EXHIBIT 7.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as of April
28, 2000, by and among THERAPY LASERS, INC., a Nevada corporation ("Purchaser"),
XXXXXXX XXXXXXXXX, XXXXX XXXXXXXXX, XXXXXX XXXXX, AND XXXXXXX XXXXXX, who own
100% of the Common Stock, $ 0 par value, of Gulf Coast Fan & Light, Inc.
(collectively, the "Sellers"), and GULF COAST FAN & LIGHT, INC., a Texas
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Sellers are the owners of an aggregate of 400 shares of Common
Stock, $ 0 par value per share, of the Company, which comprises 100% of the
issued and outstanding shares of capital stock of the Company (the "Shares");
and
WHEREAS, Sellers wish to sell all of such Shares to Purchaser for the
purchase price and upon the terms and conditions hereinafter provided; and
WHEREAS, Purchaser wishes to acquire the Shares on such terms and
conditions;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
SECTION 1 - SALE AND PURCHASE OF THE SHARES
1.1 SALE AND PURCHASE; EFFECTIVE DATE. Sellers hereby agree to sell to
Purchaser on the Closing Date, as defined in Section 1.4 hereof, free and clear
of all security interests, liens and encumbrances, and Purchaser hereby agrees
to purchase from Sellers on the Closing Date, all of the Shares owned by
Sellers, which comprises all of the issued and outstanding capital stock of the
Company. The transactions provided for in this Agreement shall be effective as
of April 28, 2000 (the "Effective Date"), and all revenues and expenses incurred
and accruing from and after such date shall be deemed to be for the account of
Purchaser, save and except those expenses for which Sellers are responsible
under the terms of this Agreement and any expense incurred without Purchaser's
consent in violation of this Agreement which shall be for the account of Sellers
incurring such expense.
1.2 CONSIDERATION FOR SALE OF SHARES. Subject to the terms and conditions
hereof, in reliance on the representations, warranties, covenants and agreements
of Sellers contained herein, and in full consideration of the sale, assignment
and delivery of the Shares, Purchaser shall pay to Sellers (i) an aggregate of
3,500,000 shares of Common Stock of Purchaser and (ii) Promissory Notes in the
aggregate amount of $1,440,000, as follows:
(a) Within 5 days after the Closing Date, Purchaser shall deliver
certificates representing the following shares of Common Stock of
Purchaser:
(i) to Xxxxxxx Xxxxxxxxx, 3,255,000 shares;
(ii) to Xxxxx X. Xxxxxxxxx, Xx., 87,500 shares;
(vii) to Xxxxxx Xxxxx, 87,500 shares; and
(viii) to Xxxxxxx Xxxxxx, 70,000 shares.
(b)At Closing, Purchaser shall issue to the Sellers Promissory Notes
aggregating $1,440,000, which Notes are in the form attached hereto as Exhibit
"A" (such Notes being secured by the stock of the Company pursuant to the Stock
Pledge Agreement set forth as Exhibit "B" attached hereto) with such Notes being
in the following amounts:
(i) $1,000,000, 8% interest 10 year Note, with monthly payments of
$12,132.80, payable to Xxxxxxx Xxxxxxxxx, Xxxxx X. Xxxxxxxxx,
Xx., Xxxxxx Xxxxx, and Xxxxxxx Xxxxxx;
(ii) $390,000, 8% interest 5 year Note, with monthly payments of
$7,907.80, payable to Xxxxxxx Xxxxxxxxx, Xxxxx X. Xxxxxxxxx,
Xx., Xxxxxx Xxxxx, and Xxxxxxx Xxxxxx;
(iii) $50,000, 8% interest 3 year Note, with monthly payments of
$1,566.82, payable to Xxxxxxx Xxxxxxxxx, Xxxxx X. Xxxxxxxxx,
Xx., Xxxxxx Xxxxx, and Xxxxxxx Xxxxxx.
1.3 CLOSING AND CLOSING DATE. The closing of the sale and purchase of the
Shares ("Closing") shall take place at the offices of Xxxx & Sudan, LLP, on or
before April 28, 2000, or at such other location or on such later date as may be
agreed to in writing by Sellers and Purchaser ("Closing Date").
1.4 DELIVERIES AT THE CLOSING. At the Closing on the Closing Date, the
following deliveries shall be made:
1.4.1 DELIVERY OF SHARES. Sellers will deliver to Purchaser a certificate
or certificates representing all of the Shares, duly endorsed in blank by
Sellers or accompanied by duly executed stock powers in blank, in proper
form for valid transfer to Purchaser, with signatures guaranteed or
witnessed in a manner satisfactory to legal counsel for Purchaser.
1.4.2 DELIVERY OF THE CONSIDERATION. Purchaser will instruct its transfer
agent to deliver to Sellers, within 5 days after the Closing Date, the
certificates of Purchaser, and Purchaser will deliver on the Closing Date
the Promissory Notes described in Section 1.2.
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1.5.3 DELIVERY OF CERTIFICATES AND DOCUMENTS. Sellers, Purchaser, and the
Company will deliver any other certificates or documents required by this
Agreement.
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF SELLERS
A. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
Each of the Sellers, jointly and severally, hereby make the
representations and warranties contained in this Section 2, to Purchaser as of
the date hereof, and all such representations and warranties shall be true,
complete and correct as of the Closing Date, and shall survive the Closing Date:
2.1 OWNERSHIP OF SHARES. Sellers are the record and beneficial owners of
all of the issued and outstanding capital stock of the Company as set forth next
to his or her name on Schedule 2.1 attached hereto. The Shares are not subject
to, nor were they issued in violation of, any preemptive rights. Sellers own and
hold, and will on the Closing Date own, hold and pass on to Purchaser good and
valid title to the Shares, free and clear of all agreements, liens,
encumbrances, pledges, options, proxies, voting trusts, voting agreements,
charges or assessments of any kind whatsoever, and Sellers will have full right
and power to sell, assign, exchange, transfer and deliver the Shares to
Purchaser, as provided in this Agreement.
2.2 STOCKHOLDER AGREEMENTS. Sellers are not a party to and the Shares are
not subject to any other agreement relating to a right of first refusal with
respect to the purchase or sale of capital stock of the Company or any voting
agreement, proxy, shareholder agreement, voting trust, or any other agreement or
understanding with respect to the Shares.
2.3 CORPORATE ORGANIZATION, AUTHORIZATION, ETC. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Texas and has all requisite corporate power and authority to
conduct its business as it is now being conducted and to own or lease the
properties and assets it now owns or holds under lease; to the Sellers' best
knowledge, is duly qualified or licensed to do business and is in good standing
in every other state of the United States and other jurisdictions where the
character of its business or the nature of its properties make such
qualification or licensing necessary, other than those in which the failure to
be so qualified would not have a material adverse effect on the current
financial condition, business, or operations of the Company. The Company has
delivered to Purchaser true, correct and complete copies of the Articles of
Incorporation, as amended to date and certified by the Nevada Secretary of
State, and Bylaws, as amended to date, of the Company.
2.4 CAPITALIZATION. The authorized capital stock of the Company consists
of 100,000 authorized shares of Common Stock, $ 0 par value per share, of which
400 shares of Common Stock are issued and outstanding and no shares of Common
Stock are held in its treasury. All of such issued shares are validly issued,
fully paid and nonassessable. The Company does not have
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outstanding, and is not bound by, any subscriptions, options, warrants, calls,
commitments or agreements to issue any additional shares of its capital stock,
including any right of conversion or exchange under any outstanding security or
other instrument, and the Company is not obligated to issue any shares of its
capital stock for any purpose. There are no unsatisfied preemptive rights in
respect of the Company's capital stock.
2.5 DUE EXECUTION AND ENFORCEABILITY. The Company and the Sellers have
full power and authority to execute and deliver this Agreement and all other
agreements contemplated hereby, and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Sellers and by
the Company and constitutes the valid, binding and legally enforceable
obligation of Sellers and the Company, enforceable in accordance with its terms,
except to the extent that enforcement may be affected by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
enforcement of the rights and remedies of creditors generally and general
equitable principles.
2.6 APPROVAL OF TRANSACTIONS. Sellers, as the owners of 100% of the voting
stock of the Company, have or by the Closing will have (i) approved the
transactions and agreements herein to which the Company is a party, authorized
the officers and directors of the Company to take such actions as any of them
may deem appropriate in order to accomplish the transactions contemplated
hereby.
2.7 VALIDITY OF CONTEMPLATED TRANSACTIONS. Neither the execution and
delivery of this Agreement by the Company and Sellers nor the consummation of
the transactions contemplated hereby will violate, require any filing, consent
or approval under, be in conflict with, or constitute a default under (i) any
law, ordinance or governmental rule or regulation known to the Sellers to which
the Company or Sellers is subject, (ii) any judgment or order of any court or
any other governmental authority known to the Sellers which is applicable to the
Company or Sellers, or (iii) the Articles of Incorporation or Bylaws of the
Company. Such execution, delivery and consummation will not violate, be in
conflict with, or constitute a default under (with or without the giving of
notice or lapse of time, or both) any note, lease, loan agreement, or other
agreement, instrument, document, or understanding (written or oral) to which the
Company or the Sellers is a party or by which any of their properties or other
assets may be subject, except for any violations, conflicts or defaults which in
the aggregate would not materially hinder or impair the consummation of the
transactions contemplated hereby.
2.8 SUBSIDIARIES, AFFILIATES, ETC. The Company does not own any shares of
stock or other security of any corporation or any equity interest in a
partnership, joint venture or other business entity, and the Company does not
control any other corporation, partnership, joint venture or other business
entity by means of ownership, management contract or otherwise.
2.9 FINANCIAL STATEMENTS. Seller has delivered to Purchaser the most
recent unaudited annual balance sheet of the Company prepared by management (the
"December Balance Sheet"),
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which is as of December 31, 1999 (the "December Balance Sheet Date") and
Company's related unaudited income statement prepared by management for the
period then ended.
The financial statements referred to in Paragraph 2.9(a) have been prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved; and all of the financial
statements referred to in Paragraph 2.9 present fairly, in all material
respects, the financial positions to which they relate at the respective dates
thereof in a manner consistent with past practice, the related results of
operations for the periods therein referred to, and the related changes in
financial position for such periods. Except as and to the extent disclosed and
specifically reserved for or against in the December Balance Sheet or disclosed
in the notes thereto or as incurred by the Company in the ordinary course of
business (and not in violation of any representation, warranty or other term or
provision of this Agreement) since the date of the December Balance Sheet, the
Company has not incurred or become liable for and is not subject to any
liability or obligation of any kind, whether accrued, absolute, fixed,
contingent or otherwise, and whether due or to become due. There is no basis for
assertion against the Company of any material claim or liability of any nature
or amount which is not fully disclosed in the December Balance Sheet or in the
notes thereto. Except as set forth in such financial statements, there is no
oral or written guarantee, assurance or other credit maintenance arrangement by
the Company of any obligation of any person or entity for the borrowing of
money, for the payment of any monetary obligation of any nature whatsoever
(whether due or to become due), or for the performance of any obligation of any
nature whatsoever or otherwise.
2.10 PATENTS, TRADEMARKS, COPYRIGHTS, ETC.
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(a) "Proprietary Rights" shall mean all of the following items owned by
or licensed to the Company, and any and all corresponding rights
that, now or prior to Closing, may be secured by the Company
throughout the world: (i) patents, patent applications, patent
disclosures and inventions (whether or not patentable and whether or
not reduced to practice) and any reissue, continuation,
continuation-in-part, division, revision, extension or reexamination
thereof; (ii) trademarks, service marks, trade dress, logos, trade
names and corporate names together with all goodwill associated
therewith, copyrights registered or unregistered and copyrightable
works and mask works; (iii) all registrations, applications and
renewals for any of the foregoing; (iv) trade secrets and
confidential information (including, without limitation, ideas,
formulae, compositions, know-how, manufacturing and production
processes and techniques, research and development information,
drawings, specifications, designs, plans, proposals, technical data,
financial, business and marketing plans, and customer and supplier
lists and related information); (v) computer software and software
systems (including, without limitation, data, databases and related
documentation); (vi) other proprietary rights; (vii) licenses or
other agreements to or from third parties regarding the foregoing;
and (viii) all copies and tangible embodiments of the foregoing (in
whatever form or medium).
(b) The Company has delivered to Purchaser a complete and correct list
of: (i) all patented or registered Proprietary Rights and all
pending patent applications or other applications for registration
of Proprietary rights owned, filed or used by the Company, (ii) all
trade names and unregistered trademarks used by the Company, (iii)
all material unregistered copyrights, mask works, and computer
software owned or used by the Company, and (iv) all licenses or
similar agreements or arrangements to which the Company is a party
either as licensee or licensor for the Proprietary Rights, other
than temporary rights arising under consulting agreements with
customers of the Company related to specific consulting projects,
and licenses customarily required for use in connection with
pre-packaged consumer or personal computer software.
(c) The Company owns and possesses all right, title and interest in and
to, or has a valid and enforceable right to use, each of the
Proprietary Rights free and clear of all liens, and no claim by any
third party contesting the validity, enforceability, use or
ownership of any of the Proprietary Rights has been made, is
currently outstanding or to Sellers' knowledge is threatened, (ii)
the Proprietary Rights comprise all proprietary rights necessary for
the operation of the business of the Company as currently conducted,
and as currently proposed to be conducted, (iii) the loss or
expiration of any Proprietary Right or related group of Proprietary
Rights has not and would not result in a material adverse affect on
the Company, and no such loss or expiration is threatened or
pending, (iv) the Company has not received any notices of, nor is
the Company aware of any facts which indicate a
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likelihood of, any infringement or misappropriation by, or conflict
with, any third party with respect to any Proprietary Right
including, without limitation, any demand or request that the
Company license rights from a third party, (v) the Company has not
infringed, misappropriated or otherwise conflicted with any
proprietary rights of any third parties and the Sellers are not
aware of any infringement, misappropriation or conflict which shall
occur as a result of the continued operation of the Company's
business as currently conducted or as currently proposed to be
conducted, and (vi) the Proprietary Rights owned or licensed to the
Company have not been infringed, misappropriated or conflicted by
any third party.
(d) All of the Proprietary Rights are or shall be owned by, or licensed
to, the Company at the time of the Closing. The transactions
contemplated by this Agreement shall have no adverse effect on the
Company's right, title and interest in and to any of the Proprietary
Rights. The Company has not disclosed any of its trade secrets or
confidential information existing at the date of this Agreement to
any third party other than pursuant to a written confidentiality
agreement. The Company has taken all other commercially reasonable
actions to maintain and protect the Proprietary Rights and shall
continue to maintain and protect those rights prior to the Closing
so as to not adversely affect the validity or enforcement of such
Proprietary Rights. The owners of any Proprietary Rights licensed to
the Company have taken all necessary and desirable actions to
maintain and protect the Proprietary Rights which are subject to
such licenses.
(e) At the time of Closing, Purchaser will be entitled to all income,
royalties, damages and payments relating to any of the Proprietary
Rights due or payable to the Company at the Closing or thereafter,
including, without limitation, damages and payments for past,
present or future infringements or misappropriations of any
Proprietary Rights, and the right to xxx and recover for past
infringements or misappropriations of any Proprietary Rights.
2.11 REAL PROPERTY. The Company has delivered to Purchaser a legal
description of each parcel of real property owned by or leased to the Company,
together with either a true and correct survey or a substantially true and
correct plan of each parcel. All leases (if any) are valid and in full force,
and there does not exist any default or event that with notice or lapse of time,
or both, would constitute a default under any of these leases. The zoning (if
any) of each parcel of property owned or leased by the Company presently permits
the existing improvements and the business presently being conducted on such
parcel.
2.12 TITLE AND CONDITION OF PROPERTY. The Company has good and marketable
title to all property, assets and leasehold estates, real and personal, owned
and used in its business, subject to no mortgage, pledge, lien, conditional
sales agreement, encumbrance or charge, except for liens disclosed in writing by
the Company as securing specified liabilities (with respect to
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which no default exists) and except for statutory liens for taxes not yet due or
delinquent. There are no claims against the Company and Sellers are not aware of
any facts or circumstances which could reasonably be expected to lead to any
claims, which would if determined adversely to the Company result in a lien
against any of the assets or property of the Company. All buildings, structures,
and material equipment currently utilized in normal operations of the Company
are suitable for the purposes for which they are used, and are in good working
order and in reasonable repair, ordinary wear and tear excepted.
2.13 EMPLOYEE RELATIONS. There are no controversies pending or threatened
between the Company and any employee, former employee or job applicant of the
Company or any association or any group of current or former employees of the
Company, and the general relationship between the Company and its employees is
good. The Company has complied in all material respects with all laws applicable
to it relating to the employment of labor, including any provisions relating to
wages, hours, collective bargaining and the payment of social security and other
taxes.
2.14 TAX MATTERS. The Company has duly and timely filed all income,
excise, corporate, franchise, property, sales, payroll, withholding and other
tax returns and reports required to be filed by it as of the date hereof by the
United States of America or any state or any political subdivision thereof and
has paid or established adequate reserves for all taxes (including penalties and
interest) which have or may become due pursuant to such returns and any
assessments which have been received by it or otherwise. All such tax returns or
reports fairly reflect the taxes of the Company in all material respects for the
periods covered thereby. The Company is not delinquent in the payment of any
tax, assessment or governmental charge, there is no tax deficiency or
delinquency asserted against the Company and there is no unpaid assessment,
proposal for additional taxes, deficiency or delinquency in the payment of any
of the taxes of the Company that could be asserted by any taxing authority, nor
of any material violation of any federal, state, local or foreign tax law. No
Internal Revenue Service audit of the Company is pending or to the knowledge of
the Company threatened, and the results of any completed audits are properly
reflected in the Company's financial statements. The Company has not granted any
extension to any taxing authority of the limitation period during which any tax
liability may be asserted. The Company has committed no knowing or willful
violation of any federal, state, local or foreign tax laws. All monies required
to be withheld by the Company from employees or collected from customers for
income taxes, social security and unemployment insurance taxes and sales, excise
and use taxes, and the portion of any such taxes to be paid by the Company to
governmental agencies, have been collected or withheld and either paid to the
respective governmental agencies or set aside in accounts for such purpose, or
such monies have been approved, reserved against and entered upon the books of
the Company.
2.15 NO DEFAULTS UNDER CONTRACTS. All contracts, agreements, plans,
leases, licenses, certificates, insurance policies, permits and franchise
agreements listed in any schedule provided to Purchaser hereunder are valid and
in full force and effect, except to the extent disclosed in any schedule hereto.
The Company has not breached any material provision of, nor is in default in
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any material respect under the terms of, any such contract, agreement, lease,
license, or permit, and the Company is not in default in any material respect as
to its performance on any such contracts.
2.16 LITIGATION, DEFAULTS UNDER LAWS, ETC. The Company has complied in all
material respects with and is not in default under, any law, rule, permit,
regulation, ordinance, order, writ, injunction or court decree applicable to it.
The Company is not subject to any order, ruling, decree or judgment, having
continuing effect, of any court, arbitrator or governmental agency or
instrumentality. There are no claims, actions, suits, arbitrations,
investigations, disputes or other proceedings against the Company, pending or,
to the knowledge of the Sellers, threatened; and Sellers have no knowledge of
any factual basis existing that could reasonably be expected to result in any
such claim, action, suit, arbitration, investigation, dispute or other
proceeding.
2.17 NO CONSENTS REQUIRED. No consents are required by the Company in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein, or to avoid or prevent any
acceleration of maturity or performance under, or any default or breach of, or
any material adverse effect with respect to any indebtedness, contract, right,
franchise, permit or other privilege to which the Company is a party or by which
any of its assets are bound.
2.18 ABSENCE OF CHANGES. Except as disclosed by Sellers in this Agreement
or in any Schedule to this Agreement, since the December Balance Sheet Date,
there has been no material adverse change in the business, results of
operations, prospects, financial condition or liabilities (accrued, absolute,
contingent or otherwise), of the Company.
2.19 DISCLOSURE. No representation or warranty by Sellers in this
Agreement, nor in any exhibit or schedule delivered herewith, nor any statement
or certificate furnished or to be furnished by or on behalf of Sellers pursuant
to this Agreement or in connection with the consummation of the transactions
herein contemplated, contains, or will contain, any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements herein and therein not misleading. Notwithstanding any investigation
made at any time by or on behalf of Purchaser, and notwithstanding any actual or
implied knowledge or notice of any facts or circumstances which Purchaser may
have as a result of such investigation or otherwise, each Seller by his or her
execution and delivery of this Agreement acknowledges that the accuracy of such
representations, warranties, schedules, exhibits, statements and certificates
have been relied upon by Purchaser in entering into and in performing and
observing the obligations pursuant to this Agreement.
2.20 INVESTMENT REPRESENTATION. The Seller has no intention of selling the
Purchaser Common Stock or any interest therein in violation of the federal
securities laws or any applicable state securities laws. Prior to the date of
this Agreement, the Sellers have reviewed all information provided to it by
Purchaser and has had the opportunity to ask questions of and
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receive answers from representatives of Purchaser concerning Purchaser Common
Stock and to obtain certain additional information requested of Purchaser.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser makes the following representations and warranties to Sellers as
of the date hereof, and all such representations and warranties shall be true,
complete and correct as of the Closing Date, and shall survive the Closing Date:
3.1 DUE ORGANIZATION AND GOOD STANDING OF PURCHASER. Purchaser is a Nevada
corporation, duly organized, validly existing and in good standing under the
laws of the State of Nevada.
3.2 CORPORATE AUTHORIZATION. Purchaser has full power and authority to
enter into this Agreement. Neither the execution nor delivery of this Agreement
by Purchaser, nor Purchaser's performance hereunder will result in a violation
or breach of any term or provision, or constitute a default or accelerate the
performance required under, any indenture, mortgage, deed of trust, or other
contract or agreement to which Purchaser is a party or by which Purchaser is
bound or under any provision of its Certificate of Incorporation or Bylaws. The
execution, delivery and performance by Purchaser of this Agreement has been duly
authorized by the Board of Directors of Purchaser, and no further corporate
action is necessary on the part of Purchaser to make this Agreement valid and
binding upon Purchaser and enforceable in accordance with its terms.
3.3 NO CONFLICT. No provision exists in any article, document or
instrument to which Purchaser is a party or by which Purchaser is bound which
would be violated by consummation of the transaction as contemplated by this
Agreement.
3.4 GOVERNMENTAL AUTHORITIES AND CONSENTS. No consent, approval or
authorization of any governmental or regulatory authority or any other party or
person is required to be obtained by Purchaser in connection with its execution,
delivery and performance of this Agreement and the other agreements contemplated
hereby to which Purchaser is a party or the transactions contemplated hereby or
thereby.
3.5 LITIGATION. There are no actions, suits, proceedings, orders or
investigations pending or, to Purchaser's knowledge, threatened against or
involving the assets of Purchaser at law or in equity, or before or by any
federal, state, provincial, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, which
would adversely affect Purchaser's performance under this Agreement and the
other agreements contemplated hereby to which Purchaser is a party or the
consummation of the transactions contemplated hereby or thereby.
3.6 DISCLOSURE. No representation or warranty by Purchaser in this
Agreement, nor in any exhibit or schedule delivered herewith, nor any statement
or certificate furnished or to be
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furnished by or on behalf of Purchaser pursuant to this Agreement or in
connection with the consummation of the transactions herein contemplated,
contains, or will contain, any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements herein and
therein not misleading. Notwithstanding any investigation made at any time by or
on behalf of Sellers, and notwithstanding any actual or implied knowledge or
notice of any facts or circumstances which Sellers may have as a result of such
investigation or otherwise, of Purchaser by its execution and delivery of this
Agreement acknowledges that the accuracy of such representations, warranties,
schedules, exhibits, statements and certificates have been relied upon by
Sellers in entering into and in performing and observing the obligations
pursuant to this Agreement.
SECTION 4 - INDEMNIFICATION
4.1 INDEMNIFICATION BY SELLERS. Each of the Sellers hereby jointly and
severally covenant and agree that he will indemnify and hold harmless Purchaser
and the Company at all times from and after the date of this Agreement against
any loss, liability, damage or expense (including attorney's fees) which
Purchaser or the Company may suffer, sustain or become subject to as a result
of: (i) any breach of any representation or warranty, or nonfulfillment of any
covenant or agreement on the part of the Sellers under this Agreement, or from
any misrepresentation in or omission from any list, schedule, certificate, or
other instrument furnished or to be furnished to the Purchaser pursuant to the
terms of this Agreement; (ii) any and all debts, liabilities or obligations of
the Company, direct or indirect, fixed, contingent or otherwise, which exist at
or as of the Closing or which arise after the Closing but which are based upon
or arise from any act, omission, transaction, circumstance, sale of goods or
services, state of facts or other condition which occurred or existed on or
before the date of the Closing, due or payable, except to the extent expressly
disclosed, described, or set forth in this Agreement or any schedule,
certificate, exhibit, or other instrument furnished on the date of execution of
this Agreement by or on behalf of Sellers or the Company under this Agreement;
or as incurred in the ordinary course of business, as permitted by this
Agreement; (iii) any and all taxes, assessments, penalties, interest, or other
charges that may be due to state and local taxing authorities for real or
personal property taxes or any other taxes arising out of the Company's
operations prior to Closing or that should have been paid prior to Closing; and
(iv) all actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses, including, but not limited to attorneys' fees and court costs,
incident to any of the foregoing.
4.2 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify Sellers and
hold Sellers harmless from any and all claims, costs, damages, losses, costs,
expenses, obligations, liabilities, recoveries, suits, causes of action, and
deficiencies, including interest, penalties and reasonable attorneys' fees, that
it shall incur or suffer, which arise, result from or relate to any breach of,
or failure by the Purchaser to perform, any of its representations, warranties,
covenants or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by or on behalf of the
Purchaser under this Agreement.
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4.3 THIRD-PARTY CLAIMS. The indemnified party under Section 5.1 or 5.2
above (the "Indemnified Party") shall give the indemnifying party (the
"Indemnifying Party") written notice within thirty (30) days of receiving
written notice of any loss for which the Indemnified Party is entitled to
indemnification pursuant to this Section 5 (an "Indemnifiable Claim") resulting
from the assertion of liability by third parties. The Indemnifying Party shall
have thirty (30) days after receipt of notice to (i) cooperate in its defense or
(ii) assume its defense with experienced counsel, satisfactory to the
Indemnified Party. If, within thirty (30) days of receipt of notice of an
Indemnifiable Claim, the Indemnifying Party fails to cooperate or assume such
defense, the Indemnified Party shall have the right to undertake the defense,
compromise or settlement of such Indemnifiable Claim on behalf of and for the
account and risk of the Indemnifying Party.
4.4 OTHER CLAIMS. Indemnified Party shall give Indemnifying Party written
notice of any Indemnifiable Claim other than an Indemnifiable Claim resulting
from the assertion of liability by third parties. Indemnifying Party shall have
thirty (30) days following receipt of such notice to remedy the inaccuracy,
breach or misrepresentation on which the Indemnifiable Claim is based.
4.5 LIMITATIONS. The Indemnified Party hereunder shall not assert any
claims for indemnification under this Section 5 unless and until the cumulative
amount of any such claims exceed $2,500 in the aggregate, at which time all such
claims may be asserted.
4.7 TIME LIMITATION. The Indemnity obligations hereunder of Sellers for
breaches of the representations and warranties of this Agreement shall expire
two (2) years after Closing.
SECTION 5 - MISCELLANEOUS PROVISIONS
5.1 EXPENSES. Purchaser and Sellers shall each be responsible for their
own expenses in connection with this transaction, including but not limited to
legal expenses and out-of-pocket costs.
5.2 ASSIGNMENT. This Agreement and the rights of the parties hereunder may
not be assigned (except by operation of law) without the consent of the other
party (which consent shall not be unreasonably withheld), and shall be binding
upon and shall inure to the benefit of the parties hereto, the successors and
assigns of Purchaser and the heirs and legal representatives of Sellers.
5.3 ENTIRE AGREEMENT. This Agreement (including the schedules and exhibits
hereto) and the documents delivered pursuant thereto constitute the entire
agreement and understanding between Sellers and the Purchaser and the Company,
and supersede any prior agreement or understanding relating to the subject
matter of this Agreement. This Agreement may be modified and amended only by a
written instrument executed by all parties hereto.
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5.4 MULTIPLE COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original and all
of which together shall constitute but one and the same instrument.
5.5 REMEDIES CUMULATIVE. The rights and remedies granted herein are
cumulative and not exclusive of any other right or remedy granted herein or
provided by law.
5.6 NOTICE. Any notice or communication required or permitted hereunder
shall be in writing and shall be deemed received when personally received by the
relevant party or if sent by mail, on the third day following the date when
deposited in the United States mail, certified or registered mail, postage
prepaid, to the relevant party at its or his address indicated below:
(a) If to Purchaser or to the Company:
Therapy Lasers, Inc.
00000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
With copy to:
Xxxxxx X. Xxxxxxx
Xxxx & Sudan, LLP
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(b) If to any of the Sellers:
Xxxxxxx Xxxxxxxxx
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxx X. Xxxxxxxxx, Xx.
____________________
____________________
Xxxxxx Xxxxx
____________________
____________________
Xxxxxxx Xxxxxx
____________________
____________________
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Each party may change its, his or her address for purposes of this Section 5.6
by proper notice to the other parties.
5.7 CHOICE OF LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas.
5.8 SECTION AND SECTION HEADINGS. The section and section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
5.9 SEPARABILITY. If any covenant, condition or other provision of this
Agreement is declared by a court of last resort to be invalid and not binding on
Sellers and Purchaser, such declaration shall in no way effect the validity of
the other and remaining covenants, conditions and provisions of this Agreement.
5.10 WAIVER. No delay in the exercise of any right under this Agreement
shall waive such right.
5.11 SCHEDULES AND EXHIBITS. All Schedules and Exhibits attached to this
Agreement are hereby incorporated in and made a part of this Agreement.
5.12 PUBLIC NOTICES. Prior to the Closing, no public notices of this
Agreement, save and except any required by applicable laws, shall be made by
Purchaser or Sellers. All public notices prior to Closing must be mutually
agreed upon by Purchaser and Sellers.
IN WITNESS WHEREOF, the parties have executed this Agreement as of April
25, 2000.
"PURCHASER"
THERAPY LASERS, INC.
By:____________________________
Name: Xxxx X. Xxxx
Title: President
"SELLERS"
______________________________
Xxxxxxx Xxxxxxxxx
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______________________________
Xxxxx X. Xxxxxxxxx, Xx.
______________________________
Xxxxxx Xxxxx
______________________________
Xxxxxxx Xxxxxx
"COMPANY"
GULF COAST FAN & LIGHT, INC.
____________________________
Name:
Title:
EXHIBITS:
A--Promissory Notes
B--Stock Pledge Agreement
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