Exhibit 10.11
STOCK ACQUISITION AGREEMENT
BY AND AMONG
C & C VISION, INC.,
MEDEVEC SUPPLIES LTD.,
THE NICE TRUST DATED JULY 22, 1991, J. XXXX XXXXXX,
XXXXXXX XXXX AND XXXXX XXXXXX
OCTOBER 12, 1998
TABLE OF CONTENTS
PAGE
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ARTICLE I PURCHASE AND SALE OF COMPANY CAPITAL STOCK..................... 1
1.1 Purchase and Sale................................................ 1
1.2 Consideration.................................................... 2
1.3 Closing.......................................................... 2
1.4 No Further Ownership Rights in Shares............................ 2
1.5 Lost, Stolen or Destroyed Certificates........................... 2
1.6 Taking of Necessary Action; Further Action....................... 3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SHAREHOLDERS.......................................................... 3
2.1 Organization of the Company...................................... 3
2.2 Subsidiaries..................................................... 3
2.3 Company Capital Structure........................................ 3
2.4 Authority........................................................ 4
2.5 No Conflict...................................................... 4
2.6 Consents......................................................... 5
2.7 Company Financial Statements..................................... 5
2.8 No Undisclosed Liabilities....................................... 5
2.9 No Changes....................................................... 5
2.10 Tax Matters...................................................... 7
2.11 Restrictions on Business Activities.............................. 8
2.12 Title of Properties; Absence of Liens and Encumbrances; Condition
of Equipment.................................................. 9
2.13 Intellectual Property............................................ 9
2.14 Agreements, Contracts and Commitments............................ 11
2.15 Governmental Authorization....................................... 12
2.16 Litigation....................................................... 12
2.17 Minute Books..................................................... 12
2.18 Insurance........................................................ 13
2.19 Compliance with Laws............................................. 13
2.20 Warranties; Indemnities.......................................... 13
2.21 Complete Copies of Materials..................................... 13
2.22 Representations Complete......................................... 13
ARTICLE III FURTHER REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS... 13
3.1 Ownership of Shares.............................................. 13
3.2 Tax Matters...................................................... 14
3.3 Absence of Claims by the Shareholders............................ 14
3.4 Authority........................................................ 14
3.5 No Conflict...................................................... 14
TABLE OF CONTENTS
(CONTINUED)
PAGE
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER............... 15
4.1 Organization, Standing and Power................................. 15
4.2 Authority........................................................ 15
4.3 Purchaser Series A Preferred Stock............................... 15
4.4 Securities Act Exemption......................................... 15
ARTICLE V SECURITIES ACT COMPLIANCE; REGISTRATION........................ 15
5.1 Securities Act Exemption......................................... 15
5.2 Stock Restrictions............................................... 16
5.3 Shareholders' Representations Regarding Securities Law Matters... 16
ARTICLE VI ADDITIONAL AGREEMENTS......................................... 16
6.1 Ownership of Shares.............................................. 16
6.2 Access to Information............................................ 17
6.3 Consents......................................................... 17
6.4 Best Efforts; Additional Documents and Further Assurances........ 17
6.5 Notification of Certain Matters.................................. 17
ARTICLE VII CONDITIONS TO THE CLOSING.................................... 17
7.1 Conditions to the Obligations of the Purchaser................... 17
7.2 Conditions to Obligations of Company and the Shareholders........ 19
ARTICLE VIII GENERAL PROVISIONS.......................................... 19
8.1 Notices.......................................................... 19
8.2 Interpretation................................................... 20
8.3 Counterparts..................................................... 21
8.4 Entire Agreement; Assignment..................................... 21
8.5 Severability..................................................... 21
8.6 Other Remedies................................................... 21
8.7 Governing Law.................................................... 21
8.8 Rules of Construction............................................ 21
STOCK ACQUISITION AGREEMENT
THIS STOCK ACQUISITION AGREEMENT (this "Agreement") is made and entered
into as of October 12, 1998 by and among C&C Vision, Inc., a Delaware
corporation (the "Purchaser"), Medevec Supplies Ltd., a corporation formed under
the laws of Ireland (the "Company"), Intertrust Trustee (Isle of man) Limited,
as Trustee of the Nice Trust, J. Xxxx Xxxxxx, Xxxxxxx Xxxx and Xxxxx Xxxxxx
(together, the "Shareholders").
RECITALS
A. The Board of Directors of the Purchaser believes it is in the best
interests of the Purchaser and its stockholders to acquire all of the issued and
outstanding capital stock of the Company, all of which capital stock is owned or
held of record by the Shareholders, all upon the terms and subject to the
conditions set forth herein (the "Acquisition"), such that upon consummation of
the Acquisition the Purchaser will own all of the issued and outstanding capital
stock of the Company.
B. The Shareholders desire to sell all of the capital stock of the Company
owned or held of record or to be owned or held of record by them to the
Purchaser, all upon the terms and subject to the conditions set forth herein.
C. As an inducement for the Purchaser to consummate the Acquisition, the
Company and the Shareholders have agreed to make certain representations,
warranties, covenants and other agreements in connection with the Acquisition,
all as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, promises and representations set forth herein, the mutual benefits to
be gained by the performance hereof, and for other good and valuable
consideration, the receipt and legal sufficiency of which is hereby acknowledged
and accepted, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF COMPANY CAPITAL STOCK
1.1 Purchase and Sale. At the Closing (as defined in Section 1.3 hereof),
and upon the terms and subject to the conditions of this Agreement, the
Purchaser shall purchase from the Shareholders, and the Shareholders shall sell,
convey, transfer, assign and deliver to the Purchaser, free and clear of all
liens, encumbrances or other defects of title, all of the issued and outstanding
shares of capital stock of the Company now beneficially owned or held of record
and to be beneficially owned or held of record by the Shareholders at the
Closing, (the "Shares"). The name, address and taxpayer identification number
where appropriate of each Shareholder, the number and description of such Shares
being sold by such Shareholder pursuant hereto, and the consideration payable in
connection with the Acquisition to each Shareholder are set forth in Exhibit A
hereto.
1.2 Consideration. At Closing, Purchaser shall pay according to the
allocation set forth in Exhibit A: (i) cash in the amount of $2,000,000 and (ii)
8,412,698 shares of the Series A Preferred Stock of Purchaser (the "Purchase
Price").
1.3 Closing.
(a) The closing of the Acquisition (the "Closing") will take place
concurrently with the execution and delivery hereof at the offices of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000, unless another time or place is agreed to by the
Purchaser and Shareholders. The date upon which the Closing actually occurs is
herein referred to as the "Closing Date."
(b) At the Closing, the Shareholders shall deliver or cause to be
delivered to the Purchaser the following:
(i) certificates representing the Shares duly endorsed or
accompanied by stock powers duly endorsed in blank, with any required transfer
stamps affixed thereto; and
(ii) all other documents, certificates, instruments or writings
required to be delivered by the Shareholders on or prior to the Closing Date
pursuant to this Agreement or as may be reasonably requested by any party in
order to consummate the transactions contemplated by this Agreement.
(c) At the Closing, the Purchaser shall deliver or cause to be
delivered to each Shareholder the following:
(i) The consideration set forth opposite each Shareholder's name
in column 3 of Exhibit A.
(ii) all other documents, certificates or writings required to be
delivered by the Purchaser on or prior to the Closing Date pursuant to this
Agreement or as may be reasonably requested by any party in order to consummate
the transactions contemplated by this Agreement.
1.4 No Further Ownership Rights in Shares. All cash paid and Purchaser
Series A Preferred Stock issued in respect of the surrender for exchange of the
Shares in accordance with the terms hereof shall be deemed to be full
satisfaction of all of the Shareholder's rights pertaining to such Shares.
1.5 Lost, Stolen or Destroyed Certificates. In the event any certificates
evidencing any of the Shares shall have been lost, stolen or destroyed, the
Purchaser shall issue in exchange for such lost, stolen or destroyed
certificates, upon the making of an affidavit of that fact by the holder
thereof, such shares of Purchaser Series A Preferred Stock, as may be required
pursuant to Section 1.2 hereof; provided, however, that the Purchaser may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificates to deliver a bond in such
sum as it may direct against any claim that may be made against the Purchaser
with respect to the certificates alleged to have been lost, stolen or destroyed.
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1.6 Taking of Necessary Action; Further Action. If, at any time after the
Closing Date, any such further action is necessary or desirable to carry out the
purposes of this Agreement and to ensure that the Company retains full right,
title and possession to all of its assets, property, rights, privileges, powers
and franchises, the Purchaser, the Shareholders and the officers and directors
of the Company are fully authorized in the name of their respective corporations
or otherwise to take, and will take, all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SHAREHOLDERS
The Company and each of the Shareholders hereby jointly and severally
represent and warrant to the Purchaser, subject to such exceptions as are
specifically disclosed in the disclosure schedule (referencing the appropriate
section and paragraph numbers) supplied by the Company and the Shareholders to
the Purchaser (the "Disclosure Schedule") dated as of the date hereof and
attached as Exhibit C hereto, that on the date hereof and as of the Closing Date
as though made at the Closing Date (unless the representation or warranty
specifically is made by its terms as of a prior date, and except for changes
otherwise permitted by this Agreement), as follows:
2.1 Organization of the Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Ireland. The
Company has the corporate power to own its properties and to carry on its
business as now being conducted. The Company is duly qualified or licensed to do
business and in good standing in each jurisdiction in which it conducts
business. The Company has delivered a true and correct copy of its Memorandum
and Articles of Association and Bylaws, each as amended to date, to the
Purchaser. The operations now being conducted by the Company have not been
conducted under any other name.
2.2 Subsidiaries. The Company's sole wholly owned subsidiary is Medevec
Europe. Except for Medevec Europe, the Company does not have, and has never had,
any subsidiaries and does not otherwise own, and has not otherwise owned, any
shares in the capital of or any interest in, or control, directly or indirectly,
any corporation, partnership, association, joint venture or other business
entity.
2.3 Company Capital Structure.
(a) The authorized capital stock of the Company consists of IEP
1,000,000 ordinary shares of IEP 1 each, of which 100 shares are issued and
outstanding as of the date hereof (the "Company Ordinary Shares"). The Company
Ordinary Shares are held by the persons, with the
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domicile addresses and in the amounts set forth in Section 2.3(a) of the
Disclosure Schedule. All outstanding shares of Company Ordinary Shares are duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights created by statute, the Memorandum and Articles of Association
or the Bylaws of the Company, or any agreement to which the Company is a party
or by which it is bound, and have been issued in compliance with applicable
Irish laws. There are no declared or accrued unpaid dividends with respect to
any shares of Company Ordinary Shares. Other than the Company Ordinary Shares,
the Company has no other capital stock authorized, issued or outstanding.
(b) The Company has never adopted or maintained any stock option plan
or other plan providing for equity compensation of any person. There are no
options, warrants, calls, rights, commitments or agreements of any character,
written or oral, to which the Company is a party or by which it is bound
obligating the Company to issue, deliver, sell, repurchase or redeem, or cause
to be issued, delivered, sold, repurchased or redeemed, any shares of the
capital stock of the Company or obligating the Company to grant, extend,
accelerate the vesting of, change the price of, otherwise amend or enter into
any such option, warrant, call, right, commitment or agreement. There are no
outstanding or authorized stock appreciation, phantom stock, profit
participation, or other similar rights with respect to the Company. There are no
voting trusts, proxies, or other agreements or understandings with respect to
the voting stock of the Company.
(c) Upon completion of the Acquisition, the Purchaser will own one
hundred percent (100%) of the issued and outstanding capital stock of the
Company, free and clear of all liens, encumbrances or other defects of title.
2.4 Authority. The Company and the Shareholders have all requisite power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Company and the Shareholders, and no further action is required on the
part of the Company or the Shareholders to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and the Shareholders, and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
valid and binding obligation of the Company and the Shareholders, enforceable
against the Company and the Shareholders in accordance with its terms.
2.5 No Conflict. The execution and delivery by the Company of this
Agreement and the consummation of the transactions contemplated hereby will not
conflict with or result in any violation of, or default under (with or without
notice or lapse of time, or both), or give rise to a right of termination,
cancellation, modification or acceleration of any obligation or loss of any
benefit under (any such event, a "Conflict") (i) any provision of the Memorandum
and Articles of Association or the Bylaws of the Company, (ii) any mortgage,
indenture, lease, contract or other agreement or instrument, permit, concession,
franchise or license to which the Company or any of its properties or assets is
subject, or (iii) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company or its properties or assets.
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2.6 Consents. No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other federal, state, county, local or other governmental
authority, instrumentality, agency or commission ("Governmental Entity") or any
third party, including a party to any agreement with the Company or any
Shareholder (so as not to trigger any Conflict), is required by or with respect
to the Company or the Shareholders in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby,
except for such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
securities laws.
2.7 Company Financial Statements. Section 2.7 of the Disclosure Schedule
sets forth the Company's audited balance sheet as of December 31, 1997 and the
related audited statements of income and cash flow for the twelve-month period
then ended (the "Year-End Financials"), and the Company's unaudited balance
sheet as of July 31, 1998 and the related unaudited statements of income and
cash flow for the seven-month period then ended (the "Interim Financials"). The
Year-End Financials and the Interim Financials are correct in all material
respects and have been prepared in accordance with U.S. generally accepted
accounting principles ("GAAP") consistently applied on a basis consistent
throughout the periods indicated and consistent with each other (except that the
Interim Financials do not contain all the notes that may be required by GAAP).
The Year-End Financials and Interim Financials present fairly the financial
condition, operating results and cash flows of the Company as of the dates and
during the periods indicated therein, subject in the case of the Interim
Financials, to normal year-end adjustments, which will not be material in amount
or significance. The Company's unaudited Balance Sheet as of July 31, 1998 shall
be referred to herein as the "Current Balance Sheet."
2.8 No Undisclosed Liabilities. The Company has no liability, indebtedness,
obligation, expense, claim, deficiency, guaranty or endorsement of any type,
whether accrued, absolute, contingent, matured, unmatured or other of a nature
(required to be reflected on the face of a balance sheet in financial statements
in accordance with GAAP), which individually or in the aggregate (i) has not
been reflected in or reserved against in the Current Balance Sheet, (ii) has not
arisen in the ordinary course of business consistent with past practices since
July 31, 1998, in either case which amounts do not exceed $10,000 in the
aggregate.
2.9 No Changes. Since August 31, 1998, there has not been, occurred or
arisen any:
(a) transaction by the Company except in the ordinary course of
business as conducted on that date and consistent with past practices;
(b) amendments or changes to the Memorandum and Articles of
Association or the Bylaws of the Company;
(c) capital expenditure or commitment by the Company, either
individually or in the aggregate, exceeding $10,000 individually or $25,000 in
the aggregate;
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(d) destruction of, damage to or loss of any material assets, material
business or material customer of the Company (whether or not covered by
insurance);
(e) work stoppage, labor strike or other labor trouble, or any action,
suit, claim, labor dispute or grievance relating to any labor, safety or
discrimination matter involving the Company, including, without limitation,
charges of wrongful discharge or other unlawful labor practices or actions;
(f) change in accounting methods or practices (including any change in
depreciation or amortization policies or rates) by the Company other than
required by GAAP;
(g) revaluation by the Company of any of its assets;
(h) declaration, setting aside or payment of a dividend or other
distribution with respect to the Company Ordinary Shares or any direct or
indirect redemption, purchase or other acquisition by the Company of its capital
stock;
(i) increase in the salary or other compensation payable or to become
payable by the Company to any of its officers, directors, employees or advisors,
or the declaration, payment or commitment or obligation of any kind for the
payment, by the Company, of a bonus or other additional salary or compensation
to any such person;
(j) agreement, contract, covenant, instrument, lease, license or
commitment to which the Company is a party or by which it or any of its assets
is bound or any termination, extension, amendment or modification the terms of
any such agreement, contract, covenant, instrument, lease, license or commitment
to which the Company is a party or by which it or any of its assets is bound;
(k) sale, lease, license or other disposition of any of the material
assets or properties of the Company or any creation of any security interest in
such assets or properties, in each case other than in the ordinary course of the
Company's business, and except for the lien of current taxes which are not yet
due and payable;
(l) loan by the Company to any person or entity, incurring by the
Company of any indebtedness, guaranteeing by the Company of any indebtedness,
issuance or sale of any debt securities of the Company or guaranteeing of any
debt securities of others, except for advances to employees for travel and
business expenses in the ordinary course of business and not exceeding $5,000
individually or $10,000 in the aggregate;
(m) waiver or release of any right or claim of the Company material to
the Company business, including any write-off or other compromise of any account
receivable of the Company;
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(n) commencement or notice or threat or reasonable basis therefor of
any lawsuit or to the Company's or any Shareholder's knowledge, proceeding,
audit or investigation against the Company or its affairs;
(o) notice of any claim or potential claim of ownership by any person
other than the Company of any of the Company Intellectual Property (as defined
in Section 2.13 hereof) owned by or developed or created by the Company or of
infringement by the Company of any other person's Intellectual Property (as
defined in Section 2.13 hereof);
(p) issuance or sale, or contract to issue or sell, by the Company of
any shares of Company Ordinary Shares or securities exchangeable, convertible or
exercisable therefor, or any securities, warrants, options or rights to purchase
any of the foregoing;
(q) any event or condition of any character that has had or is
reasonably likely to have a Material Adverse Effect on the Company; or
(r) negotiation or agreement by the Company or any officer or
employees thereof to do any of the things described in the preceding clauses (a)
through (q) (other than negotiations with the Purchaser and its representatives
regarding the transactions contemplated by this Agreement).
2.10 Tax Matters.
(a) Definition of Taxes. For the purposes of this Agreement, "Tax" or,
collectively, "Taxes", means (i) any and all taxes, assessments and other
governmental charges, duties, impositions and liabilities, including taxes based
upon or measured by gross receipts, income, profits, sales, use and occupation,
and value added, ad valorem, transfer, franchise, withholding, payroll,
recapture, employment, excise and property taxes, together with all interest,
penalties and additions imposed with respect to such amounts; (ii) any liability
for the payment of any amounts of the type described in clause (i) as a result
of being a member of an affiliated, consolidated, combined or unitary group for
any period; and (iii) any liability for the payment of any amounts of the type
described in clause (i) or (ii) as a result of any express or implied obligation
to indemnify any other person or as a result of any obligations under any
agreements or arrangements with any other person with respect to such amounts
and including any liability for taxes of a predecessor entity.
(b) Tax Returns and Audits.
(i) The Company as of the Closing will have prepared and timely
filed all required tax returns, estimates, information statements and reports
("Returns") relating to any and all Taxes concerning or attributable to the
Company or its operations, and such Returns are true and correct and have been
completed in accordance with applicable law.
(ii) The Company as of the Closing: (A) will have paid all Taxes
it is required to pay and will have withheld with respect to its employees all
income taxes, and other Taxes required to be withheld, and (B) will have accrued
on the Current Balance Sheet all Taxes attributable to the periods covered by
the Current Balance Sheet and will not have incurred any liability for Taxes for
the period prior to the Closing other than in the ordinary course of business.
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(iii) The Company has not been delinquent in the payment of any
Tax, nor is there any Tax deficiency outstanding, assessed or proposed against
the Company, nor has the Company executed any waiver of any statute of
limitations on or extending the period for the assessment or collection of any
Tax.
(iv) No audit or other examination of any Return of the Company
is presently in progress, nor has the Company been notified of any request for
such an audit or other examination.
(v) The Company has no liabilities for unpaid Taxes which have
not been accrued or reserved on the Current Balance Sheet, whether asserted or
unasserted, contingent or otherwise, and the Company has not incurred any
liability for Taxes since the date of the Current Balance Sheet other than in
the ordinary course of business.
(vi) The Company has made available to the Purchaser or its legal
counsel, copies of all Returns for the Company filed for all periods since its
inception.
(vii) There are (and immediately following the Closing there will
be) no liens, pledges, charges, claims, restrictions on transfer, mortgages,
security interests or other encumbrances of any sort (collectively, "Liens") on
the assets of the Company relating to or attributable to Taxes other than Liens
for Taxes not yet due and payable.
(viii) Neither the Company nor any Shareholder has knowledge of
any basis for the assertion of any claim relating or attributable to Taxes
which, if adversely determined, would result in any Lien on the assets of the
Company.
(ix) The Company is not a party to any tax sharing,
indemnification or allocation agreement nor does the Company owe any amount
under any such agreement.
(x) No adjustment relating to any Return filed by the Company has
been proposed formally or informally by any tax authority to the Company or any
representative thereof.
(xi) The Company files its income Tax Returns on the accrual
basis.
2.11 Restrictions on Business Activities There is no agreement (non-compete
or otherwise), commitment, judgment, injunction, order or decree to which the
Company is a party or otherwise binding upon the Company which has or may
reasonably be expected to have the effect of prohibiting or impairing any
business practice of the Company, any acquisition of property (tangible or
intangible) by the Company or the conduct of business by the Company.
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2.12 Title of Properties; Absence of Liens and Encumbrances; Condition of
Equipment.
(a) The Company does not own any real property and has never owned any
real property. Section 2.12(a) of the Disclosure Schedule sets forth a list of
all real property currently leased by the Company, the name of the lessor, the
date of the lease and each amendment thereto and, with respect to any current
lease, the aggregate annual rental and/or other fees payable under any such
lease. All such current leases are in full force and effect, are valid and
effective in accordance with their respective terms, and there is not, under any
of such leases, any existing default or event of default (or event which with
notice or lapse of time, or both, would constitute a default) by the Company.
(b) The Company has good and valid title to, or, in the case of leased
properties and assets, valid leasehold interests in, all of its tangible
properties and assets, real, personal and mixed, used or held for use in its
business, free and clear of any Liens, except as reflected in the Current
Balance Sheet and except for Liens for Taxes not yet due and payable and such
imperfections of title and encumbrances, if any, which are not material in
character, amount or extent, and which do not detract from the value or
interfere with the present use of the property subject thereto or affected
thereby.
(c) Section 2.12(c) of the Disclosure Schedule lists all material
items of equipment with a net book value in excess of $1,000 (the "Equipment")
owned or leased by the Company and such Equipment is (i) adequate for the
conduct of the business of the Company as currently conducted, and (ii) in good
operating condition, regularly and properly maintained, subject to normal wear
and tear.
(d) The Company has not sold or otherwise released for distribution
any of its customer files and other customer information relating to of the
Company's current and former customers (the "Customer Information"). No person
other than the Company possesses any claims or rights with respect to use of the
Customer Information.
2.13 Intellectual Property.
(a) For the purposes of this Agreement, the following terms have the
following definitions:
(i) "Intellectual Property" shall mean any or all of the
following and all rights in, arising out of, or associated therewith: (i) all
United States and foreign patents and applications therefor and all reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
invention disclosures, improvements, trade secrets, proprietary information,
know how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing; (iii) all copyrights, copyrights registrations
and applications therefor and all other rights corresponding thereto throughout
the world.
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(ii) "Company Intellectual Property" shall mean any Intellectual
Property that is owned by or exclusively licensed to the Company as of the date
hereof.
(b) Each item of Company Intellectual Property, and all Intellectual
Property licensed to the Company, is free and clear of any Liens. The Company
(i) is the exclusive owner of all trademarks and trade names used in connection
with the operation or conduct of the business of the Company, including the sale
of any products or technology or the provision of any services by the Company,
and (ii) owns exclusively, and has good title to, all copyrighted works that are
Company products or other works of authorship that the Company otherwise
purports to own.
(c) Section 2.14(a) of the Disclosure Schedule lists all contracts,
licenses and agreements between the Company and any other person wherein or
whereby the Company has agreed to, or assumed, any obligation or duty to
warrant, indemnify, reimburse, defend, hold harmless, guaranty or otherwise
assume or incur any obligation or liability or provide a right of rescission
with respect to the infringement or misappropriation by the Company or such
other person of the Intellectual Property of any person other than the Company.
(d) To the knowledge of the Shareholders, the operation of the
business of the Company as it currently is conducted, or as is currently
contemplated to be conducted, including but not limited to the Company's design,
development, use, import, manufacture and sale of the products, technology or
services (including products, technology or services currently under
development) of the Company does not infringe or misappropriate the Intellectual
Property of any person, violate the rights of any person (including rights to
privacy or publicity), or constitute unfair competition or trade practices under
the laws of any jurisdiction, and the Company has not received notice or threat
thereof from any person claiming that such operation or any act, product,
technology or service (including products, technology or services currently
under development) of the Company infringes or misappropriates the Intellectual
Property of any person or constitutes unfair competition or trade practices
under the laws of any jurisdiction (nor is the Company or any Shareholder aware
of any basis therefor).
(e) There are no contracts, licenses or agreements between the Company
and any other person with respect to Company Intellectual Property under which
there is any dispute known to the Company or the Shareholders regarding the
scope of such agreement, or performance under such agreement including with
respect to any payments to be made or received by the Company thereunder.
(f) To the knowledge of the Company and the Shareholders, no person is
infringing or misappropriating any Company Intellectual Property.
(g) The Company has taken all commercially reasonable steps that are
required to protect the Company's rights in confidential information and trade
secrets of the Company or provided by any other person to the Company. Without
limiting the foregoing, the Company has, and enforces, a policy requiring each
employee, consultant and contractor with access to Company Intellectual Property
to execute proprietary information, confidentiality and assignment agreements
substantially in the Company's standard forms, and all current and former
employees, consultants and contractors of the Company have executed such an
agreement.
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-10-
(h) No Company Intellectual Property or product, technology or service
of the Company is subject to any proceeding or outstanding decree, order,
judgment, agreement or stipulation that restricts in any manner the use,
transfer or licensing thereof by the Company or may affect the validity, use or
enforceability of such Company Intellectual Property.
2.14 Agreements, Contracts and Commitments.
(a) Except as set forth in Section 2.14(a) of the Disclosure Schedule,
the Company is not a party to nor is it bound by:
(i) any employment or consulting agreement, contract or
commitment with an employee or individual consultant or salesperson or
consulting or sales agreement, contract or commitment with a firm or other
organization;
(ii) any agreement or plan, including, without limitation, any
stock option plan, stock appreciation rights plan or stock purchase plan, any of
the benefits of which will be increased, or the vesting of benefits of which
will be accelerated, by the occurrence of any of the transactions contemplated
by this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value individually
in excess of $10,000 individually or $25,000 in the aggregate;
(v) any agreement, contract or commitment containing any covenant
limiting the freedom of the Company to engage in any line of business or to
compete with any person,
(vi) any agreement, contract or commitment relating to capital
expenditures and involving future payments in excess of $50,000 per annum in the
aggregate;
(vii) any agreement, contract or commitment relating to the
leasing, licensing, disposition or acquisition of assets or any interest in any
business enterprise outside the ordinary course of the Company's business;
(viii) any mortgages, indentures, loans or credit agreements,
security agreements or other agreements or instruments relating to the borrowing
of money or extension of credit;
(ix) any purchase order or contract for the purchase of materials
involving in excess of $10,000 individually or $25,000 in the aggregate;
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-11-
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing or development
agreement; or
(xii) any other agreement, contract or commitment that involves
$10,000 individually or $25,000 in the aggregate or more or is not cancelable
without penalty within thirty (30) days.
(b) The Company is in compliance with and has not breached, violated
or defaulted under, or received notice that it has breached, violated or
defaulted under, any of the terms or conditions of any agreement, contract,
covenant, instrument, lease, license or commitment to which the Company is a
party or by which either is bound (collectively a "Contract"), nor is the
Company or any Shareholder aware of any event that would constitute such a
breach, violation or default with the lapse of time, giving of notice or both.
Each Contract is in full force and effect and, to the knowledge of the
Shareholders, is not subject to any default thereunder by any party obligated to
the Company pursuant thereto. The Company has obtained, or will obtain prior to
the Closing Date, all necessary consents, waivers and approvals of parties to
any Contract as are required thereunder in connection with the Acquisition for
such Contracts to remain in effect without modification after the Closing.
Following the Closing, the Company will be permitted to exercise all of the
Company's rights under the Contracts without the payment of any additional
amounts or consideration other than ongoing fees, royalties or payments which
the Company would otherwise be required to pay had the transactions contemplated
by this Agreement not occurred.
2.15 Governmental Authorization. Section 2.15 of the Disclosure Schedule
accurately lists each consent, license, permit, grant or other authorization
issued to the Company by a Governmental Entity presently held by the Company in
connection with the conduct of its business (herein collectively called "Company
Authorizations"). The Company Authorizations are in full force and effect and
constitute all Company Authorizations required to permit the Company to operate
or conduct its business or hold any interest in its properties or assets.
2.16 Litigation. There is no action, suit or proceeding of any nature
pending, or, to the Company's or any Shareholder's knowledge, threatened, before
any court or administrative agency against the Company its properties or any of
its officers or directors, nor, to the knowledge of the Company or any
Shareholder, is there any reasonable basis therefor. There is no investigation
pending or, to the Company's or any Shareholder's knowledge threatened, against
the Company, its properties or any of its officers or directors in their
capacities as such (nor, to the knowledge of the Company or any Shareholder, is
there any reasonable basis therefor) by or before any Governmental Entity. No
Governmental Entity has at any time challenged or questioned the legal right of
the Company to conduct its operations as presently or previously conducted.
2.17 Minute Books. The minutes of the Company made available to counsel for
the Purchaser are the only minutes of the Company and contain true and accurate
copies of all resolutions adopted by the Board of Directors (or committees
thereof) of the Company and its shareholders since the time of incorporation of
the Company.
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-12-
2.18 Insurance. Section 2.18 of the Disclosure Schedule lists all insurance
policies and fidelity bonds covering the assets, business, equipment,
properties, operations, employees, officers and directors of the Company. There
is no claim by the Company pending under any of such policies or bonds as to
which coverage has been questioned, denied or disputed by the underwriters of
such policies or bonds. All premiums due and payable under all such policies and
bonds have been paid, and the Company is otherwise in material compliance with
the terms of such policies and bonds (or other policies and bonds providing
substantially similar insurance coverage). Neither the Company nor any
Shareholder has knowledge of any threatened termination of, or premium increase
with respect to, any of such policies.
2.19 Compliance with Laws. The Company has complied in all material
respects with, is not in violation in any material respect of, and has not
received any notices of violation with respect to, any foreign or domestic law
or regulation.
2.20 Warranties; Indemnities. Except for the warranties and indemnities
contained in those contracts and agreements set forth in Section 2.14(a) of the
Disclosure Schedule, and statutory implied warranties, the Company has not given
any warranties or indemnities relating to products or technology sold or
services rendered by the Company.
2.21 Complete Copies of Materials. The Company has delivered or made
available true and complete copies of each document (or summaries of same) that
has been requested by the Purchaser or its counsel.
2.22 Representations Complete. None of the representations or warranties
made by the Company or any Shareholder (as modified by the Disclosure Schedule),
nor any statement made in any Schedule or certificate furnished by the Company
or any Shareholder pursuant to this Agreement contains or will contain at the
Closing, any untrue statement of a material fact or to their knowledge omits or
will omit at the Closing to state any material fact necessary in order to make
the statements contained herein or therein, in the light of the circumstances
under which made, not misleading.
ARTICLE III
FURTHER REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
Each Shareholder, severally but not jointly, further represents and
warrants to the Purchaser, subject to such exceptions as are specifically
disclosed in the Disclosure Schedule, that on the date hereof and as of the
Closing Date as though made at the Closing Date, as follows:
3.1 Ownership of Shares. Such Shareholder is the sole record owner of the
Shares designated as being owned by such Shareholder opposite such Shareholder's
name in Section 2.3(a) of the Disclosure Schedule, and such Shares are to be
sold pursuant to this Agreement. Except as set forth in Section 3.1 of the
Disclosure Schedule, such Shares are not subject to any Liens or to any rights
of first refusal of any kind, and such Shareholder has not granted any rights to
purchase such
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-13-
Shares to any other person or entity. Such Shareholder has the sole right to
transfer such Shares to the Purchaser. Such Shares constitute all of the Company
Ordinary Shares owned, beneficially or of record, by such Shareholder, and such
Shareholder has no options, warrants or other rights to acquire Company Ordinary
Shares. Upon the Closing, the Purchaser will receive good title to such Shares,
subject to no Liens retained, granted or permitted by such Shareholder or the
Company. Such Shareholder has not engaged in any sale or other transfer of any
Company Ordinary Shares in contemplation of the Acquisition.
3.2 Tax Matters. Such Shareholder has had an opportunity to review with its
own tax advisors the tax consequences to such Shareholder of the Acquisition and
the other transactions contemplated by this Agreement. Such Shareholder
understands that it must rely solely on its advisors and not on any statements
or representations by the Purchaser, the Company or any of their agents. Such
Shareholder understands that it (and not the Purchaser or the Company) shall be
responsible for its own tax liability that may arise as a result of the
Acquisition or the other transactions contemplated by this Agreement.
3.3 Absence of Claims by the Shareholders. Such Shareholder does not have
any claim against the Company, contingent or unconditional, fixed or variable
under any contract or on any other basis whatsoever, whether in equity or at law
(other than for accrued compensation and other employee benefits and other than
with respect to any rights to indemnification that such Shareholder may now or
hereafter be entitled to under the Company's Memorandum and Articles of
Incorporation or Bylaws).
3.4 Authority. Such Shareholder has all requisite power and authority to
enter into this Agreement to which it is a party and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Shareholder, and, assuming the due authorization, execution
and delivery by the other parties hereto, constitutes a valid and binding
obligation of such Shareholder, enforceable in accordance with its terms.
3.5 No Conflict. The execution and delivery by such Shareholder of this
Agreement and any Related Agreement to which it is a party does not, and the
consummation of the transactions contemplated hereby and thereby will not,
conflict with (i) any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise or license to which such Shareholder
or any of its properties or assets is subject, or (ii) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to such
Shareholder or its properties or assets.
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-14-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company and each of the
Shareholders that on the date hereof and as of the Closing Date as though made
at the Closing Date, as follows:
4.1 Organization, Standing and Power. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Purchaser has the corporate power to own its properties and to
carry on its business as now being conducted and is duly qualified or licensed
to do business and is in good standing in each jurisdiction in which the failure
to be so qualified or licensed would have a material adverse effect on the
Purchaser or on the ability of the Purchaser to consummate the Acquisition and
the other transactions contemplated hereby.
4.2 Authority. The Purchaser has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Purchaser. This Agreement
has been duly executed and delivered by the Purchaser and constitutes a valid
and binding obligation of the Purchaser, enforceable in accordance with its
terms.
4.3 Purchaser Series A Preferred Stock. The shares of Purchaser Series A
Preferred Stock to be issued pursuant to this Agreement will, when issued and
delivered in accordance with this Agreement, be duly authorized, validly issued,
fully paid, and non-assessable; provided, however, that the Purchaser Series A
Preferred Stock to be issued hereunder will be subject to restrictions on
transfer under applicable federal and state securities laws.
4.4 Securities Act Exemption. Subject to the accuracy of representations
provided by the Shareholders, the Purchaser Series A Preferred Stock to be
issued pursuant to this Agreement will be exempt from the registration
requirements of the Securities Act and will comply with all state and foreign
securities laws.
ARTICLE V
SECURITIES ACT COMPLIANCE; REGISTRATION
5.1 Securities Act Exemption. The Purchaser Series A Preferred Stock to be
issued pursuant to this Agreement will not be registered under the Securities
Act in reliance on the exemptions from the registration requirements of Section
5 of the Securities Act set forth in Section 4(2) thereof promulgated
thereunder. Prior to the Closing Date, each of the Shareholders shall have
provided Purchaser such representations, warranties, certifications, and
additional information as Purchaser may reasonably request to ensure the
availability of an exemption from the registration requirements of the
Securities Act.
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-15-
5.2 Stock Restrictions. In addition to any legend imposed by applicable
state securities laws or by any contract which continues in effect after the
Closing Date, the certificates representing the shares of Purchaser Series A
Preferred Stock issued pursuant to this Agreement shall bear a restrictive
legend (and stop transfer orders shall be placed against the transfer thereof
with Purchaser's transfer agent), stating substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). THEY MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR
HYPOTHECATED EXCEPT IN COMPLIANCE WITH RULE 144 IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT, OR A NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION.
5.3 Shareholders' Representations Regarding Securities Law Matters. Each
Shareholder shall be bound by the following provisions:
(a) Such Shareholder will not offer, sell, or otherwise dispose of any
shares of Purchaser Series A Preferred Stock except in compliance with the
Securities Act and the rules and regulations thereunder.
(b) Such Shareholder will not sell, transfer or otherwise dispose of
any shares of Purchaser Series A Preferred Stock unless (i) such sale, transfer
or other disposition is within the limitations of and in compliance with Rule
144 or Rule 145, as applicable, promulgated by the SEC under the Securities Act
and the Shareholder furnishes Purchaser with reasonable proof of compliance with
such Rule, (ii) in the opinion of counsel, reasonably satisfactory to Purchaser
and its counsel, some other exemption from registration under the Securities Act
is available with respect to any such proposed sale, transfer, or other
disposition of Purchaser Series A Preferred Stock, or (iii) the offer and sale
of Purchaser Series A Preferred Stock is registered under the Securities Act.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Ownership of Shares. No Shareholder shall take any action or suffer any
condition that would cause any of the representations or warranties set forth in
Section 3.1 at any time through the Closing to be untrue in any respect.
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-16-
6.2 Access to Information. The Company shall afford the Purchaser and its
accountants, counsel and other representatives, reasonable access upon
reasonable notice during normal business hours during the period prior to the
Closing to (i) all of the Company's properties, books, contracts, commitments
and records, (ii) all other information concerning the business, properties and
personnel (subject to restrictions imposed by applicable law) of the Company as
the Purchaser may reasonably request, and (iii) all key employees of the Company
as identified by the Purchaser. The Company agrees to provide to the Purchaser
and its accountants, counsel and other representatives copies of internal
financial statements (including Tax Returns and supporting documentation)
promptly upon request. No information or knowledge obtained in any investigation
pursuant to this Section 6.2 shall affect or be deemed to modify any
representation or warranty contained herein or the conditions to the obligations
of the parties to consummate the Acquisition.
6.3 Consents. The Company shall use its best efforts to obtain the
consents, waivers and approvals under any of the Contracts as may be required in
connection with the Acquisition (all of such consents, waivers and approvals are
set forth in the Disclosure Schedule) so as to preserve all rights of, and
benefits to, the Company thereunder.
6.4 Best Efforts; Additional Documents and Further Assurances. Each of the
parties to this Agreement shall use its best efforts to effectuate the
transactions contemplated hereby and to fulfill and cause to be fulfilled the
conditions to closing under this Agreement. Each party hereto, at the request of
another party hereto, shall execute and deliver such other instruments and do
and perform such other acts and things as may be reasonably necessary or
desirable for effecting completely the consummation of this Agreement, and the
transactions contemplated hereby.
6.5 Notification of Certain Matters. The Company and each of the
Shareholders shall give prompt notice to the Purchaser of (i) the occurrence or
non-occurrence of any event which is likely to cause any representation or
warranty of the Company or any Shareholder, respectively, contained in this
Agreement to be untrue or inaccurate at or prior to the Closing, and (ii) any
failure of the Company or any Shareholder, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder; provided, however, that the delivery of any notice pursuant to
this Section 6.5 shall not limit or otherwise affect any remedies available to
the party receiving such notice. No disclosure by the Company or the
Shareholders pursuant to this Section 6.5, however, shall be deemed to amend or
supplement the Disclosure Schedule or prevent or cure any misrepresentations,
breach of warranty or breach of covenant.
ARTICLE VII
CONDITIONS TO THE CLOSING
7.1 Conditions to the Obligations of the Purchaser. The obligation of the
Purchaser to consummate the Closing shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions, any of which may be
waived, in writing, exclusively by the Purchaser:
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-17-
(a) Representations, Warranties and Covenants. The representations and
warranties of the Company and the Shareholders in this Agreement were true and
correct in all material respects on the date they were made and shall be true
and correct in all material respects on and as of the Closing Date as though
such representations and warranties were made on and as of the Closing Date, and
the Company and the Shareholders shall have performed and complied in all
material respects with all covenants and obligations set forth in this Agreement
required to be performed and complied with by them as of the Closing.
(b) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Acquisition shall be in effect, nor shall any proceeding
brought by an administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, seeking any of the foregoing
be pending; nor shall there be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the
Acquisition, which makes the consummation of the Acquisition illegal.
(c) Legal Opinion. The Purchaser shall have received a favorable legal
opinion from counsel to the Company and the Shareholders, as to the matters set
forth in Exhibit B hereto.
(d) No Material Adverse Change. There shall not have occurred any event,
fact or condition of any character that has had or could reasonably be expected
to have a Material Adverse Effect on the Company (it being understood that a
deterioration of general economic conditions or conditions affecting the
Company's industry generally shall not, in and of itself, constitute an event,
fact or condition having a Material Adverse Effect for purposes of this Section
7.1).
(e) Certificate of the Company and the Shareholders. The Purchaser shall
have been provided with certificates executed by the Shareholders and executed
on behalf of the Company by its President to the effect that, as of the Closing:
(i) all representations and warranties made by the Company and
each Shareholder in this Agreement were true and correct in all material
respects on the date they were made and are true and correct in all material
respects on and as of the Closing Date as though such representations and
warranties were made on and as of the Closing Date; and
(ii) all covenants and obligations of this Agreement to be
performed by the Company or the Shareholders on or before such date have been so
performed in all material respects.
(f) Release of Liens. The Purchaser shall have received a duly and
validly executed copy of all agreements, instruments, certificates and other
documents, in form and substance reasonably satisfactory to the Purchaser, that
are necessary or appropriate to evidence the release of any and all liens and
other encumbrances on the Shares and the assets of the Company arising out of,
resulting from or in connection with any loans, guarantees or other similar
arrangements between or among the Company, the Shareholders and any third party
creditors of the Company.
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-18-
(g) Company License Agreement. The Company shall have entered into a
license agreement with J. Xxxxxx Xxxxxxx, Eppington Corporation, N.V. and
Medevec Licensing, B.V. substantially in the form attached hereto as Exhibit D.
(h) Purchaser License Agreement. Purchaser shall have entered into a
license agreement with the Company substantially in the form attached hereto as
Exhibit E.
(i) Lumed Assets. All right, title and interest in and to the Lumed
assets listed on Exhibit F hereto shall have been transferred to the Purchaser.
7.2 Conditions to Obligations of Company and the Shareholders. The
obligations of the Company and each of the Shareholders to consummate and effect
this Agreement and the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Closing of each of the following conditions, any
of which may be waived, in writing, exclusively by the Company:
(a) Representations, Warranties and Covenants. The representations and
warranties of the Purchaser in this Agreement were true and correct in all
material respects on the date they were made and shall be true and correct in
all material respects on and as of the Closing Date as though such
representations and warranties were made on and as of the Closing Date, and the
Purchaser shall have performed and complied in all material respects with all
covenants and obligations of this Agreement required to be performed and
complied with by it as of the Closing.
(b) Certificate of the Purchaser. Company shall have been provided
with a certificate executed on behalf of the Purchaser to the effect that, as of
the Closing:
(i) all representations and warranties made by the Purchaser in
this Agreement are true and correct on and as of the Closing Date as though such
representations and warranties were made on and as of the Closing Date; and
(ii) all covenants and obligations of this Agreement to be
performed by the Purchaser on or before such date have been so performed in all
material respects.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified mail (Return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice), provided, however,
that notices sent by mail will not be deemed given until received:
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-19-
(a) if to the Purchaser, to:
C&C Vision, Inc.
00000 Xxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attention: J. Xxxx Xxxxxx
Telephone No.: ____________
Facsimile No: ____________
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: J. Xxxxx XxXxxxx
Telephone No.: ____________
Facsimile No.: ____________
(b) if to the Company, to:
Medevec Supplies, Ltd.
00, Xxxxx Xxxxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
Attention: Xxxxx Xxxxxxxxxxxxx
Telephone No.: 000-00-000-000-0000
Facsimile No.: 011-44-171-437-7002
(c) If to any Shareholder, to:
to the address set forth under
the name of such Shareholder on
the signature page hereof
8.2 Interpretation. The words "include," "includes" and "including" when
used herein shall be deemed in each case to be followed by the words "without
limitation." The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-20-
8.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8.4 Entire Agreement; Assignment. This Agreement, the Exhibits hereto, the
Disclosure Schedule, and the documents and instruments and other agreements
among the parties hereto referenced herein: (a) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings both written and oral, among the parties
with respect to the subject matter hereof; (b) are not intended to confer upon
any other person any rights or remedies hereunder; and (c) shall not be assigned
by operation of law or otherwise, except that the Purchaser may assign its
rights and delegate its obligations hereunder to its affiliates as long as the
Purchaser remains ultimately liable for all of the Purchaser's obligations
hereunder.
8.5 Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
8.6 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
8.8 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefor, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
[Remainder of Page Intentionally Left Blank]
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-21-
IN WITNESS WHEREOF, the Purchaser, the Company and each of the Shareholders
have executed or caused this Agreement to be executed as of the date first
written above.
"PURCHASER" C&C VISION, INC.
By: /s/ J. Xxxx Xxxxxx
------------------------------------
Name: J. Xxxx Xxxxxx
Title: CEO
"COMPANY" MEDEVEC SUPPLIES, LTD.
By: /s/ illegible
------------------------------------
Name:
----------------------------------
Title: Director
"SHAREHOLDERS" THE NICE TRUST DATED
July 22, 1991
By: /s/ illegible (not signed by Xxxxx
Xxxxxxxxxxxx)
-----------------------------------
Xxxxx Xxxxxxxxxxxxx, Trustee
Address: x/x Xxxxx Xxxxxxxxxxxxx, Xxxxxxx
X.X. Xxx 00
2A Lord Street
Douglas, Isle of Man,
British Isles
/s/ J. Xxxx Xxxxxx
----------------------------------------
J. XXXX XXXXXX
Address: 00000 Xxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-22-
/s/ Xxxxxxx Xxxx
----------------------------------------
XXXXXXX XXXX
Address: 00000 Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
/s/ Xxxxx Xxxxxx
----------------------------------------
XXXXX XXXXXX
Address: Sawtooth Mountain Ranch
000 Xxxxxx Xxxx, 00X
Xxxxxxxx, XX 00000
[Signature Page to Stock Acquisition Agreement
C&C VISION, INC
STOCK ACQUISITION AGREEMENT
-23-
EXHIBIT DESCRIPTION
------- -----------
Exhibit A Schedule of Consideration
Exhibit B Opinion of Boniard X. Xxxxx and Holland Intertrust Corporation,
B.V., Counsel to the Company and the Shareholders
Exhibit C Disclosure Schedule
Exhibit D Medevec Supplies Limited License Agreement
Exhibit E C & C Vision, Inc. License Agreement
Exhibit F Lumed Assets
EXHIBIT A
SCHEDULE OF CONSIDERATION
Shares of Common Stock of the Consideration paid by
Shareholder Company sold to Purchaser Purchaser to Shareholder
----------- ----------------------------- -------------------------------
The Nice Trust 72 $2,000,000 and 5,612,698 shares
of Purchaser's Series A
Preferred Stock
J. Xxxx Xxxxxx 23 2,300,000 shares of Purchaser's
Series A Preferred Stock
Xxxxxxx Xxxx 3 300,000 shares of Purchaser's
Series A Preferred Stock
Xxxxx Xxxxxx 2 200,000 shares of Purchaser's
Series A Preferred Stock
EXHIBIT B
OPINION OF BONIARD X. XXXXX
AND HOLLAND INTERTRUST CORPORATION, B.V.,
COUNSEL TO THE COMPANY AND THE SHAREHOLDERS
EXHIBIT C
DISCLOSURE SCHEDULE
2.3 Company Capital Structure
(a) The Company's Ordinary Share ownership is as follows:
Shareholder Share Amount
----------- ------------
The Nice Trust 72
Xxxxx Xxxxxxxxxxxxx, Trustee
Address: X.X. Xxx 00
0X Xxxx Xxxxxx
Xxxxxxx, Isle of Man
British Isles
J. Xxxx Xxxxxx 23
Address: 00000 Xxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Xxxxxxx Xxxx 3
Address: 00000 Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Xxxxx Xxxxxx 2
Address: Sawtooth Mountain Ranch
000 Xxxxxx Xxxx 00X
Xxxxxxxx, XX 00000
2.7 Company Financial Statements
The Company has generated no financial statements.
2.9(p) No Changes
Shares are held in trust for Xxxx Xxxxxx and Xxxxx Xxxxxx. Shares were
transferred to Xxxxxxx Xxxx for 50% of the assets of Lumed. See 2.14(a) below.
2.12 Title of Properties; Absence of Liens and Encumbrances; Condition of
Equipment
(a) No real property is currently leased by the Company.
(b) The following is a list of all material equipment with a net book
value in excess of $1,000:
See Exhibit F.
2.14(a) Agreements, Contracts and Commitments
(1) Agreement to pay Xxxxxxx Xxxx $80,000 for manufacture of VS2 Lenses.
(2) Fees due for CE xxxx in Europe of approximately $10,000
(3) Distribution Agreement dated July 1, 1997 with Los Laboratory
Eurocrystal.
(4) Distribution Agreement dated February 2, 1998 with FoRoMed GmbH.
(5) Distribution Agreement with Xxxxxxx Xxxx for distribution of products
in Mexico.
(6) Share Sale and Purchase Agreement with Xxxx Xxxxxx.
(7) Share Sale and Purchase Agreement with Xxxxx Xxxxxx.
(8) Share Sale and Purchase Agreement with Xxxxxxx Xxxx.
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2.15 Governmental Authorizations
The following is a list of each consent, license, permit grant or other
authorization issued to the Company by a Governmental Entity presently held by
the Company in connection with the conduct of its business:
(1) CE xxxx for the VS2 Lens and Medevec Silicone issued to Medevec
Europe.
(2) ISO 9002 European Certification issued for Lumed manufacturing
facility.
2.18 Insurance
Medevec Licensing B.V. holds a policy of product liability insurance
listing the Company, as an insured.
3.1 Ownership of Shares
The Nice Trust has the right to repurchase Company Shares held by J. Xxxx
Xxxxxx.
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EXHIBIT D
MEDEVEC SUPPLIES LIMITED LICENSE AGREEMENT
EXHIBIT E
C & C VISION, INC. LICENSE AGREEMENT
See Series B Stock Purchase Agreement Exhibit I (Tab 7, Exhibit I)
EXHIBIT F
LUMED ASSETS
LUMED EQUIPMENT LIST
ITEM QUANTITY
---- --------
Shaker 1
Sieve < Top and Bottom Sieve Xx. 0, Xx. 00, Xx. 00, Xx. 0, Xx. 00, Xx. 00. 2
Electronic Scales 1
Ovens 2
Tumbler 2
Water Bath 2
Packaging Machine 1 set
Press 2
Compressor 1
Optical Bench 1
Microscope 5
Hood 3
4 Cavity Molds 2
4 Cavity Pins Xxxx. Qty. Xxxx. Qty. 39
14.0 2 20.5 2
15.0 2 21.5 2
16.0 2 22.5 2
17.0 2 23.5 2
18.0 2 24.5 2
19.0 2 25.5 2
20.0 2 26.5 1
21.0 2 27.5 1
22.0 2 28.5 1
23.0 2 29.5 1
24.0 2 30.5 1
ITEM QUANTITY
---- --------
Master Electroforming
Mold 2
Pins 6mm Xxxx. Qty. 5mm Xxxx. Qty. 21
25.1 1 17.0 1
26.5 1 19.0 1
27.5 1 20.0 1
28.5 1 22.0 1
29.5 1 23.0 1
30.5 1 24.0 1
25.0 1
26.0 1
27.0 1
28.0 1
29.0 1
30.0 1
Small Mold - 4 mm 2
Pins Xxxx. Qty. 10
16.5 1
17.5 1
18.5 1
19.5 1
20.5 1
21.5 1
22.5 1
23.5 1
24.5 1
25.5 1
Electroforming Mold 35
Back Plates 20
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