10.27 Purchase and Sale Agreement with Proxy, among Enhance Biotech, Inc. (f/k/a
Becor Communications, Inc.), Enhance Lifesciences Inc. and SCO Capital
Partners LLC
THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS ("STATE LAWS") OR ANY SECURITIES LAWS OF JURISDICTIONS
OUTSIDE OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED
UNDER THE SECURITIES ACT COVERING THE SECURITIES, OR (2) UPON DELIVERY TO THE
ISSUER OF AN OPINION OF U.S. COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT
THE SECURITIES MAY BE TRANSFERRED WITHOUT REGISTRATION PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION WHICH IS IN COMPLIANCE WITH THE SECURITIES ACT.
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PURCHASE AND SALE AGREEMENT
WITH PROXY
This PURCHASE AND SALE AGREEMENT WITH PROXY ("AGREEMENT") is made and
entered into and given as of this ___ day of March, 2003, by, between and among,
BECOR COMMUNICATIONS, INC., a Delaware corporation ("BCI"), on the one hand, and
the undersigned shareholder ("SHAREHOLDER") of ENHANCE LIFESCIENCES, INC., a
Delaware corporation ("XXXX"), on the other hand, with respect to the following;
R E C I T A L S
A. BCI and XXXX have entered into an acquisition agreement (the
"ACQUISITION AGREEMENT") which sets forth terms and conditions for the
acquisition by BCI of all of the outstanding common shares of XXXX (the "XXXX
Shares") in exchange for a total of 14,516,000 newly issued shares of BCI common
stock (the "BCI Shares"). All capitalized terms appearing in this AGREEMENT
which are not otherwise defined herein shall have the meanings given them in the
ACQUISITION AGREEMENT.
B. As a condition to the Closing of the Acquisition, the ACQUISITION
AGREEMENT requires that each of the shareholders of XXXX execute a Purchase and
Sale Agreement in the form of this AGREEMENT, signifying such shareholder's
agreement to subscribe for and receive BCI Shares in exchange for all of the
XXXX Shares owned by such shareholder.
C. The SHAREHOLDER is a shareholder of XXXX who owns that number of XXXX
Shares which is set forth on the signature page of this AGREEMENT. The
SHAREHOLDER and BCI mutually desire to enter into this AGREEMENT for the
purposes contemplated by the ACQUISITION AGREEMENT.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties agree as follows:
1. SALE AND PURCHASE OF XXXX SHARES. On the terms and subject to the
conditions set forth herein and in the ACQUISITION AGREEMENT, the SHAREHOLDER
hereby agrees to sell to BCI, and BCI agrees to purchase from the SHAREHOLDER,
all of the XXXX Shares owned by the SHAREHOLDER.
2. PURCHASE AND SALE OF BCI SHARES. On the terms and subject to the
conditions set forth herein and in the ACQUISITION AGREEMENT, the SHAREHOLDER
hereby agrees to purchase from BCI, and BCI agrees to sell to the SHAREHOLDER,
that number of the BCI Shares which is determined as follows:
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2.1 Calculation of Exchange Ratio. The number of BCI Shares to be
issued to each of the XXXX Shareholders for their respective XXXX Shares shall
be calculated in accordance with the formula in Section 2.2, using an exchange
ratio of 0.7258 (the "Exchange Ratio"). The Exchange Ratio was derived by
dividing the total number of BCI Shares to be issued (14,516,000) by the total
number of XXXX Shares to be delivered to BCI (20,000,000). In so doing, BCI
shall round the result to the nearest whole number (subject to other reasonable
adjustments needed to maintain the total number of BCI Shares to be issued is
14,516,000). No fractional shares of BCI common stock shall be issued in
connection with the Acquisition.
2.2 As part of the consideration for the ACQUISITION AGREEMENT and
this AGREEMENT, SHAREHOLDER shall execute the attached Irrevocable Limited Proxy
("PROXY"), attached as Exhibit "A", and return it to BCI with the executed copy
of this AGREEMENT. If, for any reason SHAREHOLDER fails to sign and deliver the
PROXY, but does sign, return and or deliver this AGREEMENT to BCI, then BCI
shall be entitled to use a signed copy of this AGREEMENT as irrevocable approval
and authority to vote the SHAREHOLDER's shares in accordance with the terms and
provisions of the PROXY.
2.3 SHAREHOLDER acknowledges and understands that SHAREHOLDER's
rights are subject to terms and conditions contained in the ACQUISITION
AGREEMENT and related documents.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Unless the context
otherwise requires, all references in this section to BCI Shares shall mean
those BCI Shares which are being purchased by the SHAREHOLDER pursuant to this
AGREEMENT. The SHAREHOLDER hereby represents and warrants to BCI that:
4.1 Investment Intent. The SHAREHOLDER is acquiring the BCI Shares solely
for the SHAREHOLDER's own account for investment purposes, and not with a view
to, or for offer or sale in connection with, any distribution of the BCI Shares
in violation of the Securities Act.
4.2 Access to Information. The SHAREHOLDER acknowledges that he/she/it has
received a copy of the ACQUISITION AGREEMENT, and a copy of BCI's annual report
on Form 10-KSB for the year ended May 31, 2002 (the "Form 10-KSB"), has reviewed
them carefully and understands that the purchase of the BCI Shares is a high
risk investment.
4.3 Knowledge and Experience. SHAREHOLDER has knowledge and experience in
financial and business matters such that the SHAREHOLDER is capable of
evaluating the merits and risks of an investment in the BCI Shares.
4.4 Suitability. The SHAREHOLDER has carefully considered and has, to the
extent the SHAREHOLDER deems it necessary, discussed with the SHAREHOLDER's own
professional legal, tax and financial advisers the suitability of an investment
in the BCI Shares for the SHAREHOLDER's particular tax and financial situation,
and the SHAREHOLDER has determined that the BCI Shares are a suitable investment
for the SHAREHOLDER.
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4.5 Ability to Bear Risk of Loss. The SHAREHOLDER has no need for
liquidity in its investment in the BCI Shares and is financially able to hold
the BCI Shares subject to restrictions on transfer for an indefinite period of
time. SHAREHOLDER is capable of bearing the economic risk of losing the entire
amount of its investment.
4.6 Private Offering. The offer of the BCI Shares was directly
communicated to the SHAREHOLDER by XXXX and not by BCI or BCI representatives.
At no time was the SHAREHOLDER solicited by BCI to purchase the BCI Shares or
invest in BCI.
4.7 Truth and Accuracy. All representations and warranties made by the
SHAREHOLDER are true and accurate as of the date hereof and shall be true and
accurate as of the date BCI issues the BCI Shares.
4.8 Authority. If the SHAREHOLDER is an entity, the individual executing
and delivering this AGREEMENT on behalf of the SHAREHOLDER has been duly
authorized to execute and deliver this AGREEMENT on behalf of the SHAREHOLDER,
the signature of such individual is binding upon the SHAREHOLDER, the
SHAREHOLDER is duly organized and subsisting under the laws of the jurisdiction
in which is was organized, and the SHAREHOLDER was not formed for the specific
purpose of acquiring the BCI Shares.
4.9 No Violation. The execution and delivery of this AGREEMENT and the
consummation of the transactions or performance of the obligations contemplated
by this AGREEMENT do not and will not violate any term of the SHAREHOLDER's
organizational documents, if applicable, and will not result in a breach or
default under any statute or agreement to which the SHAREHOLDER is bound.
4.10 Reliance on Own Advisers. In connection with the SHAREHOLDER's
investment in the BCI Shares, the SHAREHOLDER has not relied upon BCI or its
advisers for legal or tax advice, and has, if desired, in all cases sought the
advice of the SHAREHOLDER's own legal counsel and tax advisers.
4.12 Restrictions on Transfer. SHAREHOLDER understands that the offer and
sale of the BCI Shares to the SHAREHOLDER has not been registered or qualified
under the Securities Act, any State Laws, or any laws of jurisdictions outside
of the United States. SHAREHOLDER may not offer, sell or otherwise transfer the
BCI Shares, or any interest in the BCI Shares, and understands that BCI shall be
required to refuse to register any such transfer, unless made (i) pursuant to
registration under the Securities Act, or (ii) pursuant to an available
exemption from registration. SHAREHOLDER understands that BCI may require the
SHAREHOLDER to furnish an opinion of U.S. counsel reasonably satisfactory to BCI
that the requirements of the preceding sentence have been satisfied.
4.13 Restrictive Legend. The following restrictive legend will be placed
on the certificate representing the BCI Shares:
152
THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS ("STATE LAWS") OR ANY SECURITIES LAWS OF JURISDICTIONS
OUTSIDE OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED
UNDER THE SECURITIES ACT COVERING THE SECURITIES, OR (2) UPON DELIVERY TO THE
ISSUER OF AN OPINION OF U.S. COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT
THE SECURITIES MAY BE TRANSFERRED WITHOUT REGISTRATION PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION WHICH IS IN COMPLIANCE WITH THE SECURITIES ACT.
4.14 No Registration Rights. BCI is under no obligation and has no
intention of registering any of the BCI Shares held by SHAREHOLDER for resale
and SHAREHOLDER has no rights to force BCI to cause any such registration.
5. BCI'S REPRESENTATIONS AND WARRANTIES. BCI hereby represents and
warrants to the SHAREHOLDER that the individual executing and delivering this
AGREEMENT on behalf of BCI has been duly authorized to execute and deliver this
AGREEMENT on behalf of BCI, the signature of such individual is binding upon
BCI, and BCI is duly organized and subsisting under the laws of the jurisdiction
in which it was organized.
6. RELIANCE. The SHAREHOLDER acknowledges and understands that BCI and its
officers, directors, employees, representatives and agents may, and will, rely
on the accuracy of the SHAREHOLDER's representations and warranties in this
AGREEMENT to establish compliance with applicable securities laws. The
SHAREHOLDER agrees to indemnify and hold harmless all such parties against all
losses, claims, costs, expenses and damages or liabilities which they may suffer
or incur caused or arising from their reliance on such representations and
warranties.
7. MISCELLANEOUS.
7.1 Survival. The representations and warranties made in this AGREEMENT
shall survive the closing of the transactions contemplated by this AGREEMENT.
7.2 Assignment. This AGREEMENT is not transferable or assignable.
7.3 Execution and Delivery of AGREEMENT. BCI shall be entitled to rely on
delivery by facsimile transmission of an executed copy of this AGREEMENT, and
acceptance by BCI of such facsimile copy shall create a valid and binding
agreement between the SHAREHOLDER and BCI.
7.4 Severability. The invalidity or un-enforceability of any particular
provision of this AGREEMENT shall not affect or limit the validity or
enforceability of the remaining provisions of this AGREEMENT.
153
7.5 Entire Agreement. This AGREEMENT constitutes the entire agreement and
understanding between the parties with respect to the subject matters herein and
supersedes and replaces any prior agreements and understandings, whether oral or
written, between them with respect to such matters.
7.6 Waiver and Amendment. Except as otherwise provided herein, the
provisions of this AGREEMENT may be waived, altered, amended or repealed, in
whole or in part, only upon the mutual written agreement of the SHAREHOLDER and
BCI.
7.7 Counterparts. This AGREEMENT may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
7.8 Governing Law; Jurisdiction and Venue. This AGREEMENT is governed by
and shall be construed in accordance with the internal laws of the State of
California without reference to its rules as to conflicts of law and each party
irrevocably submits to the exclusive jurisdiction of the United States District
Court for the Central District of California, for the purposes of any proceeding
arising out of or relating to this AGREEMENT, any other transaction contemplated
hereby or thereby, provided, however, that in the event the United States
District Court refuses to accept jurisdiction over the dispute, then the matter
shall be submitted to the exclusive jurisdiction of the Superior Court in and
for the County of Los Angeles, State of California, and it related courts. Each
party further agrees that service of any process, summons, notice or document by
U.S. registered mail to such party's respective address set forth above shall be
effective service of process for any proceeding.
154
IN WITNESS WHEREOF, the parties hereto have duly executed this AGREEMENT
as of the date first above mentioned.
"BCI":
BECOR COMMUNICATIONS, INC., a Delaware Corporation
By:
--------------------------------------------------------
Xxxxx Xxxxx, President and Chief Executive Officer
"SHAREHOLDER":
SCO Capital LLC
Name of the SHAREHOLDER
By: Xxxxx Xxxxxxxxx
--------------------------------------------------------
Name and Title of Authorized Signatory
By:
--------------------------------------------------------
Signature of Authorized Signatory
4,623,346
Number of BCI Shares to be delivered to SHAREHOLDER
SHAREHOLDER's street address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX, 00000
