1
EXHIBIT 10.42
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made on May __, 1997, between Xxxxx X. Xxxxxxx, M.D.,
Xxxxxx X. Xxxxxxx, O.D., Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxxx, O.D., Xxxx X. Xxxx,
O.D., Xxxxxxx X. Xxxxxxxxx, M.D., Xxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx, M.D. and
Xxxxxxx X. Xxxxxxx, O.D. (hereinafter referred to collectively as "Sellers"),
and Vision Twenty-One, Inc., a Florida corporation (hereinafter referred to as
"Buyer").
RECITALS
A. The Sellers own all of the issued and outstanding shares of Midwest
Eye Care Alliance, Inc., a Minnesota corporation ("Corporation").
B. The Sellers as a group have been and will continue to be a
significant presence in the Midwestern United States eye care industry and
recently formalized their relationship by incorporating the Corporation to
consolidate their collective efforts to impact such industry and to assist Buyer
in the growth of their business in the Midwestern region of the United States.
C. Buyer wishes to acquire the Corporation which contains the
knowledge, procedures, plans and other elements of goodwill (the "Business
Concept"), which Business Concept Buyer believes has significant value to Buyer
and will benefit the future development of Buyer's business in the Midwestern
United States.
D. The Sellers desire to sell 100% of the outstanding stock ("Stock")
in the Corporation to the Buyer which desires to purchase the same on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the above premises, the
mutual promises contained herein and the other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Shares to be Purchased. The Sellers shall sell and the Buyer shall
buy all of the Stock of the Corporation.
2. Purchase Price. The Buyer shall pay to the Sellers for all of the
Stock a total sum of Seven Hundred Thousand Dollars ($700,000.00) to be divided
according to their ownership interest payable on the date of any initial public
offering of Buyer.
3. Closing Date. The Closing Date shall be on that date which is two
(2) weeks prior to Buyer's initial public offering either by mail or at the
offices of Buyer's counsel, Xxxxxxxx, Xxxx & Xxxxxxxx, Xxxxx 0000, Xxxxxxx
Xxxxx, 000 X. Xxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, or at such other time and
place as mutually agreed to by the parties. The closing by Buyer of the
individual practices constituting the Sellers is a contingency hereof and shall
have occurred before the closing date.
2
4. Warranties and Representations of Sellers.
Sellers jointly and severally hereby warrant, represent, and agree to
and with Buyer as follows:
(a) Sellers each have full, complete, and absolute title to the
following number of shares of capital stock of the Corporation:
NAME NO. OF SHARES
Xxxxx X. Xxxxxxx, M.D. 3 1/3
Xxxxxx X. Xxxxxxx, O.D. 10
Xxxxxx X. Xxxx 10
Xxxxxxx X. Xxxxxx, O.D. 7
Xxxx X. Xxxx, O.D. 10
Xxxxxxx X. Xxxxxxxxx, M.D. 3 1/3
Xxxx X. Xxxxx 10
Xxxxxx X. Xxxxxxxxx, M.D. 3 1/3
Xxxxxxx Xxxxxxx, O.D. 3
(b) The title of each of Sellers to said shares is free and clear of
any lien, charge, or encumbrance, and said shares aggregating sixty (60) shares,
constitute all of the outstanding capital stock of the Corporation, and by sale
of said shares of Stock hereunder, Buyer will receive good and absolute title
thereto, free from any liens, charges, or encumbrances thereon;
(c) The Corporation is a corporation duly organized and existing under
and by virtue of the laws of the State of Minnesota, and is in good standing
under the laws of that state; said outstanding sixty (60) shares of the capital
stock of said Corporation have heretofore duly been issued; all of said issued
and outstanding shares are valid, fully paid and nonassessable, and no
assessment is outstanding against the same or any part thereof; before the
closing of the sale of Stock hereunder, Sellers will deliver to Buyer the
opinion of Xxxxxxxxxx & Xxxxx, P.A., Seller's counsel, addressed to Buyer,
stating that the sixty (60) shares of capital Stock of the Corporation now
issued and outstanding have been lawfully issued under the laws of the State of
Minnesota and are valid, and that all Stock transfer restrictions affecting the
transfer of said shares of capital stock to Buyer hereunder have been duly
complied with or effectively waived, and that upon the closing hereunder have
been duly complied with or effectively waived, and that upon the closing
hereunder Buyer will have full and absolute title to said shares free and clear
of all liens, charges, or encumbrances;
(d) The present directors and officers of the Corporation are the
following:
Directors: Xxxxxx X. Xxxxxxx, O.D.
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx, O.D.
Xxxx X. Xxxx, O.D.
Xxxxxxx X. Xxxxxxxxx, M.D.
Xxxx Xxxxx
2
3
Officers: Xxxxxxx X. Xxxxxxxxx, M.D. President
Xxxxxxx X. Xxxxxx, O.D. Vice President
Xxxx X. Xxxx, O.D. Secretary
Xxxxxx X. Xxxx Treasurer
and the written resignations of said officers and directors to be effective upon
acceptance will be delivered to Buyer concurrently with the delivery of
certificates representing the capital stock sold hereunder;
(e) The Corporation's assets consist solely of the Business Concept and
the Corporation does not have any other assets, nor does the Corporation have
any liabilities except as set forth on Exhibit A attached hereto;
(f) Title to the Corporation's assets are vested in the Corporation as
of the date hereof, free of any liens, charges, or encumbrances. The
Corporation's books of account, records, and files correctly reflect all
operations and transactions and all assets and liabilities of the Corporation;
(g) Between May 30, 1997 and the Closing Date hereunder, the
Corporation has not and will not (1) transfer, sell, or otherwise
dispose of any corporate property or assets material to the operation of its
business other than in the ordinary and usual course of its business as
heretofore conducted, save and except such items as shall have become no longer
useful, obsolete, or worn out, or rendered of no further use and, if
theretofore useful in the conduct of its business and operations, as may have
been replaced with other items of substantially the same value and utility as
the items transferred, sold, exchanged, or otherwise disposed of; (2) create,
participate in, or agree to the creation of, any liens or encumbrances on its
corporate property; (3) enter into any leases, contracts, or agreements of any
kind or character or incur any liabilities save and except those to which it is
presently committed and which are disclosed herein or in the exhibits hereto;
(4) make any payments or distributions to any of its officers, shareholders, or
employees, save and except wages and salaries made to employees in the ordinary
and usual course of the business as heretofore conducted including therein
contributions pursuant to health, insurance, and pension plans presently in
effect; (5) amend or repeal its articles of incorporation or by-laws nor issue
any share of capital stock in addition to,a and other than,the he shares
heretofore issued, or reissue any treasury stocks;
(h) There are no undisclosed or contingent liabilities of the
Corporation, and in the event that any such undisclosed or contingent liability
shall hereafter arise applicable in whole or in part to a period prior to the
closing date, Buyer shall give Sellers written notice thereof, and Sellers will
thereupon within twenty (20) days following receipt of such notice discharge
such liability or liabilities or undertake to defend and hold Buyer free and
harmless therefrom and shall so notify Buyer. Upon failure of Sellers to
discharge or undertake to defend against said liability within the time
specified, Buyer may settle said liability, and the joint and several liability
of Sellers under this subparagraph shall be conclusively established by such
settlement;
(i) The Corporation is not a party to any lease agreements;
(j) The Corporation does not own any fixtures or equipment;
3
4
(k) The Corporation has no insurance polices presently in effect with
respect to the corporate property and business of the Corporation;
(l) There is no litigation pending against the Corporation, and none of
the Sellers is aware of any threatened litigation;
(m) All tax returns required to be made by the Corporation have been
properly prepared, executed, and duly filed pursuant to applicable laws and
regulations;
(n) The Corporation has not violated any federal, state, or municipal
law, statute, rule, or regulation or any executive order or presidential
directive required by it to be observed or performed; and
5. CONTINUING WARRANTIES
The warranties, representations, and agreements set forth herein shall
be continuous and shall survive the delivery by Sellers and the receipt by Buyer
of the capital stock to be sold hereunder and shall also survive the deduction
of amounts claimed to be due from the purchase price as provided in Section 2
hereof, and Buyer's right of recourse against said purchase price is not
intended to be its exclusive remedy for the breach of any such warranties,
representations, or agreements.
6. INDEMNITY
Without in any way limiting or diminishing the warranties,
representations, or agreements herein contained or the rights or remedies
available to the Buyer for the breach thereof, Sellers hereby jointly and
severally agree to indemnify, defend and hold Buyer harmless from and against
all loss, liability, damage, or expense arising out of any claims, demands,
costs, assessments, penalties, fines, taxes, or other loss resulting directly or
indirectly from the assertion against the Corporation of claims by any
governmental entity, any corporation, partnership, or any person or persons
arising before the Closing Date and not fully disclosed herein or not expressly
excepted by the provisions hereof.
7. WAIVER OF STOCK TRANSFER RESTRICTIONS
Sellers hereby waive all preemptive rights and restrictions on the sale
and transfer of the capital stock sold hereunder and agree to hold Buyer
harmless from and against all liability, loss, damage, or claims arising
directly or indirectly from Buyer's failure to obtain hereunder absolute,
entire and unconditional ownership of the entire outstanding capital stock of
the Corporation, free and clear of all restrictions, liens, charges, or
encumbrances.
8. BINDING AGREEMENT
The provisions of this agreement shall inure to the benefit of and
binds the successors and assigns of Buyer and the executors, administrators,
heirs, successors and assigns of Sellers.
4
5
9. NOTICES
All notices required or permitted to be given hereunder shall be in
writing and shall be sent by first-class mail postage prepaid, deposited in the
United States mail, and if intended for stockholders or Sellers shall be
addressed to Lindstrom, Xxxxxxxxx & Xxxxxxx, OPH, P.A., Park Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx, Xxxxx 000, 000 Xxxx 00xx Sheet, Xxxxxxxxxxx, Xxxxxxxxx 00000,
and, if intended for Buyer shall be addressed to Vision Twenty-One Inc., 0000
Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx 00000. Either party may by written notice to
the other change the address for notice to be sent to it.
10. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA
WITHOUT REGARD TO SUCH STATE'S RULES CONCERNING CONFLICTS OF LAWS. ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR ARISING OUT
OF THIS AGREEMENT IS WAIVED.
11. ARBITRATION
Any dispute or disagreement arising between the parties hereto in
connection with this Agreement, which is not settled to the mutual satisfaction
of the parties within thirty (30) days (or such longer period as may be mutually
agreed upon) from the date that either party informs the other in writing that
such dispute or disagreement exists, shall be submitted to arbitration in Tampa,
Florida to a member of the American Arbitration Association ("AAA") to be
mutually appointed by the parties (or, in the event the parties cannot agree on
a single such member, to a panel of three members selected in accordance with
the rules of the AAA). The dispute or disagreement shall be settled in
accordance with the Commercial Arbitration Rules of the AAA and the decision of
the arbitrator(s) shall be final and binding upon the parties and judgement may
be obtained thereon in a court of competent jurisdiction. The prevailing party
shall be entitled to recover from the other party the fees and expenses of the
arbitrator(s) as well as reasonable attorneys' fees, costs and expenses incurred
by the prevailing party.
5
6
IN WITNESS WHEREOF, the parties hereto have executed this agreement the
day and year first above written.
"SELLERS"
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------------------ ----------------------------------
XXXXX X. XXXXXXX, MD. XXXXXX X. XXXXXXX, O.D.
/s/ Xxxxxx Xxxx /s/ Xxxxxxx Xxxxxx
------------------------------------ ----------------------------------
XXXXXX X. XXXX XXXXXXX X. XXXXXX, O.D.
/s/ Xxxx Xxxx /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------ ----------------------------------
XXXX X. XXXX, O.D. XXXXXXX X. XXXXXXXXX, M.D.
/s/ Xxxx Xxxxx /s/ Xxxxxx Xxxxxxxxx
------------------------------------ --------------------------------
XXXX X. XXXXX XXXXXX X. XXXXXXXXX, M.D.
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
XXXXXXX XXXXXXX, O.D.
"BUYER"
VISION TWENTY-ONE, INC.
BY: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
President
6
