Exhibit 10.19
Option to Purchase Stock Agreement Dated October 1, 1999 Between
▇▇▇▇▇▇▇.▇▇▇, Inc., BioLynx Outsource Services, Inc., and
United Capital Investment Group, Inc.
Exhibit 10.19
OPTION TO PURCHASE STOCK AGREEMENT
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This Agreement ("Agreement") is entered into this date, is by and among
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▇▇▇▇▇▇▇.▇▇▇, Inc., a Texas corporation and ("Purchaser"), BioLynx Outsource
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Services, Inc., a Texas corporation ("Corporation"), and United Capital
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Investment Group, Inc. ("Seller").
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WHEREAS, the Corporation presently has outstanding a single class of common
stock ("Shares"), of which 1,000 Shares have been issued to Seller; and
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WHEREAS, said Shares are the only issued and outstanding capital stock of
the Corporation; and
WHEREAS, Purchaser desires an option to purchase from Seller and Seller
desires to grant Purchaser an option to purchase all of the Shares owned by
Seller on the terms and subject to the conditions set forth herein.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. Purchase of Shares.
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1.1 Purchase of Shares. Subject to the terms and conditions set forth
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herein, at the Closing (as defined below) Seller will sell all of the Shares
owned by Seller to Purchaser and Purchaser will purchase all of the Shares owned
by Seller from Seller, said Shares constituting one hundred percent (100%) of
all of the issued and outstanding capital stock of the Corporation as of the
Closing.
1.2 Purchase Price. Purchaser will pay to Seller, subject to the
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adjustment noted below, the sum of $1,446,347.76 for the Seller's Shares.
1.3 Adjustments to Purchase Price. At Closing, the following adjustments
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will be made to the Purchase Price:
The Purchase Price will be calculated on the basis of the average
Gross Profit per week for BioLynx Outsource Services, Inc. for each of
the last four weeks (October 8, 1999, October 15, 1999, October 22, 1999
and October 29, 1999) in October, 1999 (the "Average Gross Profit").
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Gross Profit is defined as: (invoiced amounts for the week plus
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miscellaneous deductions) less (Employer's portion of FICA/Medicare
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payable, plus the Employer's portion of the federal and state
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unemployment taxes [FUTA, SUTA at .24 SUTA rate], plus Gross Wages).
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Average Gross Profit will then be multiplied by 78 to determine the
Purchase Price (referred to herein as the "Purchase Price". The Purchase
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Price will then be adjusted to reflect this proper amount.
1.4 Payment of Purchase Price. The Purchase Price will be paid to the
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Seller as follows: (i) the Purchaser will pay the Seller the sum of $500,000.00
on or before December 1, 1999; and (ii) the Purchaser will deliver to the Seller
Convertible Preferred Stock for the balance of the Purchase Price with a
liquidation privilege equal to $946,347.76 (this amount may change based upon
the calculation in paragraph 1.3 above), bearing an eight percent (8%) non-
cumulative dividend. The Preferred Stock will, at the option of the holder of
the stock, be convertible into Common Stock of the Corporation at the recited
amount for the liquidation privilege, together with any declared but unpaid
dividend, divided by $3.30 per share of common stock.
1.5 Option. In consideration of the non-refundable sum of $100.00, paid
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by the Purchaser directly to the Seller, independent of any other consideration
required by this Agreement, Purchaser and the Seller agree as follows: Purchaser
shall have the option to terminate this Agreement at any time by giving written
notice of termination to the
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Seller. On such termination, all of Purchaser's obligations hereunder shall be
terminated. If the Purchaser does not give notice of termination, Purchaser's
right of termination shall be waived.
Section 2. Representations and Warranties of the Corporation and Seller.
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As a material inducement to Purchaser to enter into this Agreement and purchase
the Shares, Seller and the Corporation, jointly and severally, represent and
warrant that:
2.1 Organization and Corporate Power. The Corporation is a corporation
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duly incorporated and validly existing under the laws of the state of Texas and
the Corporation is qualified to do business in every jurisdiction in which its
ownership of property or conduct of business requires it to qualify. The
Corporation has all requisite corporate power and authority and all material
licenses, permits, and authorizations necessary to own and operate its
properties and to carry on its business as now conducted. The copies of the
Corporation's charter documents and bylaws have been furnished to Purchaser's
counsel reflect all amendments made thereto at any time prior to the date of
this Agreement and are correct and complete.
2.2 Capital Stock and Related Matters. The authorized capital stock of
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the Corporation consists of 3,000,000 shares of preferred stock and 20,000,000
shares of common stock, 1,000 of which are issued and outstanding and are owned,
beneficially and of record, by Seller and no other stock of the Corporation is
issued and outstanding. The Corporation does not have outstanding and has not
agreed, orally or in writing, to issue any stock or securities convertible or
exchangeable for any shares of its stock, nor does it have outstanding nor has
it agreed, orally or in writing, to issue any options or rights to purchase or
otherwise acquire its stock. The Corporation is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its stock. The Corporation has not violated any applicable securities
laws or regulations in connection with the offer or sale of its securities other
than violations that have been, or will before the Closing have been, corrected
by post-issuance filings. All of the outstanding shares of the Corporation's
capital stock are validly issued, fully paid, and non-assessable. Seller has,
and upon purchase thereof pursuant to the terms of this Agreement Purchaser will
have, good and marketable title to the Shares, free and clear of all security
interests, liens, encumbrances, or other restrictions or claims, subject only to
restrictions as to marketability imposed by securities laws. Assuming that the
representations in Section 3.6 are true and correct, neither Seller nor the
Corporation has violated or will violate any applicable securities laws in
connection with the offer or sale of the Shares to Purchaser hereunder.
2.3 Subsidiaries. The Corporation does not own or hold any rights to
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acquire any shares of stock or any other security or interest in any other
corporation or entity.
2.4 Conduct of Business; Liabilities. The Corporation is not in default
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under, and no condition exists that with notice or lapse of time would
constitute a default of the Corporation under (i) any mortgage, loan agreement,
evidence of indebtedness, or other instrument evidencing borrowed money to which
the Corporation is a party or by which the Corporation or the properties of the
Corporation are bound or (ii) any judgment, order, or injunction of any court,
arbitrator, or governmental agency that would reasonably be expected to affect
materially and adversely the business, financial condition, or results of
operations of the Corporation taken as a whole.
2.5 Financial Statements. The audited balance sheet and income statement
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of the Corporation as of July 31, 1999, and the income statement for the period
ending July 31, 1999 (collectively the "July 31, 1999 Financial Statements"),
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fairly presents the financial position of the Corporation as at July 31, 1999,
and has been prepared in accordance with generally accepted accounting
principles, consistently applied, and in a manner substantially consistent with
prior financial statements of the Corporation. Except as contemplated by or
permitted under this Agreement, there are no adjustments that would be required
on review of the July 31, 1999 Financial Statements that would, individually or
in the aggregate, have a material negative effect upon the Corporation's
reported financial condition.
2.6 No Undisclosed Liabilities. Except for liabilities and obligations
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incurred in the ordinary course of business since July 31, 1999 ("Statement
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Date"), neither the Corporation nor any of the property of the Corporation is
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subject to any material liability or obligation that was required to be included
or adequately reserved against in the July 31, 1999 Financial Statements or
described in the notes thereto and was not so included, reserved against, or
described.
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2.7 Absence of Certain Changes. Except as contemplated or permitted by
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this Agreement, since the Statement Date there has not been:
2.7.1 any material adverse change in the business, financial
condition, operations, or assets of the Corporation;
2.7.2 Any damage, destruction, or loss, whether covered by insurance
or not materially adversely affecting the properties or business of the
Corporation;
2.7.3 Any sale or transfer by the Corporation of any tangible or
intangible asset other than in the ordinary course of business, any
mortgage or pledge or the creation of any security interest, lien, or
encumbrance on any such asset, or any lease of property, including
equipment, other than tax liens with respect to taxes not yet due and
contract rights of customers in inventory;
2.7.4 Any declaration, setting aside, or payment of a distribution in
respect of or the redemption or other repurchase by the Corporation of any
stock of the Corporation;
2.7.5 Any material transaction not in the ordinary course of business
of the Corporation;
2.7.6 The lapse of any material trademark, assumed name, trade name,
service ▇▇▇▇, copyright, or license or any application with respect to the
foregoing;
2.7.7 The grant of any increase in the compensation of officers or
employees (including any such increase pursuant to any bonus, pension,
profit-sharing, or other plan) other than customary increases on a periodic
basis or required by agreement or understanding in the ordinary course of
business and in accordance with past practice;
2.7.8 The discharge or satisfaction of any material lien or
encumbrance or the payment of any material liability other than current
liabilities in the ordinary course of business;
2.7.9 The making of any material loan, advance, or guaranty to or for
the benefit of any person except the creation of accounts receivable in the
ordinary course of business; or
2.7.10 An agreement to do any of the foregoing.
2.8 Title and Related Matters. The Corporation has good and marketable
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title to all of its property, real and personal, and other assets included in
the July 31, 1999 Financial Statements (except properties and assets sold or
otherwise disposed of subsequent to the Statement Date in the ordinary course of
business or as contemplated in this Agreement), free and clear of all security
interests, mortgages, liens, pledges, charges, claims, or encumbrances of any
kind or character, except (i) statutory liens for property taxes not yet
delinquent or payable subsequent to the date of this Agreement and statutory or
common law liens securing the payment or performance of any obligation of the
Corporation, the payment or performance of which is not delinquent, or that is
payable without interest or penalty subsequent to the date on which this
representation is given, or the validity of which is being contested in good
faith by the Corporation; (ii) the rights of customers of the Corporation with
respect to inventory under orders or contracts entered into by the Corporation
in the ordinary course of business; (iii) claims, easements, liens, and other
encumbrances of record pursuant to filings under real property recording
statutes; and (iv) as described in the Unaudited Statements or the notes
thereto.
2.9 Litigation. There are no material actions, suits, proceedings,
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orders, investigations, or claims pending or, to the best of Seller' and the
Corporation's knowledge, overtly threatened against the Corporation or any
property of either, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency, or instrumentality; the
Corporation is not subject to any arbitration proceedings under collective
bargaining agreements or otherwise or, to the best of Seller' and the
Corporation's knowledge, any governmental investigations or inquiries;
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and, to the best knowledge of Seller' and the directors and responsible officers
of the Corporation, there is no basis for any of the foregoing.
2.10 Tax Matters. (i) the Corporation has prepared in a substantially
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correct manner and has filed all federal, state, local, and foreign tax returns
and reports heretofore required to be filed by them and have paid all taxes
shown as due thereon; and (ii) no taxing authority has asserted any deficiency
in the payment of any tax or informed the Corporation that it intends to assert
any such deficiency or to make any audit or other investigation of the
Corporation for the purpose of determining whether such a deficiency should be
asserted against the Corporation.
2.11 Compliance with Laws. To the best of Seller's knowledge, the
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Corporation is, in the conduct of its business, in substantial compliance with
all laws, statutes, ordinances, regulations, orders, judgments, or decrees
applicable to them, the enforcement of which, if the Corporation was not in
compliance therewith, would have a materially adverse effect on the business of
the Corporation, taken as a whole. Neither the Seller nor the Corporation have
received any notice of any asserted present or past failure by the Corporation
to comply with such laws, statutes, ordinances, regulations, orders, judgments,
or decrees.
2.12 No Brokers. There are no claims for brokerage commissions, finders'
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fees, or similar compensation in connection with the purchase based on any
arrangement or agreement binding upon any of the parties hereto.
2.13 Insurance. Each insurance policy maintained by the Corporation with
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respect to its properties, assets, and businesses is in full force and effect.
The Corporation is not in material default with respect to its obligations under
any such policy maintained by it. Neither Seller nor the Corporation have been
notified of the cancellation of any of the insurance policies or of any material
increase in the premiums to be charged for such insurance policies.
2.14 Employees and Labor Relations Matters. Except as provided in this
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Agreement:
2.14.1 Neither Seller nor the Corporation is aware that any executive
or key employee of the Corporation or any group of employees of the
Corporation has any plans to terminate employment with the Corporation;
2.14.2 To the best of Seller' knowledge, the Corporation has
substantially complied in all material respects with all labor and
employment laws, including provisions thereof relating to wages, hours,
equal opportunity, collective bargaining, Americans With Disabilities Act,
and the payment of social security and other taxes;
2.14.3 There is no unfair labor practice charge, complaint, or other
action against the Corporation pending or, to Seller' and the Corporation's
best knowledge, threatened before the National Labor Relations Board and
the Corporation is not subject to any order to bargain by the National
Labor Relations Board;
2.14.4 No questions concerning representation have been raised or, to
Seller' and the Corporation's best knowledge, are threatened with respect
to employees of the Corporation;
2.14.5 No grievance that might have a material adverse effect on the
Corporation and no arbitration proceeding arising out of or under any
collective bargaining agreement is pending and, to the best knowledge of
Seller and the directors and responsible officers of the Corporation, no
basis exists for any such grievance or arbitration proceeding; and
2.14.6 To the best knowledge of Seller and the directors and
responsible officers of the Corporation, no employee of the Corporation is
subject to any non-competition, nondisclosure, confidentiality, employment,
consulting, or similar agreements with persons other than the Corporation
relating to the present business activities of the Corporation.
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2.15 Disclosure. Neither this Agreement nor any of the schedules,
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attachments, written statements, documents, certificates, or other items
prepared or supplied to Purchaser by or on behalf of the Corporation or Seller
with respect to this purchase contain any untrue statement of a material fact or
omit a material fact necessary to make each statement contained herein or
therein not misleading. No Seller or any responsible officer or director has
intentionally concealed any fact known by such person to have a material adverse
effect upon the Corporation's existing or expected financial condition,
operating results, assets, customer relations, employee relations, or business
prospects taken as a whole.
2.16 Power of Attorney. No material power of attorney or similar
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authorization given by the Corporation is presently in effect.
2.17 Accounts Receivable. All accounts receivable of the Corporation
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reflected in the July 31, 1999 Financial Statements represent bona fide sales
actually made in the ordinary course of business.
2.17.1 Corporation has no collective bargaining or union contracts
agreement in effect or being negotiated;
2.17.2 There is no labor strike, dispute, request for representation,
slowdown, or stoppage pending or, to Seller' and the Corporation's best
knowledge, threatened against the Corporation;
2.17.3 Corporation is not in material default under any Third Party
Agreements, nor, to Seller' and the Corporation's best knowledge, does
there exist any event that, with notice or the passage of time or both,
would constitute a material default or event of default by the Corporation
under any Third Party Agreements.
Section 3. Representations and Warranties of Purchaser. As a material
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inducement to Seller to enter into this Agreement and sell the Shares, Purchaser
hereby represents and warrants to Seller as follows:
3.1 Organization; Power. Purchaser is a corporation duly incorporated and
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validly existing under the laws of the state of Texas, and has all requisite
corporate power and authority to enter into this Agreement and perform its
obligations hereunder.
3.2 Authorization. The execution, delivery, and performance by Purchaser
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of this Agreement and all other agreements contemplated hereby to which
Purchaser is a party have been duly and validly authorized by all necessary
corporate action of Purchaser, and this Agreement and each such other agreement,
when executed and delivered by the parties thereto, will constitute the legal,
valid, and binding obligation of Purchaser enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, and similar statutes affecting creditors' rights
generally and judicial limits on equitable remedies.
3.3 No Conflict with Other Instruments or Agreements. The execution,
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delivery, and performance by Purchaser of this Agreement and all other
agreements contemplated hereby to which Purchaser is a party will not result in
a breach or violation of, or constitute a default under, its Articles of
Incorporation or Bylaws or any material agreement to which Purchaser is a party
or by which Purchaser is bound.
3.4 Governmental Authorities. (i) Purchaser is not required to submit any
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notice, report, or other filing with any governmental or regulatory authority in
connection with the execution and delivery by Purchaser of this Agreement and
the consummation of the purchase and (ii) no consent, approval, or authorization
of any governmental or regulatory authority is required to be obtained by
Purchaser or any affiliate in connection with Purchaser's execution, delivery,
and performance of this Agreement and the consummation of this purchase.
3.5 Litigation. There are no actions, suits, proceedings, or governmental
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investigations or inquiries pending or, to the knowledge of Purchaser,
threatened against Purchaser or its properties, assets, operations, or
businesses that might delay, prevent, or hinder the consummation of this
purchase.
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3.6 Investment Representations
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3.6.1 Purchaser is acquiring the Shares for its own account for
purposes of investment and without expectation, desire, or need for resale
and not with the view toward distribution, resale, subdivision, or
fractionalization of the Shares.
3.6.2 During the course of the negotiation of this Agreement,
Purchaser has reviewed all information provided to it by the Corporation
and has had the opportunity to ask questions of and receive answers from
representatives of the Corporation concerning the Corporation, the
securities offered and sold hereby, and this purchase, and to obtain
certain additional information requested by Purchaser.
3.6.3 Purchaser understands that the Shares to be purchased have not
been registered under Securities Act of 1933 ("1933 Act"), or under any
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state securities law.
3.6.4 Purchaser understands that the Shares cannot be resold in a
transaction to which the 1933 Act and state securities laws apply unless
(i) subsequently registered under the 1933 Act and applicable state
securities laws or (ii) exemptions from such registrations are available.
Purchaser is aware of the provisions of Rule 144 promulgated under the 1933
Act which permit limited resale of shares purchased in a private
transaction subject to the satisfaction of certain conditions.
3.6.5 Purchaser understands that no public market now exists for the
Shares and that it is uncertain that a public market will ever exist for
the Shares.
3.6.6 Purchaser understands that the certificates for the Shares will
bear the following legend:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THE CORPORATION WILL NOT TRANSFER THIS CERTIFICATE UNLESS (i) THERE IS AN
EFFECTIVE REGISTRATION COVERING THE SHARES REPRESENTED BY THIS CERTIFICATE
UNDER THE SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS,
(ii) IT FIRST RECEIVES A LETTER FROM AN ATTORNEY, ACCEPTABLE TO THE BOARD
OF DIRECTORS OR ITS AGENTS, STATING THAT IN THE OPINION OF THE ATTORNEY THE
PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933 AND UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR (iii) THE TRANSFER
IS MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OF 1933.
3.7 Brokerage. There are no claims for brokerage commissions, finders'
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fees, or similar compensation in connection with this purchase based on any
arrangement or agreement entered into by Purchaser and binding upon any of the
parties hereto.
Section 4. Conduct of the Corporation's Business Pending the Closing.
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From the date hereof until the Closing, and except as otherwise consented to or
approved by Purchaser, Seller and the Corporation covenant and agree with
Purchaser as follows:
4.1 Regular Course of Business. The Corporation will operate its business
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in accordance with the reasonable judgment of its management diligently and in
good faith, consistent with past management practices, and the Corporation will
continue to use its reasonable efforts to keep available the services of present
officers and employees (other than planned retirements) and to preserve its
present relationships with persons having business dealings with it.
4.2 Distributions. The Corporation will not declare, pay, or set aside
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for payment any dividend or other distribution in respect of its capital stock.
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4.3 Capital Changes. The Corporation will not issue any shares of its
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stock, or issue or sell any securities convertible into, or exchangeable for, or
options, warrants to purchase, or rights to subscribe to, any shares of its
stock or subdivide or in any way reclassify any shares of its capital stock, or
repurchase reacquire, cancel, or redeem any such shares.
4.4 Assets. The assets, property, and rights now owned by the Corporation
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will be used, preserved, and maintained, as far as practicable, in the ordinary
course of business, to the same extent and in the same condition as said assets,
property, and rights are on the date of this Agreement, and no unusual or novel
methods of manufacture, purchase, sale, management, or operation of said
properties or business or accumulation or valuation of inventory will be made or
instituted. Without the prior consent of Purchaser, the Corporation will not
encumber any of its assets or make any commitments relating to such assets,
property, or business, except in the ordinary course of its business.
4.5 Insurance. The Corporation will keep or cause to be kept in effect
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and undiminished the insurance now in effect on its various properties and
assets, and will purchase such additional insurance, at Purchaser's cost, as
Purchaser may request.
4.6 Employees. The Corporation will not grant to any employee any
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promotion, any increase in compensation, or any bonus or other award other than
promotions, increases, or awards that are regularly scheduled in the ordinary
course of business or contemplated on the date of this Agreement or that are, in
the reasonable judgement of management of the Corporation, in the Corporation's
best interest.
4.7 No Violations. The Corporation will comply in all material respects
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with all statutes, laws, ordinances, rules, and regulations applicable to it in
the ordinary course of business.
4.8 Public Announcements. No press release or other announcement to the
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employees, customers, or suppliers of the Corporation related to this Agreement
or this purchase will be issued without the joint approval of the parties,
unless required by law, in which case Purchaser and Seller will consult with
each other regarding the announcement.
Section 5. Covenants of the Corporation and Seller. Corporation and
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Seller covenant and agree with Purchaser as follows:
5.1 Satisfaction of Conditions. The Corporation will use reasonable
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efforts to obtain as promptly as practicable the satisfaction of the conditions
to Closing set forth in Section 7 and any necessary consents or waivers under or
amendments to agreements by which the Corporation is bound.
5.2 No Solicitation. Until the Closing or termination pursuant to Section
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10 of this Agreement, neither Seller nor the Corporation, nor any of their
respective directors, officers, employees, or agents shall, directly or
indirectly, encourage, solicit, initiate, or enter into any discussions or
negotiations concerning any disposition of any of the capital stock or all or
substantially all of the assets of the Corporation (other than pursuant to this
Agreement), or any proposal therefor, or furnish or cause to be furnished any
information concerning the Corporation to any party in connection with any
transaction involving the acquisition of the capital stock or assets of the
Corporation by any person other than Purchaser. Seller or the Corporation will
promptly inform Purchaser of any inquiry (including the terms thereof and the
person making such inquiry) received by any responsible officer or director of
the Corporation or Seller after the date hereof and believed by such person to
be a bona fide, serious inquiry relating to any such proposal.
5.3 Action After the Closing. Upon the reasonable request of any party
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hereto after the Closing, any other party will take all action and will execute
all documents and instruments necessary or desirable to consummate and give
effect to this purchase. These include, by way of illustration and not by way
of limitation, the following:
5.3.1 Various conditions relating to filing, payment, and collecting
of refunds relating to taxes;
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5.3.2 Resignations of each of the directors of the Corporation;
5.3.3 Provisions relating to delivery of Corporate books and records;
5.3.4 Provisions relating to treatment of confidential proprietary
information obtained in the acquisition process; and if Purchaser is
concerned that Seller is not getting corporate approval in due time (or
vice versa), the following covenant may be considered.
Seller will cause a meeting of its shareholder to be called and held as
soon as practicable, will recommend approval of the transaction to its
shareholder, and will use its best efforts to obtain shareholder approval.
Section 6. Covenant of Purchaser. Purchaser will use its best efforts to
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cause the conditions set forth in Section 8 to be satisfied.
Section 7. Conditions Precedent to the Obligations of Purchaser. Each and
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every obligation of Purchaser under this Agreement is subject to the
satisfaction, at or before the Closing, of each of the following conditions:
7.1 Representations and Warranties; Performance. Each of the
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representations and warranties made by the Corporation herein will be true and
correct in all material respects as of the Closing with the same effect as
though made at that time except for changes contemplated, permitted, or required
by this Agreement; Seller and the Corporation will have performed and complied
with all agreements, covenants, and conditions required by this Agreement to be
performed and complied with by them prior to the Closing; and Purchaser will
have received, at the Closing, a certificate of the Corporation and Seller,
signed by the President and the Chief Financial Officer of the Corporation and
Seller, stating that each of the representations and warranties made by the
Corporation herein is true and correct in all material respects as of the
Closing except for changes contemplated, permitted, or required by this
Agreement and that Seller and the Corporation have performed and complied with
all agreements, covenants, and conditions required by this Agreement to be
performed and complied with by them prior to the Closing.
7.2 Litigation. No material action, suit, or proceeding before any court,
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governmental or regulatory authority will have been commenced and be continuing,
and no investigation by any governmental or regulatory authority will have been
commenced and be continuing, and no action, investigation, suit, or proceeding
will be threatened at the time of Closing, against Seller, the Corporation, or
Purchaser or any of their affiliates, associates, officers, or directors,
seeking to restrain, prevent, or change this purchase, questioning the validity
or legality of this purchase, or seeking damages in connection with this
purchase.
7.3 Legal Opinion. Purchaser will have received an opinion of Seller's
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legal counsel, in form and content reasonably acceptable to Purchaser and its
legal counsel, to the effect that (i) the Corporation's organization, existence,
valid existence, and authorized and issued stock are as stated herein, that this
Agreement has been authorized, is enforceable, and is consistent with law and
the agreements of the Corporation and Seller as stated herein, and that, except
as specified in the opinion, such counsel does not know of any litigation,
claim, proceeding, or governmental investigation pending or threatened against
the Corporation, any Subsidiary, or their respective properties; (ii) the
execution, delivery, and performance of this Agreement and all other agreements
contemplated hereby to which the Corporation or Seller are a party have been
duly authorized by the Corporation or Seller, as the case may be; (iii) this
Agreement and each other agreement contemplated hereby, when executed and
delivered by the parties thereto, will constitute the legal, valid, and binding
obligation of the Corporation, Seller, or both as the case may be, enforceable
against Seller or the Corporation, as the case may be, in accordance with its
terms except as the enforceability thereof may be limited by the application of
bankruptcy, insolvency, moratorium, or similar laws affecting the rights of
creditors generally or judicial limits on the right of specific performance; and
(iv) the execution and delivery by the Corporation and Seller of this Agreement
and all other agreements contemplated hereby to which the Corporation or Seller
are a party, the offering and sale of the Shares hereunder and the fulfillment
of and compliance with the respective terms hereof and thereof by the
Corporation and Seller, do not and will not (a) conflict with or result in a
breach of the terms,
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conditions or provisions of, (b) constitute a default under, (c) result in the
creation of any lien, security interest, charge, or encumbrance upon the capital
stock or assets of Seller, or the Corporation pursuant to, (d) give any third
party the right to accelerate any obligation under, (e) result in a violation
of, or (f) require any authorization, consent, approval, exemption, or other
action by or notice to any court or administrative or governmental body pursuant
to the charter or bylaws of Seller or the Corporation, or any law, statute,
rule, or regulation to which Seller or the Corporation are subject, or any
agreement, instrument, order, judgment, or decree to which Seller or the
Corporation are subject.
7.4 Material Change. From the date of this Agreement to the Closing, the
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Corporation shall not have suffered any material adverse change (whether or not
such change is referred to or described in any supplement to this Agreement) in
its business prospects, financial condition, working capital, assets,
liabilities (absolute, accrued, contingent, or otherwise), or operations.
7.5 Corporate Action. Seller will have furnished to Purchaser:
----------------
7.5.1 The corporate charter and all amendments thereto and
restatements thereof of the Corporation certified by the official having
custody over corporate records in the jurisdiction of incorporation of the
corporation in question;
7.5.2 The current bylaws and minutes of all meetings and consents of
shareholders and directors of the Corporation;
7.5.3 Each certificate of qualification to do business as a foreign
corporation of the Corporation;
7.5.4 All stock transaction records of the Corporation; and
7.5.5 A certificate of the Secretary or Assistant Secretary of the
Corporation as to the accuracy, currency, and completeness of each of the
above documents, the incumbency and signatures of officers of the
Corporation, the absence of any amendment to the charter documents of the
Corporation, and the absence of any proceeding for dissolution or
liquidation of the Corporation.
Section 8. Conditions Precedent to the Obligations of the Corporation and
---------- --------------------------------------------------------------
Seller. Each and every obligation of Seller and the Corporation under this
------
Agreement is subject to the satisfaction, at or before the Closing, of each of
the following conditions:
8.1 Representations and Warranties; Performance. Each of the
-------------------------------------------
representations and warranties made by Purchaser herein will be true and correct
in all material respects as of the Closing with the same effect as though made
at that time except for changes contemplated, permitted, or required by this
Agreement; Purchaser will have performed and complied with all agreements,
covenants, and conditions required by this Agreement to be performed and
complied with by it prior to the Closing; and Seller will have received, at the
Closing, a certificate of Purchaser, signed by the President and the Chief
Financial Officer of Purchaser, stating that each of the representations and
warranties made by Purchaser herein is true and correct in all material respects
as of the Closing except for changes contemplated, permitted, or required by
this Agreement and that Purchaser has performed and complied with all
agreements, covenants, and conditions required by this Agreement to be performed
and complied with by it prior to the Closing.
8.2 No Proceeding or Litigation. No action, suit, or proceeding before
---------------------------
any court (other than suits seeking monetary damages only and in the aggregate
sum of less than $10,000) and any governmental or regulatory authority will have
been commenced and be continuing, and no investigation by any governmental or
regulatory authority will have been commenced and be continuing, and no action,
investigation, suit, or proceeding will be threatened at the time of Closing,
against Seller, the Corporation, or Purchaser or any of their affiliates,
associates, officers, or directors, seeking to restrain, prevent, or change this
purchase, questioning the validity or legality of this purchase, or seeking
damages in connection with this purchase.
9
8.3 Corporate Action. Purchaser will have furnished to Seller a copy,
----------------
certified by the Secretary of an Assistant Secretary of Purchaser, of the
resolutions of Purchaser authorizing the execution, delivery, and performance of
this Agreement.
Section 9. Closing.
---------- -------
9.1 Time, Place, and Manner of Closing. Unless this Agreement has been
----------------------------------
terminated and this purchase has been abandoned pursuant to the provisions of
Section 2 or Section 10, the closing ("Closing") will be held at the offices of
-------
the Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other
place as the parties may agree, ten (10) days after notice is given to the
Seller that the Purchaser desires to consummate this transaction, or as soon as
practicable after the satisfaction of the various conditions precedent to the
Closing set forth herein. At the Closing the parties to this Agreement will
exchange certificates, Notes, Guaranties, and other instruments and documents in
order to determine whether the terms and conditions of this Agreement have been
satisfied. Upon the determination of each party that its conditions to
consummate this purchase have been satisfied or waived, Seller shall deliver to
Purchaser the certificate(s) evidencing the Shares, duly endorsed for transfer,
and Purchaser shall deliver to Seller the Notes and Guaranties referred to in
Section 1.3, in a manner to be agreed upon by the parties. After the Closing,
Seller, at Purchaser's cost, will execute, deliver, and acknowledge all such
further instruments of transfer and conveyance and will perform all such other
acts as Purchaser may reasonably request to effectively transfer the Shares.
9.2 Consummation of Closing. All acts, deliveries, and confirmations
-----------------------
comprising the Closing regardless of chronological sequence shall be deemed to
occur contemporaneously and simultaneously upon the occurrence of the last act,
delivery, or confirmation of the Closing and none of such acts, deliveries, or
confirmations shall be effective unless and until the last of the same shall
have occurred. The time of the Closing has been scheduled to correspond with
the close of business at the principal office of the Corporation and, regardless
of when the last act, delivery, or confirmation of the Closing shall take place,
the transfer of the Shares shall be deemed to occur as of the close of business
at the principal office of the Corporation on the date of the Closing.
Section 10. Termination.
----------- -----------
10.1 Termination for Cause. If, pursuant to the provisions of Section 7 or
---------------------
8 of this Agreement, Seller or Purchaser is not obligated at the Closing to
consummate this Agreement, then the party who is not so obligated may terminate
this Agreement.
10.2 Termination Without Cause. Anything herein or elsewhere to the
-------------------------
contrary notwithstanding, this Agreement may be terminated and abandoned at any
time without further obligation or liability on the part of any party in favor
of any other by mutual consent of Purchaser and Seller.
10.3 Termination Procedure. Any party having the right to terminate this
---------------------
Agreement due to a failure of a condition precedent contained in Sections 7 or 8
hereto may terminate this Agreement by delivering to the other party written
notice of termination, and thereupon, this Agreement will be terminated without
obligation or liability of any party.
Section 11. Miscellaneous Provisions.
----------- ------------------------
11.1 Amendment and Modification. Subject to applicable law, this Agreement
--------------------------
may be amended, modified, or supplemented only by a written agreement signed by
Purchaser and Seller.
11.2 Waiver of Compliance; Consents
------------------------------
11.2.1 Any failure of any party to comply with any obligation,
covenant, agreement, or condition herein may be waived by the party
entitled to the performance of such obligation, covenant, or agreement or
who has the benefit of such condition, but such waiver or failure to insist
upon strict compliance with such
10
obligation, covenant, agreement, or condition will not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
11.2.2 Whenever this Agreement requires or permits consent by or on
behalf of any party hereto, such consent will be given in a manner
consistent with the requirements for a waiver of compliance as set forth
above.
11.3 Notices. All notices, requests, demands, and other communications
-------
required or permitted hereunder will be in writing and will be deemed to have
been duly given when delivered by hand or two days after being mailed by
certified or registered mail, return receipt requested, with postage prepaid:
If to Purchaser, or to the Corporation
after the Closing, to:
▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other person or address as Purchaser furnishes to Seller pursuant to
the above.
If to the Corporation before the
Closing, to:
BioLynx Outsource Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Seller, to:
United Capital Investment Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as Seller furnishes to Purchaser pursuant to the above.
11.4 Titles and Captions. All section titles or captions contained in this
-------------------
Agreement are for convenience only and shall not be deemed part of the context
nor effect the interpretation of this Agreement.
11.5 Entire Agreement. This Agreement contains the entire understanding
----------------
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
11.6 Agreement Binding. This Agreement shall be binding upon the heirs,
-----------------
executors, administrators, successors and assigns of the parties hereto.
11.7 Attorney Fees. In the event an arbitration, suit or action is brought
-------------
by any party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
11.8 Computation of Time. In computing any period of time pursuant to this
-------------------
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday, or a
legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
11.9 Pronouns and Plurals. All pronouns and any variations thereof shall
--------------------
be deemed to refer to the masculine, feminine, neuter, singular, or plural as
the identity of the person or persons may require.
11
11.10 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Texas.
11.11 Arbitration. If at any time during the term of this Agreement any
-----------
dispute, difference, or disagreement shall arise upon or in respect of the
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed upon
by the parties, or if no single arbiter can be agreed upon, an arbiter or
arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference, or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbiter may be entered in any court having jurisdiction thereof.
11.12 Presumption. This Agreement or any section thereof shall not be
-----------
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
11.13 Further Action. The parties hereto shall execute and deliver all
--------------
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
11.14 Parties in Interest. Nothing herein shall be construed to be to the
-------------------
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
11.15 Savings Clause. If any provision of this Agreement, or the
--------------
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
Dated: October 1, 1999.
PURCHASER:
▇▇▇▇▇▇▇.▇▇▇, Inc.
a Texas corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, President
CORPORATION:
BioLynx Outsource Services, Inc.,
a Texas corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, President
SELLER:
UNITED CAPITAL INVESTMENT GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, President
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