,000,000 shares of the common stock, par value $0.001 per
share, of the Company (the “IVI Shares”);
and
WHEREAS, the Company owns all
of the issued and outstanding shares (the “BT Shares”) of the
common stock of BT Acquisitions, Inc., a Colorado corporation (“BT”);
and
WHEREAS, by virtue of the
closing of the transactions contemplated by the Assignment and Assumption
Agreement (the “Assignment
Agreement”) of even date herewith by and between the Company and BT, BT
will hold all of the assets and liabilities related to or useful in connection
with the Company’s implantable lens business; and
WHEREAS, the Insiders desire
to sell the IVI Shares to the Company, and the Company desires to purchase the
IVI Shares from the Insiders for retirement and cancellation in consideration
for the transfer by the Company to the Insiders of the BT Shares, upon the terms
and conditions set forth herein.
NOW, THEREFORE, in
consideration of the mutual promises and covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE
I
SALE
AND PURCHASE
Section
1.1 Purchase of the IVI
Shares. Upon the terms and subject to the conditions of this
Agreement, the Company hereby purchases the IVI Shares from the Insiders for
retirement and cancellation, and the Insiders hereby sell the IVI Shares to the
Company, in consideration of the transfer by the Company to the Insiders of the
BT Shares, in the proportions set forth on Schedule
A. On the date of the Closing (as defined below) (such date
being the “Closing
Date”), the Insiders shall deliver the IVI shares to the Company, and the
Company shall deliver to the Insiders the stock certificate representing the BT
Shares (the “BT
Certificate”), duly endorsed. The Company shall then cause the
books and records of the Company to show that the IVI Shares have been sold by
the Insiders and purchased by the Company for retirement and cancellation, and
the Insiders shall cause the books and records of BT to show that the BT Shares
have been transferred by the Company to the Insiders.
Section
1.2 Closing. The
closing of the transactions contemplated by this Agreement (the “Closing”) shall take
place at such place and time as the parties may agree in writing.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF XXXXXX
Each
Insider hereby represents and warrants to the Company, severally and not
jointly, as follows:
Section
2.1 Title to
Shares. Each Insider is the sole owner of the IVI Shares set
forth next to such Insider’s name on Schedule A, and such
IVI Shares are owned free and clear of any setoff, claim, restriction, pledge,
security interest, lien, encumbrance or any other charges (collectively “Encumbrances”).
Section
2.2 No Further
Interest. The IVI Shares constitute all of the Insiders’
ownership rights and interests in and to the Company. After the
Closing Date, the Insiders will not (i) own or possess any securities of, or
other right or interest in, the Company, or (ii) have any contractual or other
right to acquire any securities of, or other right or interest in, the
Company.
Section
2.3 Authorization and Binding
Obligation. Each Insider has all requisite right, power,
authority and capacity to execute and deliver this Agreement, to perform his
obligations hereunder and to carry out the transactions contemplated
hereby. This Agreement has been duly executed by each Insider and
constitutes the legal, valid, and binding obligation of each Insider enforceable
against him in accordance with its terms.
Section
2.4 No
Breach. The execution, delivery and performance of this
Agreement by each Insider does not conflict with, or result in any violation of
or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, suspension, cancellation or acceleration of any
obligation or to loss of a material benefit under, or result in the creation of
any Encumbrance of any kind under (i) any provision of any bond, mortgage,
indenture, agreement, deed of trust, license, lease, contract, commitment,
shareholder agreement, voting trust, loan or other agreement to which any
Insider is a party or by which any Insider or any of such Insider’s properties
or assets may be bound, or (ii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to any such Insider.
Section
2.5 Investigations. No
representations or warranties have been made to any Insider by the Company or
any agent, employee or affiliate of the Company and in making his decision to
sell the IVI Shares and to acquire the BT Shares, each Insider is relying solely
on his own independent investigation.
Section
2.6 Availability of
Documents. Each Insider acknowledges that all documents,
records, and books pertaining to the IVI Shares and the BT Shares have been made
available for inspection by him, his attorney, accountant, purchaser
representative and tax advisor.
Section
2.7 Tax
Considerations. The Company has not received an opinion of
counsel covering the tax implications in connection with the purchase of the IVI
Shares or the transfer of the BT Shares. Accordingly, the Insiders
are not relying on the Company with respect to the tax considerations of the
transactions contemplated by this Agreement and are relying on their own tax
adviser as to the specific tax consequences of such transactions.
Section
2.8 Opportunity to
Meet. Each Insider has had the opportunity to meet with
representatives of the Company and to have them answer any questions and provide
information regarding the finances, operations, business and prospects of the
Company and BT deemed relevant by each Insider, and all such questions have been
answered and requested information provided to each Insider’s full
satisfaction.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company hereby represents and
warrants to the Insiders as follows:
Section
3.1 Title to
Shares. The Company is the sole owner of the BT Shares, and
the BT Shares are owned free and clear of any Encumbrances.
Section
3.2 No Further
Interest. The BT Shares constitute all of the Company’s
ownership rights and interests in and to BT. After the Closing Date,
the Company will not (i) own or possess any securities of, or other right or
interest in, BT, or (ii) have any contractual or other right to acquire any
securities of, or other right or interest in, BT.
Section
3.3 Authorization and Binding
Obligation. The Company has all requisite right, power,
authority and capacity to execute and deliver this Agreement, perform its
obligations hereunder and to carry out the transactions contemplated
hereby. All acts and proceedings required to be taken by the Company
to authorize the execution, delivery and performance of this Agreement have been
duly and validly taken. This Agreement has been duly executed by the
Company and constitutes the legal, valid, and binding obligation of the Company
enforceable against the Company in accordance with its terms.
Section
3.4 No
Breach. The execution, delivery and performance of this
Agreement by the Company does not conflict with, or result in any violation of
or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, suspension, cancellation or acceleration of any
obligation or to loss of a material benefit under, or result in the creation of
any Encumbrance of any kind under (i) any provision of the Certificate of
Incorporation or By-laws of the Company, or (ii) any provision of any bond,
mortgage, indenture, agreement, deed of trust, license, lease, contract,
commitment, shareholder agreement, voting trust, loan or other agreement to
which the Company is a party or by which it or any of its properties or assets
may be bound, or (iii) any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Company.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 Notices. Any
notice required by this Agreement shall be in writing, and shall be deemed to be
duly given when sent by facsimile transmission, delivered by overnight courier
or mailed by certified mail, return receipt requested, with a copy sent by first
class mail, to the addresses set forth above or to such other address as either
party shall designate in writing from time to time or to the fax numbers set
forth herein, as the case may be. The addresses set forth below for
the respective parties shall be the places where notices shall be sent, unless
written notice of a change of address is given.
If to the
Company:
___________________
___________________
Attention:
With a
copy to:
______________________
______________________
______________________
Attention:
Fax
No.:
If to the
Insiders:
Xxxxxxx
Xxxxxxx
00000
Xxxxxx Xxxx
Xxxxx
Xxxxxxx, XX 00000
Fax:
000-000-0000
Section
4.2 Governing Law: Jurisdiction
and Venue. This Agreement shall be
governed by and construed and enforced in accordance with the internal laws of
the State of New York, without giving effect to such State’s principles
governing conflicts of law. The courts of the State of New York in
New York County, and the United States District Court for the Southern District
of New York shall have exclusive jurisdiction over any dispute or controversy
arising under or in connection with this Agreement and, by execution and
delivery of this Agreement, each of the parties hereby submits to the
jurisdiction of those courts, including, but not limited to, the in personam and subject
matter jurisdiction of those courts, waives any objection to such jurisdiction
on the grounds of venue or forum non conveniens, the
absence of in personam
or subject matter jurisdiction and any similar grounds, and irrevocably agrees
to be bound by any judgment rendered thereby in connection with this
Agreement.
Section
4.3 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original but all of which together shall constitute but one and the same
instrument.
Section
4.4 Entire
Agreement. This Agreement and the Assignment Agreement
together constitute the entire understanding among the parties with respect to
the subject matter hereof, and no party shall be liable or bound to the other in
any manner by any warranties, representations or covenants except as
specifically set forth herein and therein. Any agreement,
discussions, or negotiations among the parties prior to the date hereof with
respect to the transactions contemplated by this Agreement is superseded by this
Agreement and the Assignment Agreement, and the parties hereto expressly waive
strict compliance with any provisions contained therein.
Section
4.5 Third Party
Rights. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective executors, administrators,
heirs, successors and assigns of the parties. Except as expressly
provided herein, nothing in this Agreement, express or implied, is intended to
confer upon any party, other than the parties hereto, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
Section
4.6 Amendment or Waiver of
Agreement. The provisions of this Agreement may not be amended
or waived except by a written instrument signed by the Company and all of the
Insiders. The failure of any party to insist upon strict performance
of any of the provisions of this Agreement shall not be construed as a waiver of
any subsequent default.
Section
4.7 Further
Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use all reasonable efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable, under applicable laws and regulations or
otherwise, to fulfill its obligations under this Agreement and to
consummate the transactions contemplated by this Agreement.
Section
4.8 Severability. A
determination that a provision or part of any provision of this Agreement is
invalid or unenforceable shall not affect the remaining parts or provisions of
this Agreement that shall continue in full force and effect.
Section
4.9 Acknowledgement. Each
Insider does hereby acknowledge and agree that, assuming the closing of the
transactions contemplated by this Agreement and the Assignment Agreement, any
and all liabilities owing to each such Insider by the Company as of the date of
this Agreement have been assumed by BT and thus are no longer liabilities of the
Company, and does hereby agree that such Insider shall hereafter look solely to
BT, and not to the Company, for satisfaction of such liabilities.
[remainder
of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the date first written
above.
|
By:/s/
Xxxxx Xxxxxxx
|
||
|
Name:
Xxxxx Xxxxxxx
|
||
|
Title:
President and Chief Financial Officer
|
||
|
INSIDERS:
|
||
|
/s/
Xxxx Xxxxxx
|
||
|
Name:Xxxx
Xxxxxx
|
||
|
KAVOURIA,
LLC
|
||
|
By:/s/
Xxxxxxx Xxxxxxx
|
||
|
Name:Xxxxxxx
Xxxxxxx
|
||
|
Title:
Managing Member
|
||
|
/s/
Xxxxxx Xxxxxxx
|
||
|
Name:
Xxxxxx Xxxxxxx
|
||
|
XXXXXXX
FAMILY LLC
|
||
|
By:
/s/ Xxxxx Xxxxxxx
|
||
|
Name:
Xxxxx Xxxxxxx
|
||
|
Title:
Managing Partner
|
||
|
ROZY
VENTURES
|
||
|
By:
/s/ Xxxxxxx Xxxxxxx
|
||
|
Name:
Xxxxxxx Xxxxxxx
|
||
|
Title:
Managing Member
|
||
|
/s/
Xxxxx Xxxxx
|
||
|
Name:
Xxxxx Xxxxx
|
||
|
/s/
Igor Valyunin
|
||
|
Name:
Igor Valyunin
|
SCHEDULE
A
|
Name
|
#
of IVI Shares
To
Be Purchased
|
#
of BT Shares
To
Be Acquired
|
||||||
|
Xxxx
Xxxxxx
|
2,000,000 | |||||||
|
Kavouria,
LLC
|
2,000,000 | |||||||
|
Xxxxxx
Xxxxxxx
|
3,521,963 | |||||||
|
Rozakis
Family LLC
|
3,500,000 | |||||||
|
Rozy
Ventures II
|
3,044,703 | |||||||
|
Xxxxx
Xxxxx
|
8,666,667 | |||||||
|
Igor
Valyunin
|
7,266,667 | |||||||
|
Total:
|
30,000,000 | |||||||
