Exhibit 1
STOCK PURCHASE AGREEMENT
by and between
AMERICAN ELECTROMEDICS CORP.
and
XXXX XXXXX
Dated as of January 11, 1996
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of the eleventh day
of January, 1996 by and between AMERICAN ELECTROMEDICS CORP., a
Delaware corporation (the "Purchaser" or "AEC"), and XXXX XXXXX,
a German citizen (the "Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller has entered into an agreement (the
"Seller Agreement") whereby upon the closing thereof the Seller
will own all of the issued and outstanding shares of capital
stock (the "Capital Stock") of Xxxxx GmbH Medizintechnik, a
German corporation (the "Company"); and
WHEREAS, upon the terms and subject to the conditions
herein, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, DM25,000 of the
Capital Stock (the "Purchased Shares") of the Company, which
comprises fifty percent (50%) of the issued and outstanding
Capital Stock;
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 Purchase and Sale of Capital Stock. Upon the
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terms and subject to the conditions herein, at the Closing (as
defined in Section 1.2 hereof), the Seller shall sell and deliver
to the Purchaser, and the Purchaser shall purchase from the
Seller, the Purchased Shares for a purchase price (the "Purchase
Price") equal to (a) US $500,000 and (b) 500,000 shares of AEC
Common Stock, $.10 par value (the "AEC Shares").
1.2 Closing. The closing of the transactions
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contemplated herein (the "Closing") shall take place at the
offices of Xxxxxxxx Xxxxxxxx, Attorney and Notary, Berlin,
Germany at 10:00 A.M. local time on January __, 1996 (the "Closing
Date"), unless all the parties hereto otherwise agree.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLER
In order to induce the Purchaser to enter into this
Agreement, the Seller hereby represents and warrants to the
Purchaser as follows:
2.1 Authorization. The Seller has full legal capacity
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to enter into this Agreement and has taken all action necessary
to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Seller and
constitutes the legal, valid and binding obligation of the
Seller, enforceable against him in accordance with its terms.
2.2 Ownership of Capital Stock and Purchased Shares.
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At the Closing Date, the Seller will have good and marketable
title to, and be the beneficial owner of, all of the outstanding
shares of the Company's Capital Stock, free and clear of any
claim, lien, pledge, option, security interest, restriction or
other rights of third parties. The Seller has entered into the
Seller Agreement to purchase all of the outstanding shares of the
Company's Capital Stock which the Seller does not presently own.
Upon delivery to the Purchaser at the Closing of certificates
representing the Purchased Shares, together with all necessary
instruments of transfer and payment of taxes by the Seller, and
upon the Seller's receipt of the consideration, the Purchaser
will have valid and marketable Purchased Shares free of adverse
claims arising in respect of the Seller.
2.3 No Violation. Neither the execution, delivery and
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performance of this Agreement by the Seller nor the consummation
of the transactions contemplated hereby will, with or without the
giving of notice or the passage of time, or both, (i) result in a
breach or violation of or constitute a default under any term or
provision of any contract, agreement, license, permit,
instrument, obligation, commitment or restriction to which the
Seller or the Company is a party or any asset or property of the
Seller or the Company is or may be bound; (ii) require the
Company obtaining of any consents, approvals, waivers,
registrations, actions, making the filings and giving notices; or
(iii) result in a violation by the Seller or the Company of any
law, statute, ordinance, regulation, ordinance, rule, code,
order, judgment, writ, injunction, decree or award.
2.4 Investment in Other Entities. Except for his
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interest in the Company, the Seller does not directly or
indirectly control or beneficially own a controlling interest in
any corporation, partnership or other entity.
2.5 Securities Compliance. The Seller acknowledges
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and understands that the AEC Shares will not be registered under
the United States Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any other country,
and that the AEC Shares may not be offered or sold in the United
States unless either registered under the Securities Act or in
compliance with any exemption from such registration. The Seller
is acquiring the AEC Shares for his own account, for investment
purposes and has no current intention to sell the AEC Shares.
The Seller is familiar with the business and operations of AEC,
has received the Form 10-KSB of AEC for the fiscal year ended
July 29, 1995 and the Form 10-QSB for the fiscal quarter ended
October 29, 1995, and has had the opportunity to discuss AEC and
the AEC Shares with officers of AEC.
2.6 Incorporation. The Company is a corporation duly
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organized, validly existing and in good standing under the laws
of Germany. The Company has full corporate power and authority
to own, lease and operate its properties and assets and to
conduct its business as currently conducted. The Company has no
direct or indirect subsidiaries, is not a partner in any
partnership or joint venture, and does not own any capital stock
interests or other equity interests, or rights or options to
acquire any equity or other interests, in any entities.
2.7 Capitalization. The authorized Capital Stock of
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the Company consists of DM 50,000, all of which are issued and
outstanding. All of the outstanding shares of the Company's
Capital Stock have been duly authorized and validly issued and
are fully paid and nonassessable. There are no outstanding
options, warrants, subscriptions, calls, unsatisfied preemptive
or contractual rights, voting agreements, registration rights
agreements or other rights for the purchase of or receipt of, and
no securities or obligations of any kind convertible into or
exchangeable for, any Capital Stock of the Company.
2.8 Contracts. The Seller has delivered to the
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Purchaser true and complete copies of all contracts and other
arrangements, together with all amendments and supplements
thereto and all waivers of any terms thereof, of the following
types, whether oral or written, to which the Company is a party
or by which any of its assets or properties is subject or bound
(collectively, the "Contracts"). The Contracts are valid and in
full force and effect and constitute the legal, valid and binding
obligations of the Company and the other parties thereto,
enforceable against the Company and such other parties in
accordance with their respective terms, and there are no existing
violations or defaults by the Company or, to the Seller's
knowledge, by any other party thereto and no event, act or
omission has occurred which (with or without notice, lapse of
time and/or the happening or occurrence of any other event) would
result in a violation or default thereunder. No other party to
any Contract has in writing or otherwise asserted the right, and
no basis exists for the assertion of any enforceable right to
renegotiate, cancel or terminate prior to the full term thereof
any term or condition of any Contract, nor does the Seller or the
Company have any knowledge that any party to any Contract intends
to not renew any Contract upon termination of its current term.
2.9 Litigation. There is no action, claim, suit,
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proceeding, arbitral action or governmental investigation or
audit pending or threatened against or relating to the Company
which would, individually or in the aggregate, materially
adversely affect the business or the financial condition of the
Company or the consummation of the transactions contemplated by
this Agreement. The Seller is not aware of any facts or
circumstances which may give rise to any of the foregoing. There
is no order, writ, injunction, stipulation, judgment or decree
outstanding against the Company.
2.10 Compliance with Laws. The Company has in all
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material respects complied with all applicable federal, state,
local and international laws, statutes, ordinances, regulations,
judgments, orders and other legal requirements (including those
relating to employment and employment practices, terms and
conditions of employment, wages and hours and nondiscrimination
in employment) affecting the business or financial condition of
the Company. The Company has not received any written notice to
the effect that, or otherwise been advised that, it is not in
compliance with any of such laws, statutes, ordinances,
regulations, judgments, orders and other legal requirements. The
Company holds and is in compliance in all material respects with
all permits, licenses, franchises, orders, certificates and
approvals of any federal, state or local regulatory or
governmental authority necessary for or relating to the business
of the Company.
2.11 Taxes. (a) All taxes, including income, net
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proceeds, sales, property, personal property (tangible and
intangible), use, excise, duty, franchise, transfer, withholding,
payroll, employment and other changes, including interest and
penalties thereon, (collectively, "Taxes") of the Company due to
the date hereof to all federal, state, foreign or local
authorities (collectively, "Taxing Authorities") have been duly
paid or are adequately provided on the Financial Statements (as
defined in Section 2.12 below). In addition, all tax reports,
returns, information returns and other documents in respect of
all relevant Taxes (collectively, "Tax Reports") to be filed by
the Company on or prior to the Closing Date shall have been filed
by the Company on or prior to the Closing Date.
(b) There are no agreements, waivers or other
arrangements providing for extension of time with respect to the
assessment or collection of any Tax of the Company nor, to the
best knowledge of the Seller, are there any actions, suits,
proceedings, investigations or claims now pending against the
Company in respect of any Tax, or any matters under discussion
with any Taxing Authority relating to any amount of any Tax. The
Tax Reports of the Company have not been audited and are not in
the process of being audited by the applicable taxing
authorities, and there is no tax deficiency with respect to any
Tax outstanding, proposed or assessed against the Company.
2.12 Financial Information. The Seller has delivered
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to the Purchaser true, correct and complete copies of (i) the
financial statements of the Company for each of the years ended
December 31, 1993 and 1994, (ii) the financial statements of the
Company for the interim period ended October 31, 1995,
(collectively, the "Financial Statements") and (iii) pro forma
financial information as of January 2, 1996 (the "Pro Forma
Statement). The Financial Statements present fairly the
financial position, assets and liabilities of the Company as of
the dates thereof and the revenues, expenses, results of
operations and cash flows of the Company for the periods covered
thereby. The Financial Statements are in accordance with the
books and records of the Company, do not reflect any transactions
which are not bona fide transactions and do not contain any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements contained therein, in light
of the circumstances in which they were made, not misleading.
The Financial Statements make full and adequate disclosure of,
and provision for, all obligations and liabilities of the Company
as of the dates thereof. The Company has made one distribution
of cash or assets amounting to DM 91,429 as a preliminary
distribution since December 31, 1994; taking place on December
27, 1995. The Company has no liabilities or obligations, whether
accrued, absolute, contingent or otherwise, which are material to
the Company except for the liabilities and obligations disclosed
in the Pro Forma Statement.
2.13 Shareholders Agreement. The Shareholders
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Agreement, dated May 23, 1990, updated on June 5, 1992 and
January 11, 1996 (together with a translation thereof into
English), constitutes the entire agreement among the shareholders
of the Company as to their rights as shareholders. The
Shareholders Agreement is a valid and binding agreement and
enforceable under German laws.
2.14 Absence of Changes. Since December 31, 1994 there
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has not been any material adverse change, or any event or
development which, individually or together with other such
events, could reasonably be expected to result in a material
adverse change, in the business or financial condition of the
Company. A distribution by the Company to its stockholders was
made on December 27, 1995 as discussed in Section 2.12.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
In order to induce the Seller to enter into this
Agreement, the Purchaser hereby represents and warrants to the
Seller as follows:
3.1 Incorporation. The Purchaser is a corporation
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duly organized, validly existing and in good standing under the
laws of the State of Delaware.
3.2 Authorization. The Purchaser has all necessary
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corporate power and authority to enter into this Agreement and
the Shareholders Agreement, and has taken all corporate action to
consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Purchaser and
constitutes, and the Shareholders Agreement when duly executed
and delivered by the Purchaser will constitute, the legal, valid
and binding obligation of the Purchaser, enforceable against it
in accordance with their respective terms.
3.3 No Violation. Neither the execution, delivery and
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performance of this Agreement or the Shareholders Agreement by
the Purchaser nor the consummation of the transactions
contemplated hereby will, with or without the giving of notice or
the passage of time, or both, result in (i) a violation of or a
conflict with any provision of the Purchaser's Certificate of
Incorporation or By-Laws; (ii) a breach or violation of or
constitute a default under any term or provision of any contract,
agreement, license, permit, indenture, instrument, mortgage,
lease, right or other obligation or restriction to which the
Purchaser is a party or any asset or property of the Purchaser is
or may be bound; or (iii) a violation by the Purchaser of any
law, which violation would materially adversely affect the
consummation of the transactions contemplated by this Agreement.
3.4 Capitalization. The authorized capital stock of
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the Purchaser consists of 1,000,000 shares of Preferred Stock,
$.01 par value, none of which is outstanding, and 20,000,000
shares of Common Stock, $.10 par value, of which 11,718,333
shares are outstanding, and excluding shares reserved for
issuance upon the exercise of options. The AEC Shares, when
issued in accordance with this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable.
3.5 Consents and Approvals. No approval, consent,
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waiver, order or authorization of, or registration,
qualification, declaration, or filing with, or notice to, any
federal, state, local or foreign governmental authority or other
third party is required that has not been obtained on the part of
the Purchaser in connection with the execution, delivery and
performance of this Agreement and the Shareholders Agreement and
the consummation of the transactions contemplated hereby and
thereby.
3.6 Reporting Requirements. The Purchaser is subject
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to periodic reporting under the United States Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and has filed all
financial reports required thereunder with the U.S. Securities
and Exchange Commission since August 1, 1994. The AEC Common
Stock is traded on the Nasdaq OTC Bulletin Board.
ARTICLE 4
CONDITIONS TO OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser to consummate the
transactions contemplated hereby are subject to the fulfillment,
at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by the
Purchaser at its sole discretion):
4.1 Representations, Warranties and Obligations. All
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representations and warranties of the Seller contained in this
Agreement shall be true and correct in all material respects at
and as of the date of this Agreement and at and as of the Closing
Date as if such representations and warranties were made at and
as of the Closing Date. The Seller shall have performed in all
material respects all of his agreements, covenants and
obligations required hereby to be performed prior to or at the
Closing Date.
4.2 Stock Certificates. The Seller shall deliver to
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the Purchaser the certificates evidencing the Purchased Shares.
4.3 Good Standing Certificate. The Company shall
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deliver to the Purchaser a certificate as of a recent date as to
the good standing of the Company from each jurisdiction in which
the Company is incorporated, qualified or licensed to do
business.
4.4 Consents and Approvals. The Seller shall have
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obtained and delivered to the Purchaser all approvals, consents,
waivers, orders and authorizations of governmental authorities or
other third parties necessary to permit the Seller to the
consummate the transactions contemplated by this Agreement and
the Stockholders Agreement. The Seller and the Company shall
also have made, and delivered to the Purchaser copies of, all
registrations, qualifications, declarations, or filings with, or
notices to, any federal, state or local governmental authority
necessary to permit the Seller and the Company to consummate the
transactions contemplated by this Agreement.
4.5 Stockholders Agreement. The Seller and the
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Company shall have entered into the Shareholders Agreement as
amended to reflect the addition of AEC and the deletion of all
present parties thereto other than the Seller and as may be
further amended as mutually agreed to by the Purchaser and the
Seller.
4.6 Seller Agreement. The Seller shall have closed
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the Seller Agreement and have acquired all the shares of the
Company's Common Stock not owned by the Seller as of the date
hereof pursuant to the Seller Agreement.
ARTICLE 5
CONDITIONS TO OBLIGATIONS OF THE SELLER
The obligations of the Seller to consummate the
transactions contemplated hereby are subject to the fulfillment,
at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by the
Seller at his sole discretion):
5.1 Representations, Warranties and Obligations. All
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representations and warranties of the Purchaser contained in this
Agreement shall be true and correct in all material respects at
and as of the date of this Agreement and at and as of the Closing
Date as if such representations and warranties were made at and
as of the Closing Date. The Purchaser shall have performed in
all material respects all of its agreements, covenants and
obligations required hereby to be performed prior to or at the
Closing Date.
5.2 Consents and Approvals. The Purchaser shall have
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obtained and delivered to the Seller all approvals, consents,
waivers, orders and authorizations of governmental authorities or
other third parties necessary to permit the Purchaser to
consummate the transactions contemplated by this Agreement and
the Shareholders Agreement.
5.3 Stock Certificates. The Purchaser shall deliver
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the certificates evidencing the AEC Shares, registered in the
name of the Seller, with certificate shall have set forth thereon
a legend referring to the restrictions on sale or transfer
imposed under the Securities Act.
5.4 Payment. The Purchaser shall deliver a certified
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check or arrange a wire transfer to the account of the Seller in
the amount of US $500,000.
5.5 Good Standing Certificates. The Purchaser shall
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deliver to the Seller a certificate of good standing from the
Secretary of State of the State of Delaware.
5.6 Shareholders Agreement. The Purchaser shall have
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entered into the Shareholders Agreement, as amended.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification by the Seller. The Seller agrees
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to defend, indemnify and hold the Purchaser and its successors
and assigns (the "Indemnified Purchaser Group") harmless from and
against any and all losses, liabilities, damages, costs or
expenses (including reasonable attorneys' fees, penalties and
interest) payable to or for the benefit of, or asserted by, any
party, resulting from, arising out of, or incurred as a result of
the breach of any representation, warranty or covenant made by
the Seller herein.
6.2 Indemnification by the Purchaser. The Purchaser
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agrees to defend, indemnify and hold the Seller harmless from and
against any and all losses, liabilities, damages, costs, or
expenses (including reasonable attorneys' fees, penalties and
interest) payable to or for the benefit of, or asserted by, any
party, resulting from, arising out of, or incurred as a result of
the breach of any representation, warranty or covenant made by
the Purchaser herein.
6.3 Survival of Representations and Warranties. The
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representations, warranties, covenants and agreements made by the
Seller, on the one hand, and the Purchaser, on the other hand,
shall survive the Closing Date for a period of one (1) year.
6.4 Notice of Claims. Each of the Purchaser and the
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Seller agrees to give prompt written notice to the other of any
claim against the party giving notice which might give rise to a
claim by it against the other party hereto based upon the
indemnification provisions contained herein, stating the nature
and basis of the claim and the actual or estimated amount
thereof; provided, however, that failure to give such notice will
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not affect the obligation of the indemnifying party to provide
indemnification in accordance with the provisions of this Article
6 unless, and only to the extent that, such indemnifying party is
actually prejudiced thereby. In the event that any action, suit
or proceeding is brought against the Seller or any member of the
Indemnified Purchaser Group with respect to which any party
hereto may have liability under the indemnification provisions
contained herein, the indemnifying party shall have the right, at
its sole cost and expense, to defend such action in the name or
on behalf of the indemnified party and, in connection with any
such action, suit or proceeding, the parties hereto agree to
render to each other such assistance as may reasonably be
required in order to ensure the proper and adequate defense of
any such action, suit or proceeding; provided, however, that an
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indemnified party shall have the right to retain its own counsel,
with the fees and expenses to be paid by the indemnifying party,
if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate because
of actual or potential differing interests between such
indemnified party and any other party represented by such
counsel. Neither party hereto shall make any settlement of any
claim which might give rise to liability of the other party under
the indemnification provisions contained herein without the
written consent of such other party, which consent such other
party covenants shall not be unreasonably withheld.
ARTICLE 7
GENERAL PROVISIONS
7.1 Expenses. Each party to this Agreement shall pay
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its own costs and expenses (including, without limitation, the
fees and expenses of its agents, representatives, counsel and
accountants) incidental to the negotiation, drafting, and
performance of this Agreement and the Shareholders Agreement.
7.2 Successors and Assigns. This Agreement shall be
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binding upon and inure to the benefit of the Seller and the
Purchaser, and their respective heirs, successors, legal
representatives and assigns.
7.3 Waiver. Any term or condition of this Agreement
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may be waived, to the extent permitted by law, at any time by the
party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or
condition. No waiver by any party of any term or condition of
this Agreement, in any one or more instances, shall be deemed to
be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by law or otherwise
afforded, will be cumulative and not alternative.
7.4 Brokers and Finders. Neither the Seller nor the
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Purchaser has entered into and nor will enter into any agreement,
arrangement or understanding with any person or firm which will
result in the obligation of such party to pay any finder's fee,
brokerage commission or similar payment in connection with the
transactions contemplated by this Agreement.
7.5 Entire Agreement. This Agreement (including the
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Schedules and Exhibits hereto) constitutes the entire agreement
by the parties and supersedes any other agreement, whether
written or oral, that may have been made or entered into by them
as to the subject matter herein. This Agreement may be amended
or supplemented only by a written instrument executed by the
parties hereto which states specifically that it is intended to
amend or supplement this Agreement.
7.6 Notices. All notices, demands, requests, and
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other communications hereunder shall be in writing in the English
language and shall be deemed to have been duly given and shall be
effective upon receipt if delivered by hand or facsimile, or sent
by certified or registered mail, postage prepaid and return
receipt requested, or by prepaid overnight express service.
Notices shall be sent to the parties at the following addresses
(or at such other addresses for a party as shall be specified by
like notice; provided that such notice shall be effective only
upon receipt thereof):
(a) If to the Seller:
Xxxx Xxxxx
x/x Xxxxx XxxX Xxxxxxxxxxxxxx
Xxx Xxxxxx 0
0000 Xxxxxx Xxxxxxx
Tel: ( ) -
Fax: ( ) -
(b) If to the Purchaser:
American Electromedics Corp.
00 Xxxxxxxx Xxxxx, Xxxxx 00
Xxxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xx. Xxxx Xxxx, President
Tel: (000) 000-0000
Fax: (000) 000-0000
7.7 Severability. In the event that any provision
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contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof and this Agreement shall be construed as
if such invalid, illegal or unenforceable provisions had never
been contained herein and, in lieu of each such illegal, invalid
or unenforceable provision, there shall be added automatically as
a part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible
but still be legal, valid and enforceable.
7.8 Applicable Law. This Agreement and the legal
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relations between the parties hereto shall be governed by and
construed in accordance with the substantive laws of Germany,
without giving effect to the principles of conflicts of law
thereof, except as to the AEC Shares which shall be governed by
the laws of the State of Delaware.
7.9 Titles and Headings. Titles and headings to
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sections hereof are inserted for convenience of reference only
and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.
7.10 Counterparts. This Agreement may be executed in
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one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
AMERICAN ELECTROMEDICS CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
/s/ Xxxx Xxxxx
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XXXX XXXXX
