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EXHIBIT 2.4
FORM OF STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of this ____ day of __________________, 199__, by and among
Better Image, Inc., a Georgia corporation ("Purchaser"), and ___________________
and _______________________, each a licensed surgeon and resident of the State
of ________________ (collectively, the "Seller").
W I T N E S S E T H
WHEREAS, Seller owns all of the issued and outstanding stock of
______________________, a ____________________ corporation (the "Corporation"),
which owns certain assets used to operate a cosmetic and reconstructive surgery
practice with offices located in the facilities identified in Exhibit A
(collectively, the "Center"), and furnishes medical care to the general public
through the services of the surgeon(s) affiliated with the Seller to provide
patient care at the Center (the "Surgeon(s)"); and
WHEREAS, Seller wishes to sell to Purchaser all of Seller's right,
title and interest in and to all of the outstanding shares of capital stock of
the Corporation (the "Stock"), and Purchaser wishes to buy all of Seller's
right, title and interest in and to the Stock subject to and upon the terms and
conditions set forth herein; and
WHEREAS, Seller and Purchaser intend that the sale contemplated
hereunder, together with the acquisition of the other founding practices, and an
initial public offering of Purchaser's shares (the "IPO"), will constitute an
integrated unitary transaction and will qualify for non-recognition treatment
under Section 368(a)(1) of the Internal Revenue Code, as amended.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the premises
and the mutual covenants set forth herein, and other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged, Seller and Purchaser hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF STOCK AND CLOSING.
1.01 PURCHASE. Upon the terms and conditions set forth herein, Seller
shall sell to Purchaser and Purchaser shall purchase from Seller all of Seller's
right, title and interest in and to the Stock, free and clear of all liens,
charges, encumbrances, claims, options, and other restrictions of any nature
whatsoever.
1.02 DELIVERY OF STOCK. At Closing (as hereinafter defined) Seller
shall deliver to Purchaser validly issued certificates representing the Stock,
together with stock powers duly executed in blank. Seller shall execute and
deliver such instruments of conveyance, sale or transfer, and shall take or
cause to be taken such further action as the Purchaser or its counsel shall
request at any time or from time to time to vest, confirm or evidence in the
Purchaser good and marketable
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title to all of the Stock intended to be conveyed, sold, transferred and
delivered to the Purchaser hereunder.
1.03 CLOSING DATE. The sale, transfer and delivery of the Stock
pursuant to the terms of this Agreement and the delivery of the Purchase Price
(as hereinafter defined) shall take place as soon as all appropriate conditions
as set forth herein have been fulfilled, at the offices of King & Spalding, 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, or at such other place and date
as Purchaser and Seller shall agree. The date on which the last of all payments
and deliveries occurs is the "Closing Date", and such payments and deliveries
constitute the "Closing." The parties hereto shall use their reasonable best
efforts to satisfy all appropriate conditions as soon as possible.
SECTION 2. PURCHASE PRICE AND EXPENSES.
2.01 PURCHASE PRICE. Purchaser shall pay to Seller for the Stock at
least one hundred percent (100%) of the Corporation's Adjusted Gross Revenues
(as hereinafter defined), (the "Purchase Price"), used in preparation of
Purchaser's registration statement on Form S-1 (the "Registration Statement").
The Purchase Price shall be paid as follows:
(a) Twenty percent (20%) in cash or immediately available
funds at Closing; and
(b) The remainder in common stock of Purchaser ("Purchaser
Stock") to be valued at the initial price to the public in the IPO.
As used herein, the term "Adjusted Gross Revenue" shall be determined in
accordance with generally accepted accounting principles and shall mean all fees
and charges recorded or booked by or on behalf of the Seller as a result of
professional medical services personally furnished to patients by the Surgeon(s)
and those under the Surgeon's supervision and other fees or income generated in
their capacity as professionals after any adjustments for uncollectible
accounts, professional courtesies and other activities that do not generate a
collectible fee.
2.02 COSTS AND EXPENSES. Each party to this Agreement shall pay its own
fees, costs and expenses and those of its agents, accountants, attorneys and
investment advisors, whether or not the transactions contemplated hereby are
consummated in accordance with the terms of this Agreement.
SECTION 3. COVENANT NOT TO COMPETE.
Seller expressly acknowledges and agrees that Purchaser's business
relies upon the continued efforts and operations of Seller and Seller's equity
holders and to properly protect Purchaser's business interests, and to induce
Purchaser to enter into this Agreement and consummate the transactions
contemplated hereunder, for a period of five (5) years after the Closing Date
hereunder, Seller and each equity holder of Seller or an affiliate thereof shall
not
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(i) establish, develop or open any facility for the provision of cosmetic and
reconstructive surgical services or provide surgical services at any facility
within a ten mile radius of any facility that is affiliated with Purchaser or at
which Purchaser provides practice management or consulting services, or (ii)
solicit any patients, surgeons, employees or staff associated with Purchaser or
an affiliate thereof.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
Seller hereby represents, warrants and covenants to Purchaser that the
following statements are accurate and complete as of the date hereof and will be
accurate and complete as of the Closing Date, and acknowledges and confirms that
Purchaser is relying upon such representations, warranties and covenants in
connection with the execution, delivery and performance of this Agreement,
notwithstanding any investigation made by Purchaser or on its behalf:
4.01 ORGANIZATION OF CORPORATION. The Corporation is duly organized,
validly existing and in good standing under the laws of the State of
[________________] and has the power and authority to own and lease its
property, and to carry on its business as and where such business is now
conducted. The Corporation does not own stock or any other equity interest in
any other entity.
4.02 STOCK. Seller owns all of the issued and outstanding stock of the
Corporation and has good and marketable title to the Stock, and the right to
sell, transfer and deliver the Stock to Purchaser, free and clear of all liens,
encumbrances, claims, security interests, pledges, agreements and rights of
third parties, and upon delivery of the Stock to Purchaser, Purchaser will hold
good and marketable title to the Stock free and clear of all liens,
encumbrances, claims, security interests, pledges, agreements and rights of
third parties whatsoever. Each share of Stock has been legally and validly
issued and fully paid and nonassessable. No shares of Stock are owned by the
Corporation in treasury. There are no outstanding (a) bonds, debentures, notes
or other obligations the holders of which have the right to vote with the Seller
on any matter, (b) securities of the Corporation convertible into equity
interests in the Corporation, or (c) commitments, options, rights or warrants to
issue any such equity interests in the Corporation, to issue securities of the
Corporation convertible into such equity interests, or to redeem any securities
of the Corporation. No shares of Stock have been issued or disposed of in
violation of the preemptive rights, rights of first refusal or similar rights of
any of the Corporation's stockholder(s).
4.03 TITLE TO ASSETS. The Corporation has good and marketable title to
the assets used at the Center by the Corporation, free and clear of all liens,
encumbrances, claims, security interests, charges, pledges and rights of others,
except as disclosed on Exhibit B.
4.04 BINDING EFFECT. This Agreement and each of the agreements and
instruments contemplated hereby has been duly and validly authorized, and when
executed and delivered by the Seller will constitute the legal, valid and
binding obligations of the Seller, enforceable in accordance with its terms.
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4.05 NO CONFLICTS. The execution, delivery and performance by the
Seller of this Agreement or any agreements required hereby to be executed by
Seller and consummation of the transactions contemplated hereby, will not (i)
constitute a violation of, conflict with or constitute a default under any term
or provision of the Seller's formation documents, (ii) to the best of Seller's
knowledge, constitute a violation of any statute, ordinance, judgment, order,
decree, regulation or rule of any court, governmental authority or arbitrator,
or any license, permit or franchise applicable or relating to the Corporation or
(iii) result in the creation of any lien upon the Stock or the Corporation's
assets pursuant to the provisions of any of the foregoing.
4.06 CORPORATION'S ASSETS. Upon Closing, the Corporation's Assets will
be in good condition comparable to the condition existing on the date of this
Agreement, ordinary wear and tear excepted. Seller shall not remove any property
from the Center prior to the Closing, except for the purpose of repair or
replacement or in the ordinary course of business, and any such property or its
replacement, as the case may be, shall be property of the Corporation. Seller
shall keep all insurance policies or renewals thereof affecting or covering the
Center in full force and effect up to and including the date of Closing unless
the reason for such policies ceases or such policies are replaced in the
ordinary course of business.
4.07 TAXES. Except as set forth on Exhibit C, the Corporation has
timely filed or caused to be timely filed all federal income tax returns and all
other federal, state, county, local or city tax returns which are required to be
filed, and has paid or caused to be paid all taxes, including interest,
penalties or additions thereto, shown on such returns or on any tax assessment
received by it (including, without limitation, real and personal property taxes)
to the extent that such taxes have become due and payable on or before the
Closing Date. The Corporation has no tax liability, except for real and personal
property taxes for periods as to which such taxes have not yet become due and
payable. No events have occurred which could impose on Purchaser any liability
for any taxes, penalties, or interest due or to become due from Seller or the
Corporation. The Corporation and the Seller have not received any notice that
any tax deficiency or delinquency has been asserted against the Corporation. To
the best of Seller's knowledge, the Corporation has withheld and paid all taxes
required by law to have been withheld and paid by it.
4.08 CLAIMS AND LEGAL ACTIONS. Except as set forth on Exhibit D, there
is no claim, legal action, counterclaim, suit, arbitration, governmental
investigation or other legal, administrative or tax proceeding, nor any order,
decree or judgment, in progress, pending, or threatened against or relating to
the Seller, the Corporation, or the Center, nor does Seller know or have reason
to be aware of any basis for the same.
4.09 RELIANCE UPON TAX AND LEGAL ADVISORS. With respect to the tax and
other legal consequences of the sale of all of its right, title and interest in
and to certain of the assets used in connection with the surgical practice
conducted at the Center, Seller is relying solely upon the advice of its own tax
and legal advisors.
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4.10 SUBSEQUENT EVENTS. Except as disclosed on Exhibit E, the
Corporation has not, since December 31, 1996: (i) incurred any material
obligation or liability, entered into any contract, lease, license or
commitment, or incurred any indebtedness other than in the ordinary course of
business; (ii) made any payments to or loaned any money to any person or entity
other than in the ordinary course of business consistent with past practices;
(iii) lost or terminated any employee or supplier that has had or may have,
individually or in the aggregate, a material adverse effect on the Corporation's
business; (iv) mortgaged, pledged or subjected to any lien, charge or other
encumbrance any of the assets of the Corporation; (v) sold, transferred or
contracted to sell or transfer any of the Corporation's assets (other than
assets that the Corporation is prohibited from owning under applicable law
subsequent to the Closing, or assets of the Corporation not directly used in
connection with the operation of the Center), except in the ordinary course of
business consistent with past practices; (vi) redeemed, purchased, sold or
issued any stock, bonds or other securities to persons other than the Seller;
(vii) declared or paid a distribution, payment or dividend of any kind on the
capital stock of the Corporation; or (viii) suffered any material adverse change
in the business of the Corporation or to the assets of the Corporation.
4.11 CONSENTS. Except as set forth on Exhibit F, there are no persons
whose consent is necessary for Seller to consummate the transactions
contemplated by this Agreement. Each party hereto agrees to cooperate with each
other party to obtain the consents, approvals and authorizations of third
parties and governmental authorities that any such party reasonably determines
to be necessary to consummate the transactions contemplated by this Agreement.
4.12 NO MANAGEMENT CONTRACT OR LEASE. Except for any lease agreement(s)
between Seller and Seller's landlord(s) (copies of which lease agreement(s) have
been provided to Purchaser by Seller), there will be no management contracts or
leases for the Center at the time of Closing.
4.13 ACCURACY OF INFORMATION. No representations, warranties or
covenants by Seller, nor any statement, list or certificate furnished or to be
furnished to Purchaser pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of fact or
omits or will omit to state a fact necessary to make the statements contained
therein not misleading in light of the circumstances under which they were made.
4.14 NOTICE AS TO CHANGES. Seller will promptly advise Purchaser in
writing of the occurrence of any events of which Seller becomes aware after the
date of this Agreement and prior to Closing relating to any of the matters which
are the subject of the covenants, representations and warranties contained
herein.
4.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The warranties,
representations and covenants of the Seller contained in this Agreement shall be
true and correct as of the Closing Date with the same force and effect as if
given and made on and as of the date and time of Closing, and such
representations, warranties and covenants shall survive the Closing and the
consummation of the transactions contemplated by this Agreement for the period
of three (3) years.
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SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser hereby represents, warrants and covenants to Seller as
follows, and acknowledges and confirms that the Seller is relying upon such
representations, warranties and covenants in connection with the execution,
delivery and performance of this Agreement, notwithstanding any investigation
made by Seller or on its behalf:
5.01 ORGANIZATION OF PURCHASER. Purchaser is a corporation organized
and in existence under the laws of the State of Georgia and has all requisite
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
5.02 AUTHORIZATIONS AND BINDING EFFECT. This Agreement has been duly
and validly authorized, and when executed and delivered by Purchaser will
constitute the legal, valid and binding obligation of Purchaser, enforceable in
accordance with its terms. All other corporate proceedings required by the
Articles of Incorporation or the Bylaws of Purchaser or otherwise for the
execution and delivery of this Agreement, and for the consummation of the
transactions contemplated hereby, have been duly taken.
5.03 NO VIOLATION. The execution, delivery and performance by the
Purchaser of this Agreement or any agreements required hereby to be executed by
Purchaser, will not (i) constitute a violation of, conflict with or constitute a
default under any term or provision of the Purchaser's Articles of Incorporation
or Bylaws, each as amended, (ii) to the best of Purchaser's knowledge,
constitute a violation of any statute, ordinance, judgment, order, decree,
regulation or rule of any court, governmental authority or arbitrator or any
license, permit or franchise applicable or relating to the Center or (iii)
result in the creation of any lien upon the Purchaser's assets pursuant to the
provisions of any of the foregoing.
5.04 ACCURACY OF INFORMATION. No representations, warranties or
covenants by Purchaser or the members, officers or directors of the Purchaser,
nor any statement, list or certificate furnished or to be furnished to the
Seller pursuant hereto, or in connection with the transactions contemplated
hereby, contains or will contain any material untrue statement of fact or omits
or will omit to state a material fact necessary to make the statements contained
therein not misleading in light of the circumstances under which they were made.
5.05 CLAIMS AND LEGAL ACTIONS. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in
progress, pending, or threatened against or relating to Purchaser or the
business or operations of the Purchaser, nor does Purchaser know or have reason
to be aware of any basis for the same.
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5.06 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
warranties and representations of the Purchaser contained herein shall be true
and correct as of the Closing with the same force and effect as if given and
made on and as of the date and time of Closing, and such representations and
warranties shall survive the Closing and the consummation of the transactions
contemplated by this Agreement for the period of three (3) years.
5.07 NOTICE AS TO CHANGES. Purchaser shall promptly advise Seller in
writing of the occurrence of any events of which Purchaser becomes aware after
the date of this Agreement and prior to Closing relating to any of the matters
which are the subject of the covenants, representations and warranties contained
herein.
SECTION 6. CONVEYANCES.
At Closing, the Seller shall deliver to Purchaser certificates
evidencing the Stock, together with executed blank stock powers. Good and
marketable title to the Stock shall be conveyed from Seller to Purchaser free
and clear of all liens, claims, charges, encumbrances, restrictions, and
assessments (including, without limitation, any assessments payable in
installments, all of which installments have not been paid), pledges, agreements
and other rights of third parties.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to perform this Agreement are subject to
the satisfaction of the following conditions, each of which may be waived in
writing by Purchaser:
7.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
OBLIGATIONS. At Closing, Seller shall certify to Purchaser that (i) the
representations and warranties of Seller herein contained are true and correct
as of the Closing Date with the same effect as though made on the Closing Date;
and (ii) Seller has performed all obligations and complied with all covenants
required by this Agreement to be performed or complied with by Seller prior to
the Closing Date.
7.02 DELIVERIES. Seller hereby agrees to, and shall, deliver or cause
to be delivered to the Purchaser at the Closing the following, each of which
shall be in form and substance satisfactory to the Purchaser:
(a) CERTIFICATES OF STOCK. The certificate(s) evidencing all
of the issued and outstanding Stock of the Corporation together with
executed blank stock powers;
(b) OTHER INSTRUMENTS. Such other instruments of transfer and
conveyance as may be necessary to vest in the Purchaser good and
marketable title to the Stock to be sold hereunder and as shall be
reasonably requested by Purchaser; and
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(c) CERTIFICATES. Certificates or affidavits of Seller in form
and substance satisfactory to Purchaser regarding the accuracy of
Seller's representations, warranties and covenants contained herein.
7.03 NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transactions contemplated hereby shall be
pending or shall have been issued and remain in effect.
7.04 AUTHORIZATION OF AGREEMENT BY CORPORATION. All actions necessary
to authorize the execution, delivery and performance of this Agreement and all
documents contemplated herein and therein shall have been duly and validly taken
by the officers of the Corporation, and Seller and the Corporation shall have
full power and right to consummate the transactions contemplated hereby or
thereby on the terms provided herein or therein. Seller shall provide Purchaser
at Closing with certified resolutions of the Corporation's stockholders and
board of directors approving the execution of this Agreement and the
transactions contemplated hereby.
7.05 GOVERNMENTAL CONSENTS, APPROVALS AND AUTHORIZATIONS. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
governmental commission, board or other regulatory body that are required for or
in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have been obtained or
made.
7.06 INSPECTION AND SURVEY. Purchaser and/or its agents (including
accountants, lawyers and investment bankers) shall have conducted, completed and
be satisfied with (i) a physical plant inspection of the Center and an
inspection of the property, and (ii) an inspection of the Corporation's
business, legal and financial books and records, including any leases for office
space, furniture or equipment. Seller shall make such items available to
Purchaser and/or its agents at reasonable times and in such a manner so as not
to unreasonably disrupt the Corporation's or the Center's normal business.
7.07 MATERIAL ADVERSE CHANGE. There shall have been no material adverse
change after the date of the most recent financials in the results of
operations, business, assets, properties, liabilities, financial position or
affairs of the Corporation, which in the good faith judgment of the Purchaser
has had, or will have a material adverse effect on the Corporation.
7.08 PUBLIC OFFERING OR FIRM UNDERWRITING. Purchaser shall have
completed a public offering for the sale of at least $25,000,000 of common stock
of Purchaser.
7.09 CASUALTY LOSSES. On or prior to the time of Closing, the Center
and the Corporation shall not have sustained any loss, whether or not insured,
by reason of physical damage to the Center caused by fire, flood, accident,
explosions or other calamity which would adversely affect the carrying on of its
business in the normal and regular course.
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7.10 ACCOUNTING TREATMENT. Purchaser shall have received approval from
its auditors and an indication of no objection from the Securities and Exchange
Commission (the "SEC") as to Purchaser's and the Corporation's, along with other
surgical practices, "roll-up" accounting treatment, on terms acceptable to
Purchaser.
7.11 EMPLOYMENT AGREEMENTS. Seller and any Surgeon(s) who deliver
patient care at the Center on average more than ten (10) days per month shall
enter into five (5) year employment agreements, which employment agreements
shall contain a non-competition agreement with respect to Purchaser.
7.12 CORPORATION TRANSACTIONS. Seller shall file with the appropriate
Secretary of State an amendment to the Corporation's Articles of Incorporation
and shall take such other action as may be necessary to change the Corporation's
status and purpose to that of a general business corporation in accordance with
all applicable laws, rules and regulations. Seller shall form a new professional
entity ("New Entity") under which Seller shall conduct its surgical practice at
the Center. In addition, the New Entity shall (i) own any assets of the
Corporation which applicable law prohibits Purchaser from owning, (ii) enter
into a twenty (20) year service or consulting agreement with Purchaser, and
(iii) enter into five (5) year employment agreements (as described in Section
7.11) with Seller and all Surgeons who deliver patient care at the Center on
average more than ten (10) days per month, or who have an equity interest in New
Entity.
SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER.
The obligations of Seller to perform this Agreement are subject to the
satisfaction of the following conditions, each of which may be waived by Seller:
8.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
OBLIGATIONS. At Closing, Purchaser shall certify to Seller that (i) the
representations and warranties of the Purchaser herein contained are true and
correct as of the Closing Date with the same effect as though made on the
Closing Date; and (ii) Purchaser has performed all obligations and complied with
all covenants required by this Agreement to be performed or complied with by it
prior to the Closing Date.
8.02 DELIVERY OF THE PURCHASE PRICE. Purchaser shall have delivered to
Seller the Purchase Price, as described in Section 2.01.
8.03 GOVERNMENTAL CONSENTS, APPROVALS AND AUTHORIZATIONS. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
governmental commission, board or other regulatory body that are required for or
in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have been obtained or
made.
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8.04 NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transactions contemplated hereby shall be
pending or shall have been issued and remain in effect.
8.05 INITIAL PUBLIC OFFERING. Purchaser shall have completed the IPO
for the sale of at least $25,000,000 of common stock of Purchaser.
SECTION 9. PRORATIONS AND ADJUSTMENTS.
The following items shall be adjusted based on the Closing Date on a
pro rata basis between Seller and Purchaser at the time of the Closing or after
the Closing as agreed upon by Purchaser and Seller:
(a) Personal property ad valorem taxes on assets retained by the
Corporation for the 12 month period succeeding the applicable
tax xxxx due date;
(b) Charges for electricity, gas, water and sewer and other
utilities to be based on projections from most recent invoices
or on recent meter readings; and
(c) Such other items as may be agreed upon by Seller and
Purchaser.
SECTION 10. FEDERAL SECURITIES LAW.
10.01 INVESTMENT REPRESENTATION. Seller acknowledges that the shares of
Purchaser Stock to be delivered to the Seller at the Closing pursuant to this
Agreement have not been and will not be registered under the Securities Act of
1933 ("1933 Act") and may not be sold, transferred, pledged or otherwise
disposed of in the absence of an effective registration statement covering the
shares under the 1933 Act and applicable state securities laws, or unless an
exemption from such registration is available and a legal opinion to that effect
is delivered to and accepted by the Purchaser. The Purchaser Stock to be
acquired by the Seller hereunder is being acquired solely for Seller's own
account, for investment purposes only and with no present intention of
distributing, selling or otherwise disposing of it in connection with a
distribution.
10.02 COMPLIANCE WITH LAW. Seller represents and warrants that none of
the shares of Purchaser Stock issued to Seller will be offered, sold, assigned,
pledged, hypothecated, transferred or otherwise disposed of, except after full
compliance with all of the applicable provisions of the 1933 Act and the rules
and regulations of the SEC and applicable state securities laws and regulations.
All certificates evidencing shares of Purchaser Stock issued hereunder shall
bear the following restrictive legend, as well as any legend required by the
securities or blue sky laws of the state where Seller resides:
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THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AFTER RECEIPT
OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT AN EXEMPTION
FROM REGISTRATION IS AVAILABLE UNDER APPLICABLE SECURITIES LAWS.
10.03 INVESTMENT RISK. Seller represents and warrants that Seller is
able to bear the economic risk of an investment in Purchaser Stock acquired
pursuant to this Agreement and can afford to sustain a total loss of such
investment and has such knowledge and experience in financial and business
matters that Seller represents and warrants that Seller is capable of evaluating
the merits and risks of the proposed investment and therefore has the capacity
to protect Seller's interests in connection with the acquisition of Purchaser
Stock. Seller or his representatives have had an adequate opportunity to ask
questions and receive answers from Purchaser concerning any and all matters
relating to Purchaser and the transactions described herein.
10.04 ACCREDITED INVESTOR STATUS. Seller represents and warrants that
Seller is an "accredited investor" as defined in Rule 501(a) promulgated under
the 0000 Xxx.
10.05 PIGGYBACK REGISTRATION RIGHTS. Purchaser has no obligation to
register the shares of Purchaser Stock that Seller will receive hereunder;
provided, however, in the event Purchaser, at any time within 24 months after
the Closing Date, contemplates and undertakes a public offering of its shares of
common stock and the filing of a registration statement with the SEC in
connection therewith, Purchaser shall notify the Seller in writing of the
proposed offering and of any material terms and conditions of the offering known
to Purchaser. Purchaser shall use all reasonable efforts to have included in
such registration statement all or any portion of the shares distributed to
Seller hereunder, subject, however, to such terms, conditions and limitations
(including, without limitation, to the number of shares that Seller may offer to
sell in such registration statement) as any underwriter retained by Purchaser in
connection with such offering may require, and provided that the public offering
and sale of such shares is not restricted by any legend or other condition
imposed by any state securities commissioner. Seller shall take all such action
and execute all such documents including, but not limited to, the execution and
delivery of an underwriting agreement in form and substance in all material
respects the same as the underwriting agreement to be signed by Purchaser, as
may be requested by Purchaser. The cost of such public offering shall be borne
by Purchaser, except that Seller shall pay its proportionate share of
underwriters' commissions and discounts and the costs and fees of any attorneys,
accountants and other persons retained by Seller in connection with the
offering. The provisions of this Section 10.05 shall not apply to registration
statements filed in connection with employee stock purchase and option programs
by Purchaser or in connection with actual or proposed acquisitions by Purchaser.
Seller shall notify Purchaser of its election to exercise its rights herein
specified in writing within thirty (30) days after such written notice to the
Seller by Purchaser.
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SECTION 11. TERMINATION.
11.01 RIGHT OF TERMINATION. This Agreement and the transactions
contemplated by this Agreement may be terminated at any time prior to the
Closing Date:
(a) By the mutual consent of the Purchaser and the Seller,
(b) By the Purchaser in the event that the conditions set forth
in Sections 4 and 7 of this Agreement shall not have been satisfied or
waived in writing on or before the Closing.
(c) By the Seller in the event that the conditions set forth in
Sections 5 and 8 of this Agreement shall not have been satisfied or
waived in writing on or before the Closing.
(d) By either party upon written notice after June 30, 1999.
11.02 NOTICE OF TERMINATION. Notice of termination of this Agreement
shall be given by the party so terminating to the other parties hereto in
accordance with the provisions of Section 13 of this Agreement.
11.03 EFFECT OF TERMINATION. In the event that this Agreement is
terminated pursuant to this Section 11, this Agreement shall be void and have no
further force and effect, without any liability on the part of any of the
parties hereto (or their respective members, stockholders, directors or
officers, if any).
SECTION 12. DESCRIPTIVE HEADINGS.
The descriptive headings of this Agreement are for convenience only and
shall not control or affect the meaning or construction of any provision of this
Agreement.
SECTION 13. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed given if (a) delivered by hand, (b) mailed by registered or
certified mail (return receipt requested), (c) telecopied and immediately
confirmed, or (d) sent by overnight delivery, to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice) and shall be deemed given on the date on which so hand-delivered or so
telecopied, on the third business day following the date on which so mailed, if
deposited in the United States mail, or on the first business day following the
date on which sent by overnight delivery:
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IF TO PURCHASER:
Better Image, Inc.
Two Midtown Plaza
Suite 1220
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WITH A COPY TO:
King & Spalding
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IF TO SELLER:
---------------------------
---------------------------
---------------------------
Attn:
----------------------
Telecopier:
---------------
Telephone:
----------------
SECTION 14. COUNTERPARTS.
This Agreement may be executed in counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts has been signed by each of the parties and delivered to the
other parties.
SECTION 15. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia without regard for its
principles of conflicts of laws.
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SECTION 16. ASSIGNABILITY.
This Agreement shall not be assignable by the Seller without the prior
written consent of the Purchaser and shall be assignable by Purchaser to any
person, firm or corporation that controls or is under common control with
Purchaser.
SECTION 17. WAIVERS AND AMENDMENTS.
Any term or provision of this Agreement may be waived at any time by
the party that is entitled to the benefits thereof, and any term or provision of
this Agreement may be amended or supplemented at any time by the mutual consent
of Purchaser and Seller, except that any waiver of any term or condition, or any
amendment or supplementation, of this Agreement must be in writing. A waiver of
any breach or failure to enforce any of the terms or conditions of this
Agreement shall not in any way affect, limit or waive a party's rights hereunder
at any time to enforce strict compliance thereafter with every term or condition
of this Agreement.
SECTION 18. THIRD PARTY RIGHTS.
Notwithstanding any other provision of this Agreement, this Agreement
shall not create any rights or benefits on behalf of any employee of Seller or
the Corporation, third party or other person, and this Agreement shall be
effective only as between the parties hereto, their successors and permitted
assigns.
SECTION 19. ENTIRE AGREEMENT.
This Agreement (including the Exhibits, agreements, documents and
instruments referred to herein) constitutes the entire agreement, and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them with respect to the subject matter hereof.
SECTION 20. SEVERABILITY.
In the event that any one or more of the provisions contained in this
Agreement shall be declared invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall remain in full force and effect.
SECTION 21. EXHIBITS.
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The parties shall have until Closing to agree upon all information to
be filed as a part of the Exhibits to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
SELLER:
By:
-----------------------------------------
, M. D.
---------------------
By:
-----------------------------------------
, M. D.
---------------------
PURCHASER:
BETTER IMAGE, INC.
By:
-----------------------------------------
Xxxxxxxx X. Xxxxxxx, Chairman
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