SECURITIES REPURCHASE AGREEMENT
MEDCARE TECHNOLOGIES, INC. ("Buyer"), and the undersigned stockholder
("Seller"), hereby enter into and agree as provided in this Securities
Repurchase Agreement dated as of November 29, 2000 (the "Agreement"):
1. Subject Matter of Agreement.
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(a) Seller is the owner of certain shares of Series B Convertible
Preferred Stock of Buyer (the "Shares") listed on the signature page
hereto, acquired pursuant to a Securities Purchase Agreement dated May
18, 1999 (the "Securities Agreement").
(b) Buyer desires to purchase the Shares from Seller, and Seller desires
to sell the Shares to Buyer, as provided in this Agreement.
2. Sale and Purchase. Upon and subject to the terms and conditions hereof,
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Seller hereby agrees to sell, transfers and assign to Buyer, and Buyer
agrees to purchase, all of Seller's right, title and interest in and to the
Shares. To further evidence such assignment, at the Closing, Seller will
deliver to Buyer the certificates evidencing the Shares properly endorsed
to Buyer (the "Certificates"), to the extent Buyer is not in possession of
the Certificates. Buyer acknowledges that it is in possession of Seller's
Certificates.
3. Purchase Price. The purchase price for all of the Shares is a per Share
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cash payment of $1366.00.
4. Seller's Representations and Warranties. Seller represents and warrants to
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Buyer that:
(a) The execution, delivery and performance of this Agreement and each of
the other documents prescribed by this Agreement to which Seller is a
party have been duly authorized by all necessary action on the part of
Seller. This Agreement and all such other documents have been duly
executed and delivered by Seller and constitute the valid and binding
obligations of Seller enforceable against Seller in accordance with
their respective terms.
(b) The execution, delivery and performance by Seller of this Agreement
and the other documents prescribed by this Agreement to which Seller
is a party do not conflict with, constitute a default under, or result
in a violation of, the organizational documents of Seller, or any
agreement or instrument to which Seller is bound.
(c) Seller is the sole legal and beneficial owner of the Shares and has
not pledged or otherwise granted a lien or security interest in
respect of the Shares.
5. Buyer's Representations and Warranties. Buyer represents and warrants to
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Seller that:
(a) Buyer is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite
power to own its assets, to carry on its business and to enter into
and perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement and each of
the other documents prescribed by this Agreement to which Buyer is a
party have been duly authorized by all necessary actions on the part
of Buyer. This Agreement and all such documents have been duly
executed and delivered by Buyer and constitute the valid and binding
obligations of Buyer enforceable against Buyer in accordance with
their respective terms.
(c) The execution, delivery and performance by Buyer of this Agreement and
the other documents prescribed by this Agreement to which Buyer is a
party do not conflict with, constitute a default under, or result in a
violation of, the organizational documents of Buyer, any agreement or
instrument to which Buyer is bound, or any law, ordinance, rule,
regulation, judgment, order or decree to which Buyer is subject.
6. Buyer's Indemnification. Effective upon the Closing, Buyer agrees to
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indemnify, hold harmless and defend Seller from and against any liability,
loss, damage, cost or expense (including reasonable attorneys' fees)
incurred by Seller as a result of or in connection with any breach by Buyer
of any representation, warranty, covenant or other agreement under this
Agreement.
7. Releases
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(a) Effective upon the Closing, Seller, on its own behalf and on behalf of
each of its affiliates, hereby releases and forever discharges Buyer and its
affiliates and their respective heirs, successors, assigns, agents,
representatives, officers, directors, shareholders, employees, lawyers,
insurers, and all persons acting by, through, under or in concert with them, or
any of them, from any and all manner of action or actions, causes or causes of
action, in law or in equity, suits, debts, liens, contracts, agreements,
promises, liabilities, claims, demands, damages, losses, costs or expenses of
any nature whatsoever, known or unknown, fixed or contingent, which Seller or
any of its affiliates now have or may hereafter have (directly, derivatively or
otherwise) against any of the persons or entities specified above by reason of
any or all acts, omissions, events, things or facts from the beginning of time
through and including the Closing including, without limitation, arising with
respect to the purchase, ownership or disposition of the Shares or arising under
the Securities Purchase Agreement; provided the foregoing release and discharge
shall not affect rights and obligations arising under this Agreement, the
Warrants (as defined in the Securities Purchase Agreement) or
under Sections 6 or 7 of the Registration Rights Agreement (as defined in the
Securities Purchase Agreement) or Section 8 of Securities Purchase Agreement as
it relates to matters described in clause C of Section 8 of Securities Purchase
Agreement.
(b) Effective upon the Closing, Buyer on its own behalf and on behalf of
its affiliates, hereby releases and forever discharges Seller and its affiliates
and their respective heirs, successors, assigns, agents, representatives,
officers, directors, shareholders, employees, lawyers, insurers, and all persons
acting by, through, under or in concert with it, from any and all manner of
action or actions, causes or causes of action, in law or in equity, suits,
debts, liens, contracts, agreements, promises, liabilities, claims, demands,
damages, losses, costs or expenses of any nature whatsoever, known or unknown,
fixed or contingent, which they now have or may hereafter have (directly,
derivatively or otherwise) against any of the persons specified above by reason
of any or all acts, omissions, events, things or facts from the beginning of
time through the Closing, including, without limitation, arising with respect to
the purchase, ownership or disposition of the Shares or arising under the
Securities Purchase Agreement; provided the foregoing release shall not affect
rights and obligations arising under this Agreement, The Warrants or under
Sections 6 or 7 of the Registration Rights Agreement (as defined in the
Securities Purchase Agreement).
9. Closing.
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The closing hereunder (the "Closing") shall occur on November 29,
2000. At the Closing, Seller shall tender the Certificates to the extent
not in the possession of buyer and Buyer shall make payment as provided
herein by wire transfer to the accounts set forth on the signature page of
this Agreement (or such other account as may be noticed in writing to Buyer
not less than 24 hours prior to the Closing).
10. Miscellaneous.
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(a) All representations, warranties, covenants and agreements contained in
this Agreement will survive the Closing.
(b) All notices, demands or other communications under or in connection
with this Agreement will be in writing and will be sufficiently given
if delivered by courier (including overnight delivery service) or sent
by facsimile, addressed as follows:
(i) If to Seller, to:
at the addresses and/or facsimile numbers set forth on the
signature page hereto
(ii) If to Buyer, to:
Medcare Technologies, Inc.
0000 X. 00/xx/ Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxx Xxxxxx
Telecopy: (000) 000-0000
or to such other address with respect to any party as such party may
from time to time indicate in a written notice (as provided above) to
the other party. Any such notice, demand or communication shall be
deemed to have been if personally delivered or sent by facsimile, on
the date received.
(c) This Agreement and the documents identified in this section constitute
the entire agreement and understanding between the parties with
respect to the subject matter of this Agreement and supersedes any
prior negotiations, agreements, letters of intent, understandings or
arrangements between the parties with respect to such subject matter.
(d) Except as otherwise provided in this Agreement, the terms and
provisions of this Agreement will inure to the benefit of and be
binding upon the parties and their respective successors or assigns.
(e) No party will be entitled to assign this Agreement or any of its
rights under this Agreement without the prior written consent of the
other party.
(f) This Agreement will in all respects be governed by and construed in
accordance with the laws of the State of New York, including all
matters of construction, validity and performance, without regard to
its principles of conflicts of laws.
(g) No term or provision of this Agreement may be modified, amended or
waived except by an instrument in writing signed by the party against
whom enforcement of such modification, amendment or waiver is sought.
(h) The captions in this Agreement are for convenience of reference only
and will not define or limit any of the terms or provisions in this
Agreement.
(i) This Agreement may be executed in any number of counterparts, and by
any party on separate counterparts, each of which will constitute an
original, and all of which together will constitute one and the same
instrument. The Agreement may also be executed and transmitted by
facsimile, with facsimile signatures being deemed original signatures.
(j) All references in this Agreement to Sections are to Sections contained
in this Agreement unless a different document is expressly specified.
(l) Seller and Buyer shall have the right to approve before issuance any
press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that Buyer shall
be entitled, without the prior approval of Seller, to make any press
release or other public disclosure with respect to such transactions
as is required by applicable law and regulations (although Seller
shall be consulted by Buyer in connection with any such press release
or other public disclosure prior to its release and shall be provided
with a copy thereof).
(m) To the extent that Buyer makes a payment or payments to Seller
hereunder or Seller enforces or exercises its rights hereunder, and
such payment or payments or the proceeds of such enforcement or
exercise or any part thereof are subsequently invalidated, declared to
be fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to Buyer,
a trustee, receiver or an other person under any law (including,
without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as
if such payment had not been made or such enforcement or setoff had
not occurred.
Signature page for Securities Repurchase Agreement
EXECUTED as of the date first written above.
_____________________________________
Name of Seller
By:
_____________________________________
Printed:
_____________________________________
Title:
_____________________________________
Number of Shares: ________________
Address and facsimile for notice:
________________________
________________________
________________________
( ) - (fax)
Address and facsimile for counsel:
________________________
________________________
________________________
( ) - (fax)
MEDCARE TECHNOLOGIES, INC., as Buyer
By: _________________________________
a duly authorized signatory
