Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
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This Agreement this 11th day of May 2004 by and among Lasik
Acquisition Corp., a New York corporation and wholly owned subsidiary of Parent
("Buyer"); Lasik America Inc., a Nevada corporation ("Parent"); Salus Holding,
Inc., a New York corporation (the "Company"); Eyemakers, Inc., a Nevada
corporation and sole shareholder of the Company ("Eyemakers"); and Icon Veneto
S.r.l., a company formed under the laws of Italy ("Icon Veneto")
RECITALS
A. The respective Boards of Directors of each of the Company and Icon
Veneto have approved and declared advisable the transfer of all of the issued
and outstanding shares of the common stock of IGEA SALUS S.r.l., an company
formed under the laws of Italy ("Salus") to the Company (the "Stock Purchase")
for the consideration of 10,000,000 shares of common stock, $0.001 par value, of
Parent ("Parent Common Stock"), and certain other consideration as provided
herein.
A. The respective Boards of Directors of each of the Company,
Eyemakers, Buyer and Parent have approved and declared advisable the merger of
the Company with and into Buyer (the "Merger") and approved the Merger upon the
terms and subject to the conditions set forth in this Agreement, whereby all of
the issued and outstanding share of the common stock, $.001 par value, of the
Company (a "Company Share" or, collectively, the "Company Shares"), will be
converted into 2,000,000 shares of common stock, $0.001 par value, of Parent
Common Stock, and certain other consideration as provided herein.
B. The respective Boards of Directors of Buyer, Parent, Eyemakers,
Icon Veneto and the Company have determined that the Merger and the Stock
Purchase is in furtherance of and consistent with their respective long-term
business strategies and is fair to and in the best interests of their respective
stockholders.
C. It is intended that, for federal income tax purposes, the Merger
shall qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder (the "Code");
D. For financial accounting purposes, it is intended that the Merger
will be accounted for as a "purchase";
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
The Merger; Closing; Effect of Merger
SECTION 1.1 The Merger. Upon the terms and subject to the conditions
set forth in this Agreement and in accordance with the New York General Business
Law, as amended (the "NYBCL") at the Effective Time, the Company shall be merged
with and into Buyer and the separate corporate existence of the Company shall
thereupon cease. Buyer shall be the surviving corporation in the Merger
(sometimes hereinafter referred to as the "Surviving Corporation"), and the
separate corporate existence of Buyer with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the merger,
except as set forth herein. The Merger shall have the effects specified in the
NYBCL.
SECTION 1.2 Closing. Subject to the terms and conditions of this
Agreement, the closing of the Merger and the consummation of the other
transactions contemplated hereby (the "Closing") shall take place at the offices
of Xxxxx & Xxxxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on May 15,
2004 at 10:00 a.m. local time (or at such other date, time and place as the
parties hereto may agree).
SECTION 1.3 Effective Time. On the date of Closing, the Company and
Buyer will cause a Certificate of Merger (the "New York Certificate of Merger")
to be executed, acknowledged and filed with the Secretary of State of New York
as provided in Sections 902 and 904 of the NYBCL. The Merger shall become
effective at the time when the New York Certificate of Merger has been filed
with the Secretary of State of New York or, if otherwise agreed by the Company
and Buyer, such later date or time as is established by the New York Certificate
of Merger (the "Effective Time").
SECTION 1.4 Certificate of Incorporation. The certificate of
incorporation of Buyer as in effect immediately prior to the Effective Time
shall be the certificate of incorporation of the Surviving Corporation (the
"Charter"), until duly amended as provided therein or by applicable law.
SECTION 1.5 By-Laws. The by-laws of Buyer in effect immediately prior
to the Effective Time shall be the by-laws of the Surviving Corporation (the
"By-Laws"), until thereafter amended as provided therein or by applicable law.
SECTION 1.6 Directors. The directors of the Company immediately prior
to the Effective Time shall, from and after the Effective Time, be directors of
the Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Charter and the By-Laws. As of the Effective Time, the
authorized number of directors comprising the Board of Directors of Parent shall
consist of at least three (3) and not more than five (5) individuals. Four (4)
individuals shall be elected to the Board Directors of Parent at the Effective
Time, one of whom initially shall be Xxxxxx Xxxxxxxxx, one of whom initially
shall be Xxxxxx Xxxxxxxxx, one of whom initially shall be Xxxxxx X. Xxxx, and
the other of whom shall be appointed by Xxxxxx X. Xxxx. Xxxxxx X. Xxxx shall be
the Chairman of the Board and the Chairman of the Board is entitled to one vote
in connection with any matter brought before the Board of Directors.
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SECTION 1.7 Officers. The officers of the Company immediately prior to
the Effective Time shall, from and after the Effective Time, be the officers of
Buyer until their successors have been duly elected or appointed and qualified
or until their earlier death, resignation or removal in accordance with the
Charter and the By-Laws. At the Effective Time, Xxxxxx X Xxxx is hereby
appointed as Chairman of the Board and Chief Executive Officer of the Parent.
Xxxxxx Xxxxxxxxx is hereby appointed as President and Chief Operating Officer of
the Parent.
SECTION 1.8 Effect on Capital Stock. At the Effective Time, as a
result of the Merger and without any action on the part of the holder of any
capital stock of Buyer.
(i) Merger Consideration. The Company shares issued and
outstanding immediately prior to the Effective Time shall be converted into, and
become exchangeable for 2,000,000 validly issued, fully paid and nonassessable
shares of Parent Common Stock (the "Parent Merger Shares" and the "Merger
Purchase Price"), which shall represent 14.1% percent of the issued and
outstanding ordinary shares of Parent;
(ii) Stock Purchase Consideration. All of the issued and
outstanding shares of Salus immediately prior to the Effective Time shall be
sold, conveyed, assigned, leased, transferred and delivered by Icon Veneto to
the Company for the consideration of 10,000,000 validly issued, fully paid and
nonassessable shares of Parent Common Stock (the "Parent Purchase Shares" and
the "Stock Purchase Price" collectively with the Parent Merger Shares and the
Merger Purchase Price, the "Parent Shares" and the "Purchase Price"), which
shall represent 70.4% percent of the issued and outstanding ordinary shares of
Parent;
(iii) At the Effective Time, all Company Shares shall be
canceled and the Company shall cease to exist, and each certificate (a
"Certificate") formerly representing any Company Shares shall thereafter
represent only the right to receive the shares of Parent Shares into which such
Company Shares have been converted; and
(iv) Valuation of Parent Shares. It is agreed that the value
of each Parent Share at the Effective Time shall be fixed at $1.00 U.S. Dollars.
SECTION 1.9 Exchange of Certificates for Shares.
(a) Exchange. At Closing, Parent shall deliver or cause to be
delivered to Eyemakers certificates representing Parent Merger Shares into which
the Company Shares that Eyemakers owns are to be converted. At Closing, Parent
shall deliver or cause to be delivered to Icon Veneto certificates representing
Parent Purchase Shares for the Stock Purchase;
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(b) Adjustments of Conversion Number. In the event that Parent
changes the number of shares of Parent Common Stock, issued and outstanding
prior to the Effective Time as a result of a reclassification, stock split
(including a reverse split), dividend or distribution, recapitalization, merger
(other than the Merger, Stock Purchase or the cancellation of options previously
granted by the Company), subdivision, or other similar transaction with a
dilutive effect, or if a record date with respect to any of the foregoing shall
occur prior to the Effective Time, the conversion number shall be equitably
adjusted.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND EYEMAKERS
The Company, Icon Veneto and Eyemakers, jointly and severally,
represent, warrant and covenant to Buyer and Parent as follows and acknowledge
that Buyer and Parent are relying upon such representations and warranties in
connection with the Contemplated Transactions (as hereinafter defined):
SECTION 2.1 Capitalization. The authorized capital stock of the
Company consists of 5,000,000 shares of common stock of which 1,000,000 of
common stock shares are issued and outstanding. The Company has 4,000,000 shares
of common stock in its treasury. All of the issued and outstanding shares of
common stock are held by Eyemakers. The Company does not and, at the Closing,
the Company will not, have outstanding any capital stock or other securities or
any rights, warrants or options to acquire securities of the Company or any
convertible or exchangeable securities and, other than Buyer pursuant to this
Agreement, no person has or, at Closing will have, any right to purchase or
otherwise acquire any securities of the Company. There are, and at Closing there
will be, no outstanding obligations of the Company to repurchase, redeem or
otherwise acquire any securities of the Company. All of the Company Shares are,
and at Closing will be, duly authorized, duly and validly issued, fully paid and
non-assessable, and none were issued in violation of any preemptive rights,
rights of first refusal or any other contractual or legal restrictions of any
kind.
SECTION 2.2 Title to the Shares. Eyemakers is the beneficial owner and
holds good and valid title to its Company Shares free and clear of any Lien.
Upon consummation of the Contemplated Transactions and the satisfaction of the
conditions to Closing set forth herein, Buyer will own all of the issued and
outstanding shares of capital stock of the Company, free and clear of any Lien.
At the Closing, Eyemakers will deliver the Company Shares to Buyer free and
clear of any Lien, other than restrictions imposed by the Securities Act of
1933, as amended, and applicable securities Laws.
SECTION 2.3 Authority Relative to this Agreement. The Company and
Eyemakers will have full power, capacity and authority to execute and deliver
each Transaction Document to which it is or, at Closing, will be, a party and to
consummate the transactions contemplated hereby and thereby (the "Contemplated
Transactions"). The execution, delivery and performance by the Company and
Eyemakers of each Transaction Document and the consummation of the Contemplated
Transactions to which the Company or Eyemakers is, or at Closing, will be, a
party will have been duly and validly authorized by the Company or Eyemakers,
and no other acts by or on behalf of the Company or Eyemakers will be necessary
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or required to authorize the execution, delivery and performance by the Company
and Eyemakers of each Transaction Document and the consummation of the
Contemplated Transactions to which it is or, at Closing, will be, a party. This
Agreement and the other Transaction Documents to which the Company or Eyemakers
is a party have been duly and validly executed and delivered by the Company or
Eyemakers, respectively, and (assuming the valid execution and delivery thereof
by the other parties thereto) will constitute the legal, valid and binding
agreements of the Company or Eyemakers, as the case may be, enforceable against
the Company or Eyemakers in accordance with their respective terms, except as
such obligations and their enforceability may be limited by applicable
bankruptcy and other similar Laws affecting the enforcement of creditors' rights
generally and except that the availability of equitable remedies is subject to
the discretion of the court before which any proceeding therefor may be brought
(whether at law or in equity).
SECTION 2.4 No Conflicts; Consents. The execution, delivery and
performance by the Company and Eyemakers of each Transaction Document to which
it is a party and the consummation of the Contemplated Transactions to which the
Company and Eyemakers is a party, upon approval of the Shareholders will not:
(i) violate any provision of the certificate of incorporation or by-laws of the
Company; (ii) require Eyemakers or the Company to obtain any consent, approval
or action of or waiver from, or make any filing with, or give any notice to, any
Governmental Body or any other person, except as set forth on Schedule 2.4 (the
"Company Required Consents"); (iii) violate, conflict with or result in a breach
or default under (with or without the giving of notice or the passage of time or
both), or permit the suspension or termination of, any material Contract
(including any Real Property Lease) to which Eyemakers or the Company is a party
or by which any of them or any of their assets is bound or subject, or to the
best of Company's and Eyemakers' knowledge and information result in the
creation of any Lien upon any of the Company Shares or upon any of the Assets of
the Company; (iv) violate any Order, any Law, of any Governmental Body against,
or binding upon, the Company or upon any of their respective assets or the
Business; or (v) violate or result in the revocation or suspension of any
Permit.
SECTION 2.5 Corporate Existence and Power. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, and has all requisite powers, authority and all
Permits required to own and/or operate its Assets and to carry on the Business
as conducted as of the date hereof. The Company is duly qualified to do business
and is in good standing in each state of the United States and in each other
jurisdiction where the character of the property owned or leased by it or the
nature of its activities makes such qualification necessary. The Company has one
Subsidiary, IGEA SALUS S.r.l., an Italian company.
SECTION 2.6 Charter Documents and Corporate Records. The Company has
heretofore delivered to Buyer true and complete copies of the certificate of
incorporation, by-laws and minute books, or comparable instruments, of the
Company as in effect on the date hereof. The stock transfer books of the Company
have been made available to Buyer for its inspection and are true and complete
in all respects in accordance with their tenor.
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SECTION 2.7 Liabilities. The Company has not incurred any Liabilities
since its inception.
SECTION 2.8 Company Receivables. The Company does not have any
Receivables.
SECTION 2.9 Leased Real Property. The Company has no fee interest,
purchase options or rights of first refusal in any real property and the Company
has no leasehold or other interest in any real property.
SECTION 2.10 Personal Property; Assets. The Company has good and valid
title to (or valid leasehold interest in) all of its personal property and
Assets, free and clear of all Liens.
SECTION 2.11 Contracts. The Company is not bound by any Contracts.
SECTION 2.12 Claims and Proceedings. There are no outstanding Orders
of any Governmental Body against or involving the Company, its Assets, the
Business, the Company Shares. There are no actions, suits, claims or
counterclaims, examinations, audits or legal, administrative, governmental or
arbitral proceedings or investigations (collectively, "Claims") (whether or not
the defense thereof or Liabilities in respect thereof are covered by insurance),
pending or, to the best of the Company's knowledge, threatened on the date
hereof, against or involving the Company, its Assets, the Business or the
Company Shares.
SECTION 2.13 Taxes. The Company has timely filed or, if not yet due
but due before Closing, will timely file all Tax Returns required to be filed by
it for all taxable periods ending on or before the date of Closing and all such
Tax Returns are or, if not yet filed, will be, upon filing, true, correct and
complete in all material respects. The Company is not liable for any Tax.
SECTION 2.14 Compliance with Laws. The Company is not in violation of
any order, judgment, injunction, award, citation, decree, consent decree or writ
(collectively, "Orders") and to the best of the Company's knowledge, belief and
information, any Laws of any Governmental Bodies affecting the Company, the
Company Shares or the Business.
SECTION 2.15 Permits. The Company has obtained all licenses, permits,
certificates, certificates of occupancy, orders, authorizations and approvals
(collectively, "Permits"), and has made all required registrations and filings
with all Governmental Bodies, that are necessary to the ownership of the Assets,
the use and occupancy of the Leased Real Property, as presently used and
operated, and the conduct of the Business or otherwise required to be obtained
by the Company
SECTION 2.16 Finders Fees. There is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to act
on behalf of Eyemakers or the Company who might be entitled to any fee or
commission from Eyemakers or the Company in connection with the consummation of
the Contemplated Transactions.
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SECTION 2.17 Disclosure. Neither this Agreement, the Schedules hereto,
nor any reviewed or unaudited financial statements, documents or certificates
furnished or to be furnished to Buyer by or on behalf of the Company pursuant to
this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There are no events,
transactions or other facts, which, either individually or in the aggregate, may
give rise to circumstances or conditions which would have a material adverse
effect on the general affairs or Condition of the Business.
SECTION 2.18 Ability to Conduct Business. The Assets are sufficient
and adequate to permit the continued operation of the Business as it has been
conducted since the inception of the Company and, assuming all Company Required
Consents are obtained, the consummation of the Contemplated Transactions hereby
will enable Buyer to conduct the Business as it has been conducted.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT
Buyer and Parent jointly and severally represent, warrant and covenant
to Eyemakers, Icon Veneto and the Company as follows and acknowledge that
Eyemakers, Icon Veneto and the Company are relying upon such representations and
warranties in connection with the Contemplated Transactions:
SECTION 3.1 Authority Relative to this Agreement. Buyer and Parent
have full power and authority to execute and deliver each Transaction Document
to which they are or, at Closing, will be, a party and to consummate the
Contemplated Transactions. Following the approval of the shareholders of the
Parent with respect to the Contemplated Transactions, the execution, delivery
and performance by Buyer and Parent of each Transaction Document and the
consummation of the Contemplated Transactions to which they are or, at Closing,
will be, a party have been duly and validly authorized and approved by Buyer and
Parent and no other acts by or on behalf of Buyer or Parent are necessary or
required to authorize the execution, delivery and performance by Buyer and
Parent of each Transaction Document and the consummation of the Contemplated
Transactions to which they are or, at Closing, will be a party. This Agreement
and the other Transaction Documents to which Buyer and Parent are a party have
been, duly and validly executed and delivered by Buyer and Parent and (assuming
the valid execution and delivery thereof by the other parties thereto)
constitutes, or will, at the Closing, constitute, as the case may be, the legal,
valid and binding agreements of Buyer and Parent enforceable against each of
them in accordance with their respective terms, except as such obligations and
their enforceability may be limited by applicable bankruptcy and other similar
Laws affecting the enforcement of creditors' rights generally and except that
the availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought (whether at law or in
equity).
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SECTION 3.2 No Conflicts; Consents. The execution, delivery and
performance by Buyer and Parent of each Transaction Document to which they are,
a party and the consummation of the Contemplated Transactions to which Buyer and
Parent are a party does not and will not: (i) violate any provision of the
certificate of incorporation or by-laws of Buyer or Parent, as the case may be;
(ii) require Buyer or Parent to obtain any consent, approval or action of or
waiver from, or make any filing with, or give any notice to, any Governmental
Body or any other person, except as set forth on Schedule 3.2 (the "Buyer
Required Consents"); (iii) except as set forth in Schedule 3.2, violate,
conflict with or result in the breach or default under (with or without the
giving of notice or the passage of time), or permit the suspension or
termination of, any material Contract to which Buyer or Parent are a party or
any of them or any of their assets is bound or subject or result in the creation
or any Lien upon any of Parent Common Stock or upon any Assets of Buyer or
Parent; or (iv) violate any Order or, to Buyer's knowledge, any Law of any
Governmental Body against, or binding upon, Buyer or Parent, or upon any of
their respective assets or businesses.
SECTION 3.3 Corporate Existence and Power of Buyer. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, and has all requisite corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
SECTION 3.4 Corporate Existence and Power of Parent. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada, and has all requisite corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 3.5 Finders Fees. There is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to act
on behalf of Buyer or Parent who might be entitled to any fee or commission from
Buyer or Parent in connection with the consummation of the Contemplated
Transactions.
SECTION 3.6 The Parent Common Stock. The Parent Common Stock has been
duly authorized by Parent and, when issued to Eyemakers pursuant to this
Agrement, will be duly issued, fully paid and non-assessable shares of Parent
Common Stock. The Parent Common Stock, when issued pursuant hereto: (i) will not
be issued in violation of or subject to any preemptive rights, rights of first
refusal or, other than as set forth in this Agreement, contractual restrictions
of any kind; and (ii) will vest in Eyemakers and Icon Veneto, respectively, good
title to Parent Common Stock free and clear of all Liens.
SECTION 3.7 Disclosure of Information. Buyer has been given the
opportunity: (i) to ask questions of, and to receive answers from, persons
acting on behalf of the Company concerning the terms and conditions of the
Contemplated Transactions and the business, properties, prospects and financial
conditions of the Company; and (ii) to obtain any additional information
necessary to verify the accuracy of information provided about the Company.
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SECTION 3.8 SEC Filings. Parent has filed with the SEC all forms,
reports, schedules, and statements that were required to be filed by it with the
SEC within the three (3) year period ending on the Effective Time, and
previously has furnished or made available to the Company accurate and complete
copies of all the SEC Documents. As of their respective dates, the SEC Documents
were prepared in accordance with the Exchange Act and the Securities Act and did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated in those documents or necessary to make the
statements in those documents not misleading, in light of the circumstances
under which they were made. Parent shall deliver to the Company as soon as they
become available accurate and complete copies of any report or statement that it
mails to its shareholders generally or files with the SEC during the period
after the date of this Agreement and before the Closing Date including but not
limited to the Form 8-K in connection with the Contemplated Transactions ("Form
8-K"). As of their respective dates, these reports and statements will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in them or necessary to make the statements in them not
misleading, in light of the circumstances under which they are made and these
reports and statements will comply in all material respects with all applicable
requirements of the Exchange Act and the Securities Act.
SECTION 3.9 Financial Statements. The audited consolidated financial
statements and unaudited consolidated interim financial statements of Parent and
its Subsidiaries that are included or incorporated in the SEC Documents were
prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except as otherwise indicated in the notes to them) and fairly
present the consolidated financial position, results of operations, and cash
flows from operating, investing, and financing activities of Parent and its
Subsidiaries as of the dates and for the periods indicated, except that the
unaudited consolidated interim financial statements in the SEC Documents are
subject to normal year-end adjustments and were prepared in accordance with the
instructions to SEC Form 10-QSB and, accordingly, omit or condense certain
footnotes and other information normally included in financial statements
prepared in accordance with GAAP. The consolidated financial statements of
Parent and its Subsidiaries that are included or incorporated in any subsequent
report or statement that Parent mails to its shareholders generally or files
with the SEC during the period after the date of this Agreement and before the
Closing Date will be prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except as otherwise indicated in them, the
notes to them, or any related report of Parent's independent accountants) and
will fairly present the financial information that they purport to present,
except that the unaudited, consolidated interim financial statements will be
subject to normal year-end adjustments and will omit or condense certain
footnotes and other information normally included in financial statements
prepared in accordance with GAAP.
SECTION 3.10 Capitalization. The authorized capital stock of Parent
consists of 25,000,000 shares of common stock $0.001 par value, 100,000 shares
of Class A preferred stock. Parent has 2,226,043 shares of common stock issued
and outstanding and no Class A Preferred stock issued and outstanding. Parent
does not and, at the Closing, Parent will not, have outstanding any capital
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stock or other securities or any rights, warrants or options to acquire
securities of Parent or any convertible or exchangeable securities and, other
than Buyer pursuant to this Agreement, no person has or, at Closing will have,
any right to purchase or otherwise acquire any securities of Parent. There are,
and at Closing there will be, no outstanding obligations of Parent to
repurchase, redeem or otherwise acquire any securities of Parent. All of Parent
Common Stock is, and at Closing will be, duly authorized, duly and validly
issued, fully paid and non-assessable, and none were issued in violation of any
preemptive rights, rights of first refusal or any other contractual or legal
restrictions of any kind. Any Subsidiaries of Parent are wholly owned by Parent
and any Subsidiary of Parent does not and, at the Closing, will not, have
outstanding any capital stock or other securities or any rights, warrants or
options to acquire securities of any Subsidiary of Parent or any convertible or
exchangeable securities and, other than such capital stock or other securities
of such Subsidiary owned by Buyer, no person has or, at Closing will have, any
right to purchase or otherwise acquire any securities of any Subsidiary of
Parent.
SECTION 3.11 Charter Documents and Corporate Records. Each of Parent
and Buyer has heretofore delivered to the Company true and complete copies of
the certificate of incorporation, by-laws and minute books, or comparable
instruments, of Parent and Buyer as in effect on the date hereof. The stock
transfer books of Parent and Buyer have been made available to the Company for
its inspection and are true and complete in all respects.
ARTICLE IV
COVENANTS AND AGREEMENTS
The Company covenants to Buyer and Buyer and Parent, jointly and
severally, covenant to the Company that:
SECTION 4.1 Filings and Authorizations. The parties hereto shall
cooperate and use their respective best efforts to make, or cause to be made,
all registrations, filings, applications and submissions, to give all notices
and to obtain all governmental or other third party consents, transfers,
approvals, Orders and waivers necessary or desirable for the consummation of the
Contemplated Transactions in accordance with the terms of this Agreement and
shall furnish copies thereof to each other party prior to such filing and shall
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not make any such registration, filing, application or submission to which Buyer
or the Company, as the case may be, reasonably objects in writing. All such
filings shall comply in form and content in all material respects with
applicable Law. The parties hereto also agree to furnish each other with copies
of such filings and any correspondence received from any Governmental Body in
connection therewith.
SECTION 4.3 Confidentiality. Each party hereto shall hold in strict
confidence, and shall use its best efforts to cause all of its officers,
employees, agents and professional counsel and accountants, (collectively,
"Representatives") to hold in strict confidence, unless compelled to disclose by
judicial or administrative process, or by other requirements of Law, all
information concerning any other party which it has obtained from such party
prior to, on, or after the date hereof in connection with the Contemplated
Transactions, and each party shall not use or disclose to others, or permit the
use of or disclosure of, any such information so obtained, and will not release
or disclose such information to any other person, except its Representatives who
need to know such information in connection with this Agreement and who shall be
advised of the provisions of this Section 4.2. The foregoing provision shall not
apply to any such information to the extent; (i) known by any party prior to the
date such information was provided to such party in connection with the
Contemplated Transactions; (ii) made known to such party from a third party not
in breach of any confidentiality requirement; or (iii) made public through no
fault of such party or any of its Representatives.
SECTION 4.4 Expenses. Buyer, Parent and the Company (for itself and on
behalf of Eyemakers) shall bear their respective expenses, in each case,
incurred in connection with the preparation, execution and performance of the
Transaction Documents and the Contemplated Transactions, including, without
limitation, all fees and expenses of their respective Representatives, and the
Company shall bear all the fees and expenses of any Company's Representatives.
SECTION 4.4 Tax Matters. The Company, Eyemakers and Buyer shall
reasonably cooperate, and shall cause their respective Representatives
reasonably to cooperate, in preparing and filing all Tax Returns, including
maintaining and making available to each other all records necessary in
connection with the preparation and filing of Tax Returns, the payment of Taxes
and the resolution of Tax Audits and Tax Deficiencies with respect to all
taxable periods. Refunds or credits of Taxes that were paid by the Company with
respect to any periods shall be for the account of the Company.
SECTION 4.5 Further Assurances. At any time and from time to time
after the date of Closing, upon the reasonable request of any party hereto, the
other party(ies), shall do, execute, acknowledge and deliver, or cause to be
done, executed, acknowledged or delivered, all such further documents,
instruments or assurances, as may be necessary, desirable or proper to carry out
the intent and accomplish the purposes of this Agreement.
SECTION 4.6 Restricted Securities. The parties acknowledge and agree
that the Company Shares and Parent Common Stock being issued or transferred
pursuant to the Contemplated Transactions are being issued or transferred
pursuant to the exemption from the registration requirements of the Securities
Act of 1933, as amended (the "Securities Act") and constitute "restricted
securities" within the meaning of the Securities Act. Such securities may not be
transferred absent compliance with the provisions of the Securities Act, other
than applicable Laws, and all stock certificates evidencing such securities
shall bear a legend to such effect and to the effect that such shares are
subject to the terms and provisions of this Agreement.
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ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.1 Conditions to the Obligations of the Parties. The
obligations of the Parties to consummate the Contemplated Transactions are
subject to the satisfaction of the following conditions:
(a) No Injunction. No provision of any applicable Law and no Order
shall prohibit the consummation of the Contemplated Transactions.
(b) No Proceedings or Litigation. No Claim instituted by any person
(other than Buyer, the Company, Eyemakers, Icon Veneto or their respective
Affiliates) shall have been commenced or pending against Eyemakers, Icon Veneto,
the Company, Buyer or any of their respective Affiliates, officers or directors,
which Claim seeks to restrain, prevent, change or delay in any respect the
Contemplated Transactions or seeks to challenge any of the terms or provisions
of this Agreement or seeks damages in connection with any of such transactions.
SECTION 5.2 Conditions to the Obligations of the Company, Icon Veneto
and Eyemakers. The obligations of the Company, Icon Veneto and Eyemakers
hereunder to consummate the Contemplated Transactions are subject, at the option
of the Company, Icon Veneto and Eyemakers, to the fulfillment prior to or at the
Closing of each of the following further conditions:
(a) Performance. Buyer and Parent shall have performed and complied in
all material respects with all agreements, obligations and covenants required by
this Agreement to be performed or complied with by it at or prior to the Closing
Date.
(b) Representations and Warranties. The representations and warranties
of Buyer and Parent contained in this Agreement and in any certificate or other
writing delivered by Buyer and Parent pursuant hereto shall be true in all
material respects at and as of the Closing Date as if made at and as of such
time (except for those representations and warranties made as of a specific date
which shall be true in all material respects as of the date made).
(c) Buyer Required Consents. All Buyer Required Consents shall have
been obtained including but not limited to the approval of the shareholders of
Parent of the Contemplated Transactions.
(d) No Material Adverse Change. From the date hereof through the
Closing, there shall not have occurred any event or condition that has had or
could have a material adverse effect on Parent.
(d) Documentation. There shall have been delivered to the Company the
following:
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(i) A certificate, dated the Closing Date, of the Chairman of the
Board, the President or Chief Financial Officer of Buyer confirming the matters
set forth in Section 5.2(a) (b) and (d) hereof;
(ii) A certificate, dated the Closing Date, of the Chairman of the
Board, the President or Chief Financial Officer of Parent confirming the matters
set forth in Section 5.2(a) (b) and (d) hereof;
(iii) Parent Common Stock certificates, registered in the name of
Eyemakers and Icon Veneto, respectively, (with the appropriate restrictive
legends), evidencing satisfaction of the Purchase Price in accordance with
Section 1.8;
(iv) New York Certificate of Merger;
(v) A certificate, dated the Closing Date, of the Secretary or
Assistant Secretary of Buyer certifying, among other things, that attached or
appended to such certificate: (i) is a true and correct copy of its certificate
of incorporation and all amendments thereto, if any, as of the date thereof
certified by the Secretary of the State of New York; (ii) is a true and correct
copy of its by-laws as of the date thereof; (iii) is a true copy of all
resolutions of its board of directors authorizing the execution, delivery and
performance of the Transaction Documents and the Contemplated Transactions; and
(iv) are the names and signatures of its duly elected or appointed officers who
are authorized to execute and deliver the Transaction Documents and any
certificate, document or other instrument in connection herewith;
(vi) A certificate, dated the Closing Date, of the Secretary or
Assistant Secretary of Parent certifying, among other things, that attached or
appended to such certificate: (i) is a true and correct copy of its certificate
of incorporation and all amendments thereto, if any, as of the date thereof
certified by the Secretary of the State of New York; (ii) is a true and correct
copy of its by-laws as of the date thereof; (iii) is a true copy of all
resolutions of its board of directors authorizing the execution, delivery and
performance of the Transaction Documents and the Contemplated Transactions; and
(iv) are the names and signatures of its duly elected or appointed officers who
are authorized to execute and deliver the Transaction Documents and any
certificate, document or other instrument in connection herewith;
(vii) Evidence of the good standing and corporate existence of Buyer
issued by the Secretary of State of the State of New York;
(viii) Evidence of the good standing and corporate existence of Parent
issued by the Secretary of State of the State of New York; and
(ix) Copies of all Buyer Required Consents.
SECTION 5.3 Conditions to the Obligations of Buyer and Parent. All
obligations of Buyer and/or Parent to consummate the Contemplated Transactions
hereunder are subject, at the option of Buyer and/or Parent, to the fulfillment
prior to or at the Closing of each of the following further conditions:
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(a) Performance. The Company, Icon Veneto and Eyemakers shall have
performed and complied in all material respects with all agreements, obligations
and covenants required by this Agreement to be performed or complied with by
them at or prior to the Closing Date.
(b) Representations and Warranties. The representations and warranties
of the Company, Icon Veneto and Eyemakers contained in this Agreement and in any
certificate or other writing delivered by Eyemakers, Icon Veneto and/or the
Company pursuant hereto shall be true in all material respects at and as of the
Closing Date as if made at and as of such time (except for those representations
and warranties made as of a specific date which shall be true in all material
respects as of the date made).
(c) Company Required Consents. All Company Required Consents shall
have been obtained in form and substance reasonably satisfactory to Buyer,
including the approval of the Company's shareholders for the Contemplated
Transactions.
(d) Buyer Required Consents. All Buyer Required Consents shall have
been obtained including but not limited to the approval of the shareholders of
Parent of the Contemplated Transactions. (e) No Material Adverse Change. From
the date hereof through the Closing, there shall not have occurred any event or
condition that has had or could have a material adverse effect on the Company.
(f) Documentation. There shall have been delivered to Buyer the
following:
(i) A certificate, dated the Closing Date, of the Chairman of the
Board, the President or Chief Financial Officer of the Company confirming the
matters set forth in Section 5.2(a) (b) and (e) hereof;
(ii) A certificate, dated the Closing Date, of the Secretary of the
Company certifying, among other things, that attached or appended to such
certificate: (i) is a true and correct copy of the Company's certificate of
incorporation and all amendments thereto, if any, as of the date thereof
certified by the Secretary of State of its state of incorporation; and (ii) is a
true and correct copy of the Company's by-laws as of the date thereof;
(iii) Evidence of the good standing and corporate existence of the
Company issued by the Secretary of State of New York and evidence that the
Company is qualified to transact business as a foreign corporation and is in
good standing in each state of the United States and in each other jurisdiction
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where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary;
(iv) Copies of all Company Required Consents;
(v) New York Certificate of Merger;
(vi) Company Share certificates representing the number of Company
Shares duly endorsed in blank or accompanied by stock powers duly endorsed in
blank and in suitable form for transfer to Buyer by delivery; and
(vii) Stock certificates representing all of the issued and
outstanding shares of Salus duly endorsed in blank or accompanied by stock
powers duly endorsed in blank and in suitable form for transfer to Buyer by
delivery.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 Survival of Representations, Warranties and Covenants. 1.
Notwithstanding any right of Buyer and Parent fully to investigate the affairs
of the Company and the rights of Eyemakers, Icon Veneto and the Company to fully
investigate the affairs of Buyer and Parent, and notwithstanding any knowledge
of facts determined or determinable by Buyer, Parent, the Company, Icon Veneto
and Eyemakers pursuant to such investigation or right of investigation, Buyer,
Parent, the Company, Icon Veneto and Eyemakers have the right to rely fully upon
the representations, warranties, covenants and agreements of the Company, Icon
Veneto and Eyemakers, and Buyer and Parent respectively, contained in this
Agreement, or listed or disclosed on any Schedule hereto or in any instrument
delivered in connection with or pursuant to any of the foregoing. All such
representations, warranties, covenants and agreements shall survive the
execution and delivery of this Agreement and the Closing hereunder.
Notwithstanding the foregoing, all representations and warranties of the
Company, Icon Veneto and Eyemakers, and Buyer and Parent respectively, contained
in this Agreement, on any Schedule hereto or in any instrument delivered in
connection with or pursuant to this Agreement shall terminate and expire twelve
(12) months after the date of Closing; provided, however, that the liability of
Eyemakers shall not terminate as to any specific claim or claims of the type
referred to in Section 6.2 hereof, whether or not fixed as to Liability or
liquidated as to amount, with respect to which Eyemakers have been given
specific notice on or prior to the date on which such Liabilities would
otherwise terminate pursuant to the terms of this Section 6.1(a), or which arise
or result from or are related to a Claim for fraud. For purposes of this Article
VI, "fraud" means any untrue statement of a material fact known by the maker to
be false when made or the intentional or knowing omission of a material fact
required to be stated or necessary to make the applicable statement in question
not misleading.
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(b) All representations and warranties of Buyer and Parent shall
terminate and expire twelve (12) months after the date of Closing; provided,
however, that the liability of Buyer and Parent shall not terminate as to any
specific claim or claims of the type referred to in Section 6.3 hereof, whether
or not fixed as to Liability or liquidated as to amount, with respect to which
Buyer and/or Parent has been given specific notice on or prior to the date on
which such Liability would otherwise terminate pursuant to the terms of this
Section 6.1(b), or which arise or result from or are related to a Claim for
fraud.
SECTION 6.2 Obligation of Eyemakers to Indemnify. Eyemakers agree to
indemnify, defend and hold harmless Buyer and Parent (and their respective
directors, officers, employees, Affiliates, successors and assigns) from and
against all Claims, losses, Liabilities, Regulatory Actions, damages,
deficiencies, judgments, settlements, costs of investigation or other expenses
(including Taxes, interest, penalties and reasonable attorneys' fees and fees of
other experts and disbursements and expenses incurred in enforcing this
indemnification) (collectively, the "Losses") suffered or incurred by Buyer
and/or Parent, the Company, or any of the foregoing persons arising out of any
breach of the representations and warranties of the Company or Eyemakers
contained in this Agreement, or of the covenants and agreements of Buyer or
Parent contained in this Agreement or in the Schedules or any other Transaction
Document.
SECTION 6.3 Obligation of Buyer and Parent to Indemnify. Buyer and
Parent, jointly and severally agree to indemnify, defend and hold harmless the
Company and Icon Veneto (and any heirs, successor or assignee thereof) from and
against any Losses suffered or incurred by the Company or any of the foregoing
persons arising out of any breach of the representations and warranties of Buyer
or Parent, or of the covenants and agreements of Buyer or Parent contained in
this Agreement or in the Schedules or any other Transaction Document.
SECTION 6.4 Notice and Opportunity to Defend Third Party Claims. 1.
Within ten (10) days following receipt by any party hereto (the "Indemnitee") of
notice of any demand, claim, circumstance or Tax Audit which would or might give
rise to a claim, or the commencement (or threatened commencement) of any action,
proceeding or investigation that may result in a Loss (an "Asserted Liability"),
the Indemnitee shall give notice thereof (the "Claims Notice") to the party or
parties obligated to provide indemnification pursuant to Sections 6.2, or 6.3
(collectively, the "Indemnifying Party"). The Claims Notice shall describe the
Asserted Liability in reasonable detail and shall indicate the amount
(estimated, if necessary, and to the extent feasible) of the Loss that has been
or may be suffered by the Indemnitee.
(b) The Indemnifying Party may elect to defend, at its own expense and
with its own counsel, any Asserted Liability unless: (i) the Asserted Liability
includes a Claim seeking an Order for injunction or other equitable or
declaratory relief against the Indemnitee, in which case the Indemnitee may at
its own cost and expense and at its option defend the portion of the Asserted
Liability seeking equitable or declaratory relief against the Indemnitee, or
(ii) the Indemnitee shall have reasonably, and in good faith, after consultation
with the Indemnifying Party, concluded that: (x) there is a conflict of interest
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between the Indemnitee and the Indemnifying Party which could prevent or
negatively influence the Indemnifying Party from impartially or adequately
conducting such defense; or (y) the Indemnitee shall have one or more defenses
not available to the Indemnifying Party but only to the extent such defense
cannot legally be asserted by the Indemnifying Party on behalf of the
Indemnitee. If the Indemnifying Party elects to defend such Asserted Liability,
it shall within ten (10) days (or sooner, if the nature of the Asserted
Liability so requires) notify the Indemnitee of its intent to do so, and the
Indemnitee shall cooperate, at the expense of the Indemnifying Party, in the
defense of such Asserted Liability. If the Indemnifying Party elects not to
defend the Asserted Liability, is not permitted to defend the Asserted Liability
by reason of the first sentence of this Section 6.4(b), fails to notify the
Indemnitee of its election as herein provided or contests its obligation to
indemnify under this Agreement with respect to such Asserted Liability, the
Indemnitee may pay, compromise or defend such Asserted Liability at the sole
cost and expense of the Indemnifying Party. Notwithstanding the foregoing,
neither the Indemnifying Party nor the Indemnitee may settle or compromise any
claim over the reasonable written objection of the other, provided that the
Indemnitee may settle or compromise any claim as to which the Indemnifying Party
has failed to notify the Indemnitee of its election under this Section 6.4(b) or
as to which the Indemnifying Party is contesting its indemnification obligations
hereunder. If the Indemnifying Party desires to accept a reasonable, final and
complete settlement of an Asserted Liability so that such Indemnitee's Loss is
paid in full and the Indemnitee refuses to consent to such settlement, then the
Indemnifying Party's liability to the Indemnitee shall be limited to the amount
offered in the settlement. The Indemnifying Party will exercise good faith in
accepting any reasonable, final and complete settlement of an Asserted
Liability. In the event the Indemnifying Party elects to defend any Asserted
Liability, the Indemnitee may participate, at its own expense, in the defense of
such Asserted Liability. In the event the Indemnifying Party is not permitted by
the Indemnitee to defend the Asserted Liability, it may nevertheless participate
at its own expense in the defense of such Asserted Liability. If the
Indemnifying Party chooses to defend any Asserted Liability, the Indemnitee
shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for such defense.
Any Losses of any Indemnitee for which an Indemnifying Party is liable for
indemnification hereunder shall be paid upon written demand therefor.
SECTION 6.5 Limits on Indemnification. (a) Notwithstanding the
foregoing or the limitations set forth in Section 6.5(b) below, in the event
such Losses arise out of any fraud related matter on the part of any
Indemnifying Party, then such Indemnifying Party shall be obligated to indemnify
the Indemnitee in respect of all such Losses. Buyer, Parent and the Company
agree that the Company's obligation to indemnify under this Article VI shall not
survive the Closing and the Company shall have no further liability to Buyer
after the Closing but that such obligations to indemnify shall be the sole
obligation of Eyemakers.
(b) The Company, Icon Veneto and Eyemakers shall not be liable to
indemnify Buyer pursuant to Section 6.2 above and Buyer and Parent shall not be
liable to indemnify the Company, Icon Veneto and Eyemakers pursuant to Section
6.3 above: (i) unless a Claims Notice describing the loss is delivered to the
Indemnifying Party within 12 months after the Closing (except for Losses arising
out of an Indemnifying Party); and; (ii) with respect to special, consequential
or punitive damages; or (iii) in respect of any individual Loss of less than
$10,000.
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(c) Eyemakers shall not be obligated to make any payment for
indemnification under Section 6.2 hereof in excess of: (i) if prior to the
Closing Date, the value of the Company Stock; and (ii) if on or following the
Closing Date, the value of the Parent Stock received as a result of the
transactions contemplated by this Agreement and Eyemakers has and reserves the
right to transfer his Parent Shares to fulfill all or a portion of any
obligation hereunder.
SECTION 6.6 Exclusive Remedy. The parties agree that the
indemnification provisions of this Article VI shall constitute the sole or
exclusive remedy of any party in seeking damages or other monetary relief with
respect to this Agreement and the Contemplated Transactions, provided that,
nothing herein shall be construed to limit the right of any party to seek: (i)
injunctive relief for a breach of this Agreement; or (ii) legal or equitable
relief for a Claim for fraud.
ARTICLE VII
SPECIFIC PERFORMANCE; TERMINATION
SECTION VII Specific Performance. The Company, Icon Veneto, Parent,
Buyer and Eyemakers acknowledges and agrees that, if any of the Company, Icon
Veneto, Parent, Buyer or Eyemakers fails to proceed with the Closing in any
circumstance other than those described in clauses (a), (b), (d) or (e) of
Section 7.2 below, the others will not have adequate remedies at law with
respect to such breach. In such event, and in addition to each party's right to
terminate this Agreement, each party shall be entitled, without the necessity or
obligation of posting a bond or other security, to seek injunctive relief, by
commencing a suit in equity to obtain specific performance of the obligations
under this Agreement or to xxx for damages, in each case, without first
terminating this Agreement. The Company, Icon Veneto, Parent, Buyer and
Eyemakers specifically affirms the appropriateness of such injunctive, other
equitable relief or damages in any such action.
SECTION 7.2 Termination. This Agreement may be terminated and the
Contemplated Transactions may be abandoned at any time prior to the Closing:
(a) By mutual written consent of the Company and Buyer;
(b) By the Company, Icon Veneto or Eyemakers if: (i) there has been a
misrepresentation or breach of warranty on the part of Buyer or Parent in the
representations and warranties contained herein and such misrepresentation or
breach of warranty, if curable, is not cured within thirty days after written
notice thereof from the Company; (ii) Buyer or Parent has committed a breach of
any covenant imposed upon it hereunder and fails to cure such breach within
thirty days after written notice thereof from the Company; or (iii) any
condition to the Company's obligations under Section 5.2 becomes incapable of
fulfillment through no fault of the Company and is not waived by the Company,
provided that, on the date of termination, all conditions to Buyer's and
Parent's obligations specified in Section 5.3 (other than clause (e) thereof)
shall have been satisfied and the Company shall then be otherwise ready, willing
and able to proceed with the Closing hereunder;
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(c) By Buyer, if: (i) there has been a misrepresentation or breach of
warranty on the part of the Company, Icon Veneto or Eyemakers in the
representations and warranties contained herein and such misrepresentation or
breach of warranty, if curable, is not cured within thirty days after written
notice thereof from Buyer; (ii) Eyemakers, Icon Veneto or the Company has
committed a breach of any covenant imposed upon it hereunder and fails to cure
such breach within thirty days after written notice thereof from Buyer; or (iii)
any condition to Buyer's obligations under Section 5.3 becomes incapable of
fulfillment through no fault of Buyer and is not waived by Buyer, provided that,
on the date of termination, all conditions to the Company's, Icon Veneto's and
Eyemakers's obligations hereunder specified in Section 5.2 shall have been
satisfied and Buyer shall then be otherwise ready, willing and able to proceed
with the Closing hereunder;
(d) By the Company or by Buyer, if any condition under Section 5.1
becomes incapable of fulfillment through no fault of the party seeking
termination and is not waived by the party seeking termination; and
(e) By either the Company or Buyer if the Closing shall not have
occurred on or prior to June 15, 2004 (or such other date as shall have been
agreed to by the Company and the Buyer), provided that: (i) if so terminated by
the Company, the conditions specified in Section 5.2 shall have been satisfied
on the date of termination and the Company shall be then otherwise ready,
willing and able to proceed with the Closing; or (ii) if so terminated by Buyer,
the conditions specified in Section 5.3 shall have been satisfied on the date of
termination and Buyer shall be then otherwise ready, willing and able to proceed
with the Closing.
SECTION 7.3 Effect of Termination; Right to Proceed. Subject to the
provisions of Section 7.1 hereof, in the event that this Agreement shall be
terminated pursuant to Section 7.2, all further obligations of the parties under
this Agreement shall terminate without further liability of any party hereunder
except that: (i) the agreements contained in Section 4.2 shall survive the
termination hereof; and (ii) termination shall not preclude any party from
seeking relief against any other party for breach of Section 4.2. In the event
that a condition precedent to its obligation is not met, nothing contained
herein shall be deemed to require any party to terminate this Agreement, rather
than to waive such condition precedent and proceed with the Contemplated
Transactions.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices. 1. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally by
hand or by recognized overnight courier, or mailed (by registered or certified
mail, postage prepaid return receipt requested) as follows:
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If to Buyer or Parent, one copy to:
Lasik America, Inc.
0000 Xxxxxx Xxxxxx Xxxx, X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Mr. Xxxxxx Xxxxxxxxx, President
with a copy to:
If to the Company or Icon Veneto, one copy to:
C/o Eyemakers, Inc.
Attn: Xxxxxx X. Xxxx, President
With a copy to:
Xxxxx & Xxxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq
(b) Each such notice or other communication shall be effective when
delivered at the address specified in Section 8.1(a). Any party by notice given
in accordance with this Section 8.1 to the other parties may designate another
address or person for receipt of notices hereunder. Notices by a party may be
given by counsel to such party.
SECTION 8.2 Entire Agreement. This Agreement (including the Schedules
and Exhibits hereto) and the collateral agreements executed in connection with
the consummation of the Contemplated Transactions contain the entire agreement
among the parties with respect to the subject matter hereof and related
transactions and supersede all prior agreements, written or oral, with respect
thereto.
SECTION 8.3 Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Agreement may be amended, superseded, cancelled,
renewed or extended only by a written instrument signed by the Company, Parent
and Buyer. The provisions hereof may be waived in writing by the Company Parent
or Buyer, as the case may be. Any such waiver shall be effective only to the
extent specifically set forth in such writing. No failure or delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof. Nor shall any waiver on the part of any party of any such
right, power or privilege, nor any single or partial exercise of any such right,
power or privilege, preclude any other or further exercise thereof or the
exercise of any other such right, power or privilege. Except as otherwise
provided herein, the rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies that any party may otherwise have at law
or in equity.
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SECTION 8.4 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State without regard to
the conflict of laws rules thereof.
SECTION 8.5 Consent to Jurisdiction. Each of the parties hereto
irrevocably and voluntarily submits to personal jurisdiction in the State of New
York and in the Federal courts in such state in any action or proceeding arising
out of or relating to this Agreement and agrees that all claims in respect of
such action or proceeding may be heard and determined in any such court. If for
any reason the Federal courts in such state will not entertain such action or
proceeding, then the parties hereto irrevocably and voluntarily submit to
personal jurisdiction in the state courts located in the State of New York in
any action or proceeding arising out of or relating to this Agreement and agree
that all claims in respect of any action or proceeding may be heard and
determined in any such court. Each of the parties further consents and agrees
that such party may be served with process in the same manner as a notice may be
given under Section 8.1. The parties hereto agree that any action or proceeding
instituted by any of them against any other party with respect to this Agreement
will be instituted exclusively in the United States District Court for the
District of New York, or alternatively, in the State courts located therein. The
Company, Buyer and Parent irrevocably and unconditionally waive and agree not to
plead, to the fullest extent permitted by law, any objection that they may now
or hereafter have to the laying of venue or the convenience of the forum of any
action or proceeding with respect to this Agreement in any such courts.
SECTION 8.6 Binding Effect; No Assignment. This Agreement and all of
its provisions, rights and obligations shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors, heirs and
legal representatives. This Agreement may not be assigned (including by
operation of Law) by any party hereto without the express written consent of
Buyer (in the case of assignment by the Company or any Eyemakers) or the Company
(in the case of assignment by Buyer or Parent) and any purported assignment,
unless so consented to, shall be void and without effect.
SECTION 8.7 Exhibits. All Exhibits and Schedules attached hereto are
hereby incorporated by reference into, and made a part of, this Agreement.
SECTION 8.8 Severability. If any provision of this Agreement for any
reason shall be held to be illegal, invalid or unenforceable, such illegality
shall not affect any other provision of this Agreement, this Agreement shall be
amended so as to enforce the illegal, invalid or unenforceable provision to the
maximum extent permitted by applicable law, and the parties shall cooperate in
good faith to further modify this Agreement so as to preserve to the maximum
extent possible the intended benefits to be received by the parties.
SECTION 8.9 Counterparts. The Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
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SECTION 8.10 Third Parties. Except as specifically set forth or
referred to herein, nothing herein express or implied is intended or shall be
construed to confer upon or give to any person other than the parties hereto and
their permitted heirs, successors, assigns and legal representatives, any rights
or remedies under or by reason of this Agreement or the Contemplated
Transactions.
ARTICLE IX
DEFINITIONS
SECTION 9.1 Definitions. The following terms, as used herein, have the
following meanings:
"Affiliate" of any person means any other person directly or
indirectly through one or more intermediary persons, controlling, controlled by
or under common control with such person.
"Agreement" or "this Agreement" shall mean, and the words "herein",
"hereof" and "hereunder" and words of similar import shall refer to, this
agreement as it from time to time may be amended.
"Assets" shall mean all cash, instruments, properties, rights,
interests and assets of every kind, real, personal or mixed, tangible and
intangible, used or usable in the Business.
The term "audit" or "audited" when used in regard to financial
statements shall mean an examination of the financial statements by a firm of
independent certified public accountants in accordance with generally accepted
auditing standards for the purpose of expressing an opinion thereon.
"Business" shall mean the ownership and operation of the business of
the Company.
"Condition of the Business" shall mean the financial condition,
prospects or the results of operations of the Business, the Assets or the
Company.
"Contract" shall mean any contract, agreement, indenture, note, bond,
lease, conditional sale contract, mortgage, license, franchise, instrument,
commitment or other binding arrangement, whether written or oral.
The term "control", with respect to any person, shall mean the power
to direct the management and policies of such person, directly or indirectly, by
or through stock ownership, agency or otherwise, or pursuant to or in connection
with an agreement, arrangement or understanding (written or oral) with one or
22
more other persons by or through stock ownership, agency or otherwise; and the
terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and includes all rules and regulations of the SEC promulgated
under that act.
"GAAP" shall mean generally accepted accounting principles in effect
on the date hereof (or, in the case of any opinion rendered in connection with
an audit, as of the date of the opinion) as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States.
"Governmental Bodies" shall mean any government, municipality or
political subdivision thereof, whether federal, state, local or foreign, or any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body, or any court, arbitrator,
administrative tribunal or public utility.
"knowledge" with respect to: (a) any individual shall mean actual
knowledge of such individual; and (b) any corporation shall mean the actual
knowledge of the directors and executive officers of such corporation; and
"knows" has a correlative meaning. The terms "any Eyemakers' knowledge," and
"Eyemakers' knowledge," including any correlative meanings, shall mean the
knowledge of Eyemakers.
"Laws" shall mean any law, statute, code, ordinance, rule, regulation
or other requirement of any Governmental Bodies.
"Liability" shall mean any direct or indirect indebtedness, liability,
assessment, claim, loss, damage, deficiency, obligation or responsibility, fixed
or unfixed, xxxxxx or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, actual or potential, contingent or otherwise
(including any liability under any guaranties, letters of credit, performance
credits or with respect to insurance loss accruals).
"Lien" shall mean any mortgage, lien (including mechanics,
warehousemen, laborers and landlords liens), claim, pledge, charge, security
interest, preemptive right, right of first refusal, option, judgment, title
defect, covenant, restriction, easement or encumbrance of any kind.
"person" shall mean an individual, corporation, partnership, joint
venture, limited liability company, association, trust, unincorporated
organization or other entity, including a government or political subdivision or
an agency or instrumentality thereof.
"Receivables" shall mean as of any date any trade accounts receivable,
notes receivable, sales representative advances and other miscellaneous
receivables of the Company.
"Regulatory Actions" shall mean any Claim, demand, action, suit,
summons, citation, directive, investigation, litigation, inquiry, enforcement
action, Lien, encumbrance, restriction, settlement, remediation, response,
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clean-up or closure arrangement or other remedial obligation or proceeding
brought or instigated by any Governmental Body in connection with any
Environmental Law, including, without limitation, the listing of the Leased Real
Property on any list of contaminated or potentially contaminated sites or
potential or verified Hazardous Waste sites under any Environmental Law, or any
civil, criminal and/or administrative proceedings, whether or not seeking costs,
damages, penalties or expenses.
"SEC" means the United States Securities and Exchange Commission.
"SEC Documents" means all forms, notices, reports, schedules,
statements, and other documents filed by Parent with the SEC within the three
years from the Effective Time, whether or not constituting a "filed" document,
and includes all proxy statements, registration statements, amendments to
registration statements, periodic reports on Forms 10-KSB, 10-QSB, and 8-K, and
annual and quarterly reports to shareholders.
"Subsidiary" shall mean any entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are owned
directly or indirectly through one or more intermediaries, or both, by any other
entity.
"Tax" (including, with correlative meaning, the terms "Taxes" and
"Taxable") shall mean: (i)(A) any net income, gross income, gross receipts,
sales, use, ad valorem, transfer, transfer gains, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, rent, recording,
occupation, premium, real or personal property, intangibles, environmental or
windfall profits tax, alternative or add-on minimum tax, customs duty or other
tax, fee, duty, levy, impost, assessment or charge of any kind whatsoever
(including but not limited to taxes assessed to real property and water and
sewer rents relating thereto), together with; (B) any interest and any penalty,
addition to tax or additional amount imposed by any Governmental Body (domestic
or foreign) (a "Tax Authority") responsible for the imposition of any such tax
and interest on such penalties, additions to tax, fines or additional amounts,
in each case, with respect to any party hereto, the Business or the Assets (or
the transfer thereof); (ii) any liability for the payment of any amount of the
type described in the immediately preceding clause (i) as a result of a party
hereto being a member of an affiliated or combined group with any other person
at any time on or prior to the date of Closing; and (iii) any liability of a
party hereto for the payment of any amounts of the type described in the
immediately preceding clause (i) as a result of a contractual obligation to
indemnify any other person.
"Tax Return" shall mean any return or report (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be supplied to any Tax Authority.
"Transaction Documents" shall mean, collectively, this Agreement, and
each of the other agreements and instruments to be executed and delivered by all
or some of the parties hereto in connection with the consummation of the
transactions contemplated hereby.
SECTION 9.2 Interpretation. Unless the context otherwise requires, the
terms defined in this Agreement shall be applicable to both the singular and
plural forms of any of the terms defined herein. All accounting terms defined in
this Agreement, and those accounting terms used in this Agreement except as
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otherwise expressly provided herein, shall have the meanings customarily given
thereto in accordance with GAAP as of the date of the item in question. When a
reference is made in this Agreement to Sections, such reference shall be to a
Section of this Agreement unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. The use of the neuter gender
herein shall be deemed to include the masculine and feminine genders wherever
necessary or appropriate, the use of the masculine gender shall be deemed to
include the neuter and feminine genders and the use of the feminine gender shall
be deemed to include the neuter and masculine genders wherever necessary or
appropriate. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
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IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Plan of Merger as of the date set forth above.
BUYER:
LASIK ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx
President
PARENT:
LASIK AMERICA, INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx
President
THE COMPANY:
Salus Holding, Inc.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Chief Executive Officer
EYEMAKERS:
EYEMAKERS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Chairman and Chief Executive Officer
Icon Veneto S.r.l.
ICON VENETO S.r.l.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Chairman and Chief Executive Officer
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