Exhibit 2.2
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT is entered into as of April 1, 2004, by and
among LensCard Corporation, a Delaware corporation ("LCC"), on the one hand, and
Xxxx Xxxxxxxxxxx, an individual ("Xxxxxxxxxxx"), Xxxxxxx X. Xxxx, an individual
("Xxxx"), and Xxxxxxx Paradise ("Paradise") (Xxxxxxxxxxx, Xxxx and Paradise are
sometimes hereinafter referred to collectively as the "PSA Owners"), on the
other hand.
RECITALS
WHEREAS, reference is hereby made to that certain Agreement of
Purchase and Sale of Assets, dated as of February 4, 1998, between LensCard US,
a Delaware limited liability company ("LCUS") (formerly, Universal Magnifier,
LLC, a California limited liability company) of the one part, and Xxxxxxxxxxx
and Xxxx of the other part (the "US Rights Agreement"), pursuant to which the
PSA Owners sold to LCUS all of the Assets (as defined in the recitals of the US
Rights Agreement, hereinafter referred to as the "US Assets"), in exchange for
the Future Payments (as defined in Section 1.2 of the US Rights Agreement,
hereinafter referred to as the "US Future Payments");
WHEREAS, reference is hereby made to that certain Agreement of
Purchase and Sale of Assets, dated as of July 14, 1999, between LensCard
International Limited, a British Virgin Islands International Business Company
("LCI") of the one part, and Xxxxxxxxxxx and Xxxx of the other part (the
"International Rights Agreement"), pursuant to which the PSA Owners sold to LCI
all of the Assets (as defined in the recitals of the International Rights
Agreement, hereinafter referred to as the "International Assets"), in exchange
for the Future Payments (as defined in Section 1.2 of the International Rights
Agreement, hereinafter referred to as the "International Future Payments");
WHEREAS, reference is hereby made to that certain Agreement, dated
July 26, 1999, by and between Xxxxxxxxxxx and Paradise (the "Paradise
Agreement"), confirming and effecting the sale by Xxxxxxxxxxx to Paradise of a
1% undivided interest (the "Paradise Interest") in all of Xxxxxxxxxxx'x right,
title and interest in and to the Assets (as defined in Recital G of the Paradise
Agreement), which Assets include, without limitation, the US Future Payments and
the International Future Payments;
WHEREAS, subject to the terms and conditions of this Agreement and
pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act") and Rule 506 promulgated thereunder, LCC desires to issue and
sell to the PSA Owners an aggregate of 5,500,000 shares of the $0.001 par value
per share Common Stock of LCC in exchange for the PSA Owners' entire right,
title and interest in and to the US Future Payments and the International Future
Payments;
WHEREAS, the transactions contemplated by this Agreement are part of
a series of integrated, mutually dependent transactions, which are set forth in
the transaction documents listed on Exhibit A attached hereto;
AGREEMENT
NOW, THEREFORE, for good and valid business purposes, and in
consideration of the mutual covenants and agreements contained herein, and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale of Assets. As of the Effective Time (as defined in
Section 2 below), each of the PSA Owners hereby transfers, conveys,
assigns and delivers to LCC, and LCC hereby acquires from the PSA
Owners each of the PSA Owner's entire right, title and interest in
and to the US Future Payments and the International Future Payments
(collectively, the "PSA Assets"), in exchange for the consideration
set forth in Section 5 below.
2. Effective Time. The "Effective Time" is defined as that date which is
two (2) business days before the date on which the merger described
in that certain Agreement of Merger dated as of the date hereof, by
and between LensCard International Limited, a British Virgin Islands
International Business Company, and LCC is consummated and is
effective.
3. Delivery of Payments. All of the US Future Payments and the
International Future Payments shall be delivered directly to LCC in
accordance with its instructions and the terms of the US Rights
Agreement and the International Rights Agreement, respectively.
4. No Assumption of Liabilities. LCC is assuming no liability of any PSA
Owner in connection with this transaction. All taxes, if any, arising
from this transaction shall be paid ratably by the PSA Owners.
5. Consideration. In exchange for each PSA Owner's entire right, title
and interest in and to the PSA Assets, upon the full execution of
this Agreement, LCC shall issue the number of shares of LCC Common
Stock set forth opposite each of the PSA Owners' names below
(collectively, the "LCC Shares"):
PSA Owner # LCC Shares of Common Stock
Xxxxxxxxxxx 4,332,650
Xxxx 1,114,850
Paradise 52,500
6. Waiver of Anti-Assignment Provision. Each of the PSA Owners hereby
forever waives any and all rights he may have to the performance by
each other PSA Owner of each such other PSA Owner's obligations under
Section 12.9 (Assignment Prohibited) of the US Rights Agreement and
the International Rights Agreement.
7. Representations and Warranties of PSA Owners. Each of the PSA Owners
represents and warrants, severally and not jointly, to LCC, that:
a. such PSA Owner has not transferred, assigned, licensed,
hypothecated any of his rights in the PSA Assets to any
third party;
b. there are no liens, claims, charges or other encumbrances
against the PSA Assets;
c. the LCC Shares to be purchased hereunder by such PSA Owner
will be purchased for investment for such PSA Owner's own
account, not as a nominee or agent, and not with a view to
the resale or distribution thereof;
d. such PSA Owner is an accredited investor as defined in
Regulation D of the Securities Act and/or has such
knowledge and experience in financial and business
matters, either alone or with such PSA Owner's
representative(s), that he is capable of evaluating the
merits and risks of his investment in the LCC Shares;
e. such PSA Owner understands that the LCC Shares may not be
sold, transferred or otherwise disposed of without
registration under the Securities Act of 1933, as amended
(the "Act") or an exemption therefrom; and
f. such PSA Owner understands and agrees that each
certificate representing LCC Shares shall bear
substantially the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS REGISTERED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE
SATISFACTORY TO THE COMPANY THAT AN EXEMPTION THEREFROM IS
AVAILABLE."
8. Governing Law. This Agreement shall be governed according to the laws
of the State of California.
9. Recitals. The Recitals above are hereby incorporated into and made a
part of this Agreement.
10. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto
with respect to the subject matter hereof and contains all of the
covenants and agreements between the parties with respect to such
subject matter. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, oral or
otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement
shall be valid or binding on either party.
11. Arbitration. The parties hereby agree that all controversies, claims
and matters of difference shall be resolved by binding arbitration
before the American Arbitration Association (the "AAA") located in
Los Angeles County, California according to the rules and practices
of the AAA from time-to-time in force; provided however that the
parties hereto reserve their rights to seek and obtain injunctive or
other equitable relief from a court of competent jurisdiction,
without waiving the right to compel such arbitration pursuant to this
section. The arbitrator shall apply California law in rendering a
decision.
12. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any
extent, be determined to be invalid, illegal or unenforceable under
present or future laws effective during the term of this Agreement,
then and, in that event: (A) the performance of the offending term or
provision (but only to the extent its application is invalid, illegal
or unenforceable) shall be excused as if it had never been
incorporated into this Agreement, and, in lieu of such excused
provision, there shall be added a provision as similar in terms and
amount to such excused provision as may be possible and be legal,
valid and enforceable, and (B) the remaining part of this Agreement
(including the application of the offending term or provision to
persons or circumstances other than those as to which it is held
invalid, illegal or unenforceable) shall not be affected thereby and
shall continue in full force and effect to the fullest extent
provided by law.
13. Preparation of Agreement. It is acknowledged by each party that such
party either had separate and independent advice of counsel or the
opportunity to avail itself of the same in connection with this
Agreement. In light of these facts it is acknowledged that no party
shall be construed to be solely responsible for the drafting hereof,
and therefore any ambiguity shall not be construed against any party
as the alleged draftsman of this Agreement.
14. Amendments. This agreement may be amended only by a written
instrument duly executed by the parties or their respective permitted
successors or assigns.
15. Counterparts. This Agreement may be executed manually or by facsimile
signature in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one
and the same instrument, binding on all parties hereto.
16. Headings. The 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.
17. Attorneys Fees. If any legal action, arbitration or other proceeding
is brought for the enforcement of this Agreement or because of any
dispute, breach, default or claim hereunder, the successful or
prevailing party shall be entitled to recover reasonable attorneys
fees and other costs it incurs in such action, arbitration or
proceeding, in addition to any other relief to which it may be
entitled.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first
written above.
LENSCARD CORPORATION, a Delaware corporation
By: /s/Xxxx Xxxxxxxxxxx
--- -------------------
Name: Xxxx Xxxxxxxxxxx
Its: Chief Executive Officer
/s/Xxxx Xxxxxxxxxxx
-------------------
XXXX XXXXXXXXXXX
/s/ Xxxxxxx X. Xxxx
-------------------
XXXXXXX X. XXXX
/s/ Xxxxxxx Paradise
--------------------
XXXXXXX PARADISE
ACKNOWLEDGED AND AGREED:
LENSCARD US, LLC, a Delaware limited liability company (formerly Universal
Magnifier, LLC, a California Limited liability company)
By: /s/ Xxx Xxxxxxxx
----------------------------------
Xxx Xxxxxxxx, Manager
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxxx, Manager
LENSCARD INTERNATIONAL LIMITED, a British
Virgin Islands International Business Company
By: /s/ Xxx Xxxxxxxx
-----------------------------
Xxx Xxxxxxxx
Title:
EXHIBIT A
INTEGRATED, MUTUALLY DEPENDENT TRANSACTION DOCUMENTS
1. Exchange Agreement, by and between LCC and PSA Co., Inc., a Delaware
corporation, pursuant to which LCC will transfer to PSA Co., Inc. all of
LCC's right, title and interest in and to the PSA Assets, in exchange for
25,000 shares of common stock of PSA Co., Inc.
2. Agreement of Merger, by and between LCI and LCC, pursuant to which LCI
will merge with and into LCC.
3. Exchange Agreement, by and among LCC, on the one hand, and LCUS and each
of the members of LCUS, on the other hand, pursuant to which the LCUS
members will transfer their LCUS membership interests in their entirety to
LCC, in exchange for an aggregate of 1,000,000 shares of LCC common stock.
