UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES ACT OF 1933
Date of Report (date of earliest event reported): October 30, 1996
PHYSICIANS LASER SERVICES, INC. (f/k/a EXCEL RESOURCES, INC.)
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-3188137
(I.R.S. Employer Identification Number)
2-89401
(Commission file Number)
3200, N. Federal Highway, P.O. Box 907, Boca Raton, FL 33429-0907
(Address of Principal Executive Office)
407-338-9256
(Telephone number, including area code, of Agent for Service)
<PAGE>
Item 2. ACQUISITION OF ASSETS.
(a) On October 30, 1996 Physicians Laser Services, Inc. (the
"Registrant") acquired from Howard Holderness,
Jr., M.D. and Richard Snell (collectively the "Mobilase Selling
Shareholders")100% of all of the issued and
outstanding stock (1,000 shares) of Mobilase, Inc. ("Mobilase"), a
North Carolina corporation based in Virginia.
Mobilase's assets include, among other things, (i) a 1990
transport van; (ii) a 1996 transport van; and (iii) four (4)
cosmetic surgical lasers, which it leases to physician's offices,
hospitals and medical clinics. Mobilase will continue
in its business of leasing medical lasers as a wholly owned
subsidiary of the Registrant. Richard Snell shall serve
as vice president and chief operating officer of Mobilase pursuant
to an employment agreement with Mobilase
entered into on October 18, 1996. Howard Holderness, Jr. will
continue to serve as president of Mobilase. At this
time, Mr. Holderness has not entered into an employment agreement
with either Mobilase or the Registrant to serve
as Mobilase's president, and he receives no compensation as such.
No material relationship exists between the
Mobilase Selling Shareholders and the Registrant or any of its
affiliates, any officer or director of the Registrant, or
any associate of any such director or officer. The Registrant
transferred to the Mobilase Selling Shareholders 238,728
shares ("Base Shares") of the Registrant's restricted stock,
subject to certain conditions set forth below, in exchange
for such Mobilase stock.
Pursuant to the stock purchase agreement, the Base Shares were
derived from a formula relating to
Mobilase's projected profit and loss statement for the period
11/1/96 to 10/31/97. The Bases Shares were derived by
multiplying Mobilase's projected income before taxes by five (5)
and then dividing the product by $2.00. Within
90 days of 10/31/97, the Base Shares shall be adjusted ("Adjusted
Base Shares") to the extent that if Mobilase's
income before taxes increases or decreases, then the Base Shares
shall be adjusted accordingly pursuant to the same
abovementioned formula. Such adjustment shall be limited to an
increase or decrease of 50%. Within 90 days of
10/31/98, the Adjusted Base Shares shall be adjusted to the extent
that if Mobilase's income before taxes increases
or decreases, then the Adjusted Base Shares shall be adjusted
accordingly pursuant to the same abovementioned
formula. Such adjustment shall be limited to an increase or
decrease of 50%. An equitable adjustment is also
provided for in the event the Registrant's shares trade at less
than $3.00 per share averaged over the previous 20
trading days. The adjustment shall be equal to the proportionate
amount that the Registrant's shares are trading below
$3.00 per share. There shall be no adjustment if the Registrant's
shares are trading above $3.00 per share. As of
the date hereof, the Registrant's shares are trading below $3.00
and such adjustment to the base shares has been
made. Also, for the Mobilase Selling Shareholders to be eligible
for any additional shares of the Registrant provided
for in the first and second adjusted base periods, Richard Snell
must be an employee of the Registrant in good
standing in accordance with his employment contract at the time the
above adjustments are made.
(b) On November 4, 1996 the Registrant acquired from Mark Pinter
and Jonah Yavne (collectively the "PLSNY
Selling Shareholders") 100% of all of the issued and outstanding
stock (100 shares) of P.L.S.N.Y, Inc. ("PLSNY"),
a New York corporation based in New York. PLSNY presently leases
its business assets which include, among other
things, (i) a 1995 leased transport truck; (ii) a Coherent
Ultrapulse CO2 5000C Aesthetic 117 surgical laser; (iii) a
Truespot Collimated Handpiece; (iv) an Aesthetic Preceptorship
Trng; and (v) a Computer Pattern Generator. The
Registrant has agreed to jointly assume with PLSNY the lease
obligations of the abovementioned equipment .
PLSNY will continue in its business of leasing medical lasers to
physician's offices, hospitals and medical clinics
as a wholly owned subsidiary of the Registrant, and Mark Pinter
shall serve as president and chief operating officer
of PLSNY pursuant to an employment agreement with PLSNY entered
into on September 24, 1996. No material
relationship exists between the PLSNY Selling Shareholders and the
Registrant or any of its affiliates, any officer
or director of the Registrant, or any associate of any such
director or officer. The Registrant transferred to the
PLSNY Selling Shareholder's affiliates 325,066 shares ("Base
Shares") of the Registrant's restricted stock, subject
to certain conditions set forth below, in exchange for such PLSNY
stock.
Pursuant to the stock purchase agreement, the Base Shares were
derived from a formula relating to PLSNY's
projected profit and loss statement for the period 11/1/96 to
10/31/97. The Bases Shares were derived by multiplying
PLSNY's projected income before taxes by five (5) and then
dividing the product by $2.00. Within 90 days of
10/31/97, the Base Shares shall be adjusted ("Adjusted Base
Shares") to the extent that if PLSNY's income before
taxes increases or decreases, then the Base Shares shall be
adjusted accordingly pursuant to the following formula.
Such excess or deficient income shall be multiplied by 2.5, then
the product shall be divided by $2.00 . Within 90
days of 10/31/98, the Adjusted Base Shares shall be adjusted to the
extent that if PLSNY's income before taxes
increases or decreases, then the Adjusted Base Shares shall be
adjusted accordingly pursuant to the same
abovementioned formula. An equitable adjustment is also provided
for in the event the Registrant's shares trade at
less than $3.00 per share averaged over the previous 20 trading
days. The adjustment shall be equal to the
proportionate amount that the Registrant's shares are trading below
$3.00 per share. There shall be no adjustment
if the Registrant's shares are trading above $3.00 per share. As
of the date hereof, the Registrant's shares are trading
below $3.00 and such adjustment to the base shares has been made.
Also, for the PLSNY Selling Shareholders, or
their affiliates, to be eligible for any additional shares of the
Registrant provided for in the first and second adjusted
base periods, Mark Pinter must be an employee of the Registrant in
good standing in accordance with his
employment contract at the time the above adjustments are made.
Item 5. OTHER EVENTS.
As of March 29, 1996, the Registrant changed the address of
its principal office, which is now located at
3200 North Federal Highway #226, P.O. Box 907, Boca Raton, FL
33429-0907.
Also, in October, 1996, the Registrant appointed William R.
Colucci to serve as its Chief Operating Officer.
Mr. Colucci is a former partner of Decision Dynamics of Fort
Lauderdale. Mr. Colucci graduated from St. Joseph's
University, Philadelphia, P.A. and has completed courses sponsored
by the Stanford University Graduate School of
Business for executives of emerging growth companies.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
It is impracticable to provide the financial statements and
pro form financial information required by Items
7(a) and 7(b) of Form 8-K for Mobilase or PLSNY at this time.
Accordingly, no such financial statements are being filed with
this current report on Form 8-K. Rather, such
financial statements and information will be filed by amendment
hereto as soon as practicable, but not later than sixty
(60) days after the date on which this Report on Form 8-K must be
filed.
EXHIBITS.
1. Stock Purchase Agreement between Registrant and Mobilase.
2. Stock Purchase Agreement between Registrant and PLSNY.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934,
the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
Physicians Laser Services, Inc.
By:/s/ Raymond F. Stack
Raymond F. Stack, President
Dated November 13, 1996
_________________________________
STOCK PURCHASE AGREEMENT
________________________________________
This STOCK PURCHASE AGREEMENT ( Agreement ) is made effective and
entered into as of the 24th day of September, 1996 by and among
PHYSICIANS LASER SERVICES, INC. a corporation organized and
existing under the laws of the State of Delaware ( PLS ),
P.L.S.N. Y., INC., a Corporation organized or promptly to be
organized and existing under the laws of the State of New York
( Company ), and the registered owners of all the common stock of
Company issued and outstanding ( Shareholders ).
WITNESSETH:
That for and in consideration of the transfer by Shareholders of
all the Company's Common Shares registered in their names to PLS,
and the mutual covenants and agreements herein contained and
subject to the terms and conditions set forth below, the
parties agree as follows:
1. Name, Address and Number of Shares Owned. The following is
the name, address and number of common shares registered in their
names of the persons who own all the issued and outstanding common
shares of Company:
Name of Shareholder Address Number of Shares Owned
1. Mark Pinter 1119 Sage Street
West Lawrence, N.Y. 11691 50
2. Jonah Yavne 520 Meehan Avenue 50
West Lawrence, N.Y. 11691
2. Exchange of Stock. A. On the closing date ( Closing ) fixed
below, the Shareholders shall deliver to PLS certificates,
evidencing 100% of the common shares of Company outstanding, as
shown on the registration and transfer records of Company, duly
endorsed in blank or with such separate transfer powers attached
thereto, dated as of the Closing and in a form (satisfactory to PLS
and/or its attorney) that shall be effective to vest in PLS good
and marketable title in and to 100% of such Company common shares.
In addition, the Shareholders shall execute, acknowledge and
deliver to PLS such further assignments and other instruments as
may, in the judgment of PLS's attorney, be necessary
to conclude and confirm the sale of the shares hereby contemplated.
B. Shareholders have provided to and accepted by PLS a projected
Balance Sheet and Profit and Loss Statement prepared as a
compilation ( Compilation ) by the CPA of the Company for the 12
month period beginning November 1, 1996 and it is set forth in
Schedule A. This initial 12 month period is referred to herein as
the Base Period.
C. Shareholders, upon delivery of such Company shares to PLS,
shall receive certificates for the number of section 144 shares
of common stock of PLS ( PLS Shares ) computed as follows: The
computation shall be made bymultiplying by five (5) the Company's
Income Before Taxes as shown on the Compilation and the product of
this multiplication shall then be divided by $2.00. The result to
the nearest whole number shall be the number of PLS Shares to be
issued to Shareholders for the Base Period.
D. Within 90 days after 10/31/97 Company s corporate books for
the Base Period shall be audited by PLS auditors and there shall be
an adjustment in the PLS Shares paid and/or to be paid by PLS to
Shareholders as provided in this paragraph D. The results of
this audit shall be referred to as the First Adjusted Base Period.
To the extent that the audited Income Before Taxes for the First
Adjusted Base Period of Company exceeds the Income Before Taxes as
shown in the Base Period Compilation, PLS shall issue additional
PLS Shares to the Shareholders in an amount computed as follows:
Such excess Income Before Taxes shall be multiplied by two and one
half (2 and 1/2) and the product of such multiplication shall then be
divided by $2.00. The result shall be the number of additional
PLS Shares to be promptly received by Shareholders. To the extent
that the Income Before Taxes of the Company for the First Adjusted
Base Period is less than Income Before Taxes shown in the Base
Period s Compilation, Shareholders shall return to PLS, PLS Shares
initially issued to Shareholders in an amount computed as follows:
the First Adjusted Base Period s deficit of Income Before Taxes
contrasted with the Income Before Taxes in the Base Period's
Compilation shall be multiplied by two and one half (2 and 1/2) and the
product of this multiplication shall then be divided by $2.00. The
result shall be the number of PLS Shares promptly returned to PLS.
The number of shares herein provided shall be adjusted to the
nearest whole share.
E. Within 90 days after 10/31/98 and upon completion of an audit
by PLS s auditor of the 12 month period 11/1/97-10/31/98 ( Second
Adjusted Base Period ), Shareholders shall be eligible for
additional PLS Shares in an amount computed as follows: To the
extent that the Income Before Taxes as shown on the Second Adjusted
Base Period s audit of Company exceeds the Income Before Taxes as
shown on the First Adjusted Base Period s audit Shareholders shall
be entitled to additional PLS Shares computed as follows: Such
excess shall be multiplied by two and one half (2 and 1/2) and the
product shall then be divided by $2.00 and Shareholders shall
promptly receive to nearest whole PLS Shares equal to such amount.
F. The $2.00 figure herein is a number arrived at through
negotiation between the parties. If at the time of any such
computation PLS shares shall be publicly traded for less than $3.00
averaged over the previous 20 trading days there shall be an
equitable adjustment in the $2.00 figure. The adjustment shall
be equal to the proportionate amount that PLS shares are trading
below $3.00 a share. For example, if at the time of computation
PLS share are trading averaged over the previous 20 trading days at
$2.50, the $2.00 figure shall be reduced 16.66% to $1.67. There
shall be no adjustment if PLS share are trading above $3.00. For
Shareholders to be eligible for the additional PLS Shares provided
for in the First and Second Adjusted Base Periods, Mark Pinter must
be an employee of the Company in good standing in accordance with
his Employment Contract at the time the above adjustments are made.
PLS Shares delivered at anytime to Shareholders shall be pro-rata
to their respective original ownership.
G. Recapitalization. If at the time of computation under the
First and/or Second Adjusted Base Periods there has been a prior
change in the capitalization of PLS, any such computation shall
equitably reflect such changes.
H. In all instances where this Agreement provides for receipt of
PLS Shares by Shareholders, such PLS Shares to be received by
Shareholders shall be registered in the name of Cheryl Yavne for
shares to be received by Jonah Yavne and Abigail Pinter for
shares to be received by Mark Pinter.
3. Closing. The Closing and the exchange of stock contemplated
in Section 2 above shall take place within 10 days after the
receipt by PLS of Company s Compilation at 10:00 a.m. at the office
of PLS s counsel, Frank R. Brady, Esq. whose address is Frank
Brady, P.A., 370 Camino Gardens Blvd., Suite 341, Floor, Boca
Raton, Florida 33432, subject to change upon the mutual consent of
the parties to this Agreement set forth in writing and signed by
all parties.
4. Representations, Warranties and Protective Convenants of
Shareholders. As of the time of execution hereof, Shareholders
represent and covenant as follows and the same shall be true at
closing:
A. This Agreement has been duly authorized by the Board of
Directors of Company and Shareholders, in the manner required under
applicable law, and will constitute the valid and binding
obligation of Shareholders and Company, enforceable in accordance
with its terms.
B. Company is authorized to issue 200 shares of common stock, of
which 100 are issued and outstanding as set forth in section 1 and
the subject of the transaction herein. Company has not authorized
nor issued any preferred stock or any other class or category of
stock other than the common stock referred to herein.
C. Company is and will be at the date of Closing, duly registered
and validly existing as a corporation under the Constitution and
laws of the State of New York with the power and authority to
transact business in New York and is duly registered to transact
business in any foreign state where it conducts business. Company
has no subsidiary corporation(s).
D. Company has the power and authority to carry on its business
as currently conducted and holds, or is duly licensed under, all
patents, trademarks, trade names, copyrights, licenses, processes
and formulas necessary for the operation of its business as
currently conducted, free and clear of all liens, encumbrances and
claims of any kind or description.
E. The compiled balance sheet and income statement set forth in
Schedule A fully and accurately reflect a reasonable projection in
the opinion of Shareholders. PLS acknowledges that the Compilation
prepared by Company is a projection based on certain assumptions.
PLS further acknowledges that Shareholders and Company have not
made any representations, warranties nor guarantees as to the
outcome or results shown in the Compilation. PLS has had an
opportunity to review the Compilation and the reasonableness of the
assumptions contained therein.
F. Between the date of this Agreement and the time of Closing, no
transactions, other than in the ordinary and usual course of
business, will be engaged in by Company, unless Company shall
notify in writing PLS and PLS shall approve of the same in writing;
and there will be no material adverse change from the present
financial or operating condition of Company.
G. Company will not execute any bonds, notes or other obligations
for borrowed money, without giving prior written notice thereof
made to PLS and without the written approval thereof by PLS.
H. As of the date of this agreement, Company is not, and as of
the Closing date will not be, in default under any contract or
agreement, or under the order or decree of any court.
I. Except as disclosed in Schedule B, to the best knowledge of
Shareholders and the Company there is no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any
court, government agency, or public board or body, pending or
threatened against Company, affecting the validity or
enforceability of this Agreement in any respect or contesting the
powers of Company or the ability of Shareholders to execute and
deliver this Agreement, and neither the execution and delivery of
this Agreement nor the consummation of the transaction contemplated
in this Agreement will conflict with, result in the breach of, or
accelerate the performance required by any contract or agreement to
which Company or Shareholders are now a party.
J. There are no dividends declared and unpaid on any of the
shares of Company; there are no other authorized or outstanding
equity securities of any class, kind or character of Company other
than stated herein, nor are there any outstanding subscriptions,
options, warrants or other agreements or commitments obligating
Company to issue any additional shares of any class or any debt
obligations convertible into any shares of Company.
K. Company is not a party to any contract or agreement and is not
subject to any other restriction, materially and adversely
affecting its business, property, or assets.
L. In Schedule C attached hereto, Company has provided PLS with
a complete list of the assets of Company. Except as otherwise
stated in footnotes to such list of assets, Company has good and
marketable title to all assets listed. All tangible property of
Company is in good condition and repair and its use conforms to all
applicable zoning, building, safety, laws and other regulations.
M. In Schedule D attached hereto , Company has provided PLS with
an accurate list of all insurance policies in effect with respect
to the business and property of Company and health and medical
insurance as of the date of this Agreement. Insurance, or
comparable coverage, shall be kept in effect by Company until the
Closing and continued thereafter until the conditions subsequent
specified in section 5 hereof have been completed.
N. Company and Shareholders have full legal power and authority
to execute and deliver this Agreement and other documents necessary
for Closing and to carry out and consummate the transactions
contemplated by this Agreement; Company has fully complied with or
will comply with as of the date of Closing all applicable
provisions of law relating to such transactions; Company has duly
authorized, approved and adopted this Agreement and the taking of
all such action as may be required on the part of Company to carry
out and consummate the transactions and operations contemplated by
the aforesaid instruments; Company has in full force and effect all
consents, approvals, permits or other actions by or filings with
any governmental authority required for the execution and delivery
of this Agreement and for the performance by Company of the
transactions contemplated thereby; from the time of acceptance
hereof through the date of the Closing, except as otherwise
contemplated by this Agreement, Company will not incur any material
liabilities, direct or contingent, or enter into any transaction
that could adversely affect the transactions contemplated by this
Agreement; from the date of its acceptance hereof through the
date of Closing, there shall not have been any material adverse
change in the condition, financial or physical of Company other
than changes in the ordinary course of Company s business that
could adversely affect the transactions contemplated hereby; and
the execution and delivery by Company of this Agreement, the
compliance by Company with the provisions hereof, the carrying out
and consummation by Company of its obligations under such documents
and instruments will not conflict with or constitute a breach of or
a default under any law, administrative regulation, court decree,
instrument or agreement to which Company is subject or by which
Company is or any of its properties are bound.
O. In Schedule E attached hereto, Company has provided PLS with
an accurate list of accounts and notes receivable, accounts
payable, leases, and notes payable by Company as of the date of
this Agreement. All such accounts and notes receivable are
valid and collectable and represent an undisputed debt for a fixed
sum. All such accounts receivable have been billed in good faith,
are generally due and payable within sixty (60) days after billing
and are not subject to any defense, offset or counterclaim. If any
accounts or notes receivable listed by Company are not fully paid
to Company when due, and any accounts or notes payable, or leases
are inaccurately stated or overdue there shall be a prompt
equitable adjustment in the exchange of shares described in section
2 hereof. Schedule E also states an accurate aging report of
accounts receivable and payable.
P. The financial statements, lists of leases, accounts
receivable, and all other information furnished and to be furnished
by Company to PLS accurately and fairly reflect, in reasonable
detail, Company s financial condition and operations in all
material respects.
Q. Any certificate signed by any officer or director of Company
and delivered to PLS shall be deemed to be a representation and
warranty by Company as to the statements made therein.
R. There are no voting agreements, Shareholder agreements or
other agreements or understandings with respect to any of the
shares of Company, except for this Agreement; the Board of
Directors consist of Mark Pinter and Jonah Yavne.
S. From and after the date of execution hereof, both Company and
Shareholders shall use their best efforts to preserve the business
and good will of Company; except in the ordinary course of
business, on and after the date of execution of this Agreement,
Company not sell or otherwise dispose of or remove any of its
properties or assets exceeding $1,000 in value or any interest
therein, nor has Company agreed to do so; no casualty, loss or
damage in excess of $5,000 will have occurred with respect to any
of Company s assets, whether or not the same is covered by
insurance; no Shareholder or executive officer or key employee of
Company will have left his or her employment with Company; Company
has not made or committed to make any capital expenditure in excess
of $5,000 in the aggregate, except as set forth in paragraph 4 F
and Schedule F; except as set forth in Schedule G there are no
loans or other obligations outstanding and unpaid by Company to any
Shareholder, nor has Company entered into any contract with any
employee, officer or Shareholder of Company, or are there any
employee benefit, pension or retirement plans, executive or
employee deferred compensation or similar fringe benefit plans
maintained by Company other than a major medical and/or health
insurance plan.
T. Company has complied in all material respects with all laws
and regulations relating to the employment of labor, including any
provisions thereof relating to wages, hours, collective bargaining
and the payment of Federal employment taxes, or has cured any
failure to so comply and is not liable for any arrears of wages or
any taxes or penalties for failure to comply with any of the
foregoing; and none of Company s employees are currently
represented by a labor union nor are there any organizational
efforts presently pending with respect to employees of Company.
U. Except as set forth in Schedule H all tax returns for any
federal, state, local or foreign tax required to be filed by
Company have been timely and properly filed and all taxes,
assessments, fees and other government charges required to be paid
with respect thereto have been paid in full or extended; Company is
not a party to or the subject of any audit, action or proceeding
for assessment or collection of taxes of any kind or description;
Company is not in violation of, and the business of Company has not
been conducted in violation of, any federal, state or local laws,
ordinances or regulations, including equal employment opportunity,
employment discrimination, or environmental or health and safety
standards, the violation of which could adversely affect the
operation of the business of Company as it is presently conducted.
V. Shareholders are the registered owners of the number of fully
paid and nonassessable common shares of Company set forth opposite
their names in section 1 of this Agreement.
5. Interim Operations; Additional Covenants of Company and
Shareholders. Shareholders and Company represent, warrant and
covenant that Company will not:
A. Enter into any transactions prior to the Closing, other than
in the ordinary course of business, and Shareholders will take any
action that is necessary so that Company will not enter into any
such transactions, without the prior written consent of PLS.
B. Create or incur any indebtedness other than unsecured
current liabilities incurred in the ordinary course of business
without the written consent of PLS.
C. Grant or permit to arise any mortgage, security interest,
lien, or encumbrance of any kind.
D. Sell or otherwise dispose of any of its assets other than
merchandise inventories sold in the ordinary course of business.
E. Increase the compensation paid to any of its officers or
directors above the level paid on the date of this Agreement or
agree to pay to any of its officers, directors or employees any
bonus, severance pay, or pension, whether under an existing
compensation or deferred compensation plan, or otherwise unless
disclosed herein.
6. Covenants of PLS. PLS hereby represents, covenants, and
warrants as follows:
A. This Agreement has been duly authorized by the board of
directors of PLS, in the manner required under applicable law, and
will constitute the valid and binding obligation of PLS,
enforceable in accordance with its terms.
B. As of the time of acceptance hereof and at the time of
Closing, PLS is and will be duly incorporated and validly existing
as a corporation under the Constitution and laws of the State of
Delaware, except that PLS hereby acknowledges that it has adopted
resolutions of its board of directors to change the state of it
incorporation to the State of Florida.
C. As of the date of this agreement, PLS is registered with the
Securities and Exchange Commission (the SEC ) under the Securities
Act of 1933 and is a reporting company under the Securities Act of
1934 and has made all quarterly and annual filings with the SEC as
are required under applicable rules and regulations.
D. As of the date of this Agreement, PLS is authorized to issue
10,000,000 shares of common stock, of which 5,323,817 shares are
issued and outstanding.
E. PLS has the power and authority to carry on its business as
currently conducted and holds, or is duly licensed under, all
patents, trademarks, trade names, copyrights, licenses, processes
and formulas necessary for the operation of its business as
currently conducted, free and clear of all liens, encumbrances and
claims of any kind or description.
F. As of the date of this agreement, PLS is not, and as of the
closing date will not be, in default under any contract or
agreement, or under the order or decree of any court.
G. To the best knowledge of the PLS, as of the date hereof,
there is no action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, government agency, or
public board or body, pending or threatened against PLS, affecting
or seeking to prohibit, restrain or enjoin the execution of this
Agreement or the exchange of the stock of PLS herein contemplated,
or contesting or affecting the validity or contesting the powers of
PLS, and neither the execution and delivery of this agreement nor
the consummation of the transaction contemplated in this Agreement
will conflict with, result in the breach of, or accelerate the
performance required by any contract or agreement to which PLS is
now a party.
H. PLS is not a party to any contract or agreement and is not
subject to any other restriction, materially and adversely
affecting its business, property, or assets.
I. There are no dividends declared and unpaid on any of the
common shares of PLS or its subsidiary.
J. Any certificate signed by any officer of PLS and delivered
to Company shall be deemed to be a representation and warranty by
PLS as to the statements made therein.
K. PLS has good and marketable title to all its assets and
properties. All tangible property of PLS is in good condition and
repair and conforms to all applicable zoning, building, safety, and
other regulations.
L. The board of directors of PLS consists solely of the Gerard
Grau, M.D. and Raymond Stack.
M. PLS has complied in all material respects with all laws and
regulations relating to the employment of labor, including any
provisions thereof relating to wages, hours, collective bargaining
and the payment of Federal employment taxes, or has cured any
failure to so comply and is not liable for any arrears of wages or
any taxes or penalties for failure to comply with any of the
foregoing; and none of PLS s employees are currently represented by
a labor union nor are there any organizational efforts presently
pending with respect to employees of PLS.
N. All tax returns for any federal, state, local or foreign tax
required to be filed by PLS have been timely and properly filed or
extended and all taxes, assessments, fees and other government
charges required to be paid with respect thereto have been paid
in full; PLS is not a party to or the subject of any audit, action
or proceeding for assessment or collection of taxes of any kind or
description; PLS is not in violation of, and the business of PLS
has not been conducted in violation of, any federal, state or local
laws, ordinances or regulations, including equal employment
opportunity, employment discrimination, or environmental or health
and safety standards, the violation of which could adversely affect
the operation of the business of PLS as it is presently conducted.
7. Capital for Company. PLS agrees to use its best efforts to
provide Company funding to obtain a Q Switch Nd:YAG laser and a
Pulse Dye laser within 60 days of closing.
8. Conditions Subsequent. Within twenty (20) days after the
date of execution of this Agreement, each party shall complete its
due diligence investigation of the other. In the event that either
party notifies the other in writing that its due diligence has
disclosed, in its reasonable judgment, there exists a material
condition that is contrary to the other party s covenants set forth
in this Agreement, either party may at its option terminate this
agreement and neither party shall have any claim against the other.
9. Investment Intent. Shareholders represent that the shares
of common stock of PLS being acquired by it under this Agreement
are being acquired for investment purposes only, and not with a
view to reselling the same or dividing participation with others.
Shareholders represent that they have no present intent to resell
or otherwise dispose of all or any part of such shares. Such
shares are restricted under Rule 144 of the Securities Act of 1933
and will contain a legend printed thereon that such certificates
are so restricted.
10. Access to Records. Both parties and their respective
counsel, accountants, and other representatives, shall have the
right at all times during ordinary business hours to inspect all of
the properties, books, and records of the respective parties and
they shall cooperate with and furnish each other and their
respective representatives, all such information and documents with
respect to the affairs of the other or their respective
representatives may reasonably request
11. Continuation of Company as a Subsidiary of PLS. On and after
the Closing, Company shall continue its existence as a wholly owned
subsidiary of PLS and will be identified as such. The persons
serving as directors of Company shall at their option, continue in
office for as long as the Shareholders continue to own at least
twenty-five percent (25%) of the number of shares of PLS received
pursuant to this Agreement and adjusted in the manner prescribed in
section 2 hereof; at least one additional seat on the Board of
Directors of Company shall be created and filled by the person(s)
nominated by PLS. Mark Pinter shall continue in office of
President of the Company, subject to the terms of a written
employment contract acceptable to PLS and Mark Pinter for a period
of three years.
12. Notices. All notices required or permitted to be given
under this Agreement shall be deemed duly given when delivered
personally or sent by registered or certified mail, postage
prepaid, properly addressed to the party to receive such notice, at
the addresses specified below:
If to Company and Shareholders to: Mark Pinter and/or Jonah Yavne
520 Meehan Avenue
West Lawrence, NY 11691
If to PLS, to: 3200 N. Federal Highway
P. O. Box 907
Boca Raton, FL 33429-0907
13. Modification. This Agreement represents and expresses the
entire agreement between the parties. No waiver or modification of
any one or more of the terms and conditions of this Agreement
shall be valid unless in writing and signed by all parties.
14. Benefit. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors and assigns in
the case of corporate parties hereto and their heirs, estate and
legal representatives in the case of any individual party hereto.
15. Dispute Resolution: Litigation Costs. Any controversy or
claim arising out of or relating to this Agreement or the making,
performance or interpretation thereof shall be settled by
arbitration under the rules of arbitration procedure of the
American Arbitration Association in Palm Beach County, Florida.
The judgment on the arbitration award may be entered into in any
court having jurisdiction thereof in Palm Beach County, Florida.
If either party to this Agreement shall default in the performance
of any provision of this Agreement, or if either such party is
required to take any action to enforce this Agreement or to defend
the validity of or interpret this Agreement or any part hereof,
then the prevailing party shall be entitled to recover all costs
and expenses incurred by reason thereof, including court costs,
litigation expense and reasonable attorney fees.
16. Captions. The captions at the beginning of the several
sections and subsections hereof are not part of the substance of
this Agreement, but are intended only as guides or labels to assist
in locating and reading such sections and subsections. They
should be given no effect in construing this Agreement.
17. Severability. The invalidity or unenforceability of any
provision of this Agreement shall in no way affect the validity or
enforceability of any other provision hereof.
18. Waiver. The waiver by a party hereto of any breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by such party.
19. PLS has reviewed a copy of the Assignment of Leases
Agreement by and between Vision Insights Dispensing Systems, Ltd.
And Mark Pinter as Assignors and P. L. S. N. Y., Inc. as Assignee,
dated the 30th day of August, 1996 (the Assignment ) and attached
hereto as Exhibit A. At Closing, PLS agrees to execute an
agreement which shall make PLS a co-assignee of the Assignment.
IN WITNESS WHEREOF, the parties hereto have caused this agreement
to be duly executed as of the 24th day of September, 1996.
Signed in the presence of: PHYSICIANS LASER SERVICES, INC.
_________________________
By:___________________________
____________________________ Raymond F. Stack, President
Signed in the presence of: P. L. S. N. Y., INC.
_________________________
By: _________________________
____________________________ Mark Pinter, President
Signed in the presence of:
_________________________________
By: _________________________
____________________________ Mark Pinter, Shareholder
Signed in the presence of:
__________________________
By: ___________________________
__________________________ Jonah Yavne, Shareholder
<PAGE>
SCHEDULE A
Company Projected Financial Statements 12 Month Period 11/1/96 -
10/31/97
SCHEDULE B
List of Lawsuits Etc. Against Company (4I)
None
SCHEDULE C
List of Company Assets (4L)
Description Value
Isuzu Truck, 1995 (Leased) $28,000.00
Ultra pulse 5000C Aesthetic (Leased) $130,000.00
SCHEDULE D
List of Insurance (4M)<PAGE>
SCHEDULE E
Company List of Account Receivable and Notes Receivable and
Accounts Payable, Leases, and Notes Payable; and Aging of Accounts
Receivable and Payable (4O)
(Attach Computer Print Out)
Account Number Amount
Notes:
Lessor: Cavin Leasing Corporation
Leased Equipment: 1-Ultrapulse 5000C Aesthetic 117
1- Truespot Collimated Handpiece
1- Aesthetic Preceptorship Trng
Lease Term: 60 Months
Monthly Lease Payments: $1,991.53
Lessor: AT&T Capital Leasing Services, Inc.
Leased Equipment: 1-Computer Pattern Generator
Lease Term: 60 Months
Monthly Lease Payments - $735.20
Lessor: Citibank, N.A.
Leased Equipment: 1-1995 Isuzu Truck
Lease Term: 60 Months
Monthly Lease Payments: $544.37
Receivables:
Payables:
Aging:
30 days 60days 90days or more <PAGE>
SCHEDULE F
List of Capital Expenditures Commitments In Excess of $5,000
SCHEDULE G
Company List of Outstanding Loans to Shareholders (4S)
SCHEDULE H
List of Tax Returns Not Timely Filed or Taxes Unpaid or Other
Violations (4U)
STOCK PURCHASE AGREEMENT
________________________________________
This STOCK PURCHASE AGREEMENT ( Agreement ) is made effective and
entered into as of the 10th day of September, 1996 by and among
PHYSICIANS LASER SERVICES, INC. a corporation organized and
existing under the laws of the State of Delaware ( PLS ), MOBILASE,
INC., a organized and existing under the laws of the State of North
Carolina ( Company ), and the registered owners of all the common
stock of Company issued and outstanding ( Shareholders ).
Shareholders is also sometimes herein intended to mean all the
registered shareholders of Company after the transfer of the
Company shares contemplated herein.
WITNESSETH:
That for and in consideration of the transfer by Shareholders of
all the Company s Common Shares registered in their names to PLS,
and the mutual covenants and agreements herein contained and
subject to the terms and conditions set forth below, the parties
agree as follows:
1. Name, Address and Number of Shares Owned. The following is
the name, address and number of common shares registered in their
names of the persons who own all the issued and outstanding common
shares of Company:
Name of Shareholder- Howard Holderness, Jr., M.D.
address - 300 W. Northwood street, Greensboro, NC 27401-1224
Number of Shares Owned - 500
Name of shareholder - Richard Snell
address - 321 Madison Road, Orange, VA 22960
Number of shares owned - 500
2. Exchange of Stock. (A) On the closing date (Closing) fixed
below, the Shareholders shall deliver to PLS certificates,
evidencing 100% of the common shares of Company outstanding, as
shown on the registration and transfer records of Company, duly
endorsed in blank or with such separate transfer powers attached
thereto, dated as of the Closing and in a form (satisfactory to PLS
and/or its attorney) that shall be effective to vest in PLS good
and marketable title in and to 100% of such Company common shares.
In addition, the Shareholders shall execute, acknowledge and
deliver to PLS such further assignments and other instruments as
may, in the judgment of PLS s attorney, be necessary to conclude
and confirm the sale of the shares hereby contemplated.
(B) Shareholders have provided to and accepted by PLS a
projected Balance Sheet and Profit and Loss Statement prepared as
a compilation ( Compilation ) by the CPA of the Company for the 12
month period beginning November 1, 1996 and it is set forth in
Schedule A. This initial 12 month period is referred to herein
as the Base Period.
(C) Shareholders, upon delivery of such Company shares to PLS,
shall receive certificates for the number of section 144 shares
of common stock of PLS (PLS shares) computed as follows: The
computation shall be made by multiplying by 5 Company Income Before
Taxes shown on the Compilation and the product of this
multiplication shall be divided by $2.00. The result to the
nearest whole number shall be the number of PLS shares to be issued
to Shareholders for the Base Period.
(D) Within 90 days of 10/31/97 Company corporate books for the
Base Period shall be audited by PLS auditors and there shall be an
adjustment in the PLS shares paid and to be paid by PLS to
Shareholders as provided in this paragraph (D). The results of
this audit shall be referred to as the First Adjusted Base Period.
To the extent that the audited Income Before Taxes for the First
Adjusted Base Period of Company exceeds the Compilation of the Base
Period s Income Before Taxes in the Company, PLS shall issue
additional PLS shares to the Shareholders in an amount computed as
follows: Such excess Income Before Taxes shall be multiplied by 5
and the product of such multiplication shall be divided by $2.00.
The result shall be the number of additional PLS shares to be
promptly received by Shareholders. To the extent that the Income
Before Taxes of the Company for the First Adjusted Base Period is
less than Income Before Taxes shown in the Base Period s
Compilation, Shareholders shall return to PLS, PLS shares initially
issued to Shareholders in an amount computed as follows: the First
Adjusted Base Period s deficit of Income Before Taxes contrasted
with the Income Before Taxes in the Base Period s Compilation shall
be multiplied by five and the product of this multiplication
shall be divided by $2.00. The result shall be the number of PLS
shares promptly returned to PLS. The number of shares herein
provided shall be adjusted to the nearest whole share.
(E) The number of shares resulting from the First Adjusted Base
Period s computation by Company shall be limited to an increase of
fifty percent (50%) above or a decrease of fifty percent (50%)
below the original number of PLS shares issued to Shareholders.
(F) Within 90 days of 10/31/98 and upon completion of an audit
by PLS s auditor of the 12 month period 11/1/97-10/31/98 (Second
Adjusted Base Period), Shareholders shall be entitled to additional
PLS shares in an amount computed as follows: To the extent that
the Income Before Taxes as shown on the Second Adjusted Base
Period's audit of Company exceeds the Income Before Taxes as shown
on the First Adjusted Base Period's audit Shareholders shall be
entitled to additional PLS shares computed as follows: Such
excess shall be multiplied by 5 and the product shall be divided by
$2.00 and Shareholders shall promptly receive to nearest whole PLS
shares equal to such amount. The additional number of PLS shares
received from the Second Adjusted Base Period's computation is
limited to an increase of 50% of the PLS shares received under the
First Adjusted Base Period computation.
(G) The $2.00 figure herein is a number arrived at through
negotiation between the parties. If at the time of any such
computation PLS shares shall be publicly traded for less than $3.00
averaged over the previous 20 trading days there shall be an
equitable adjustment in the $2.00 figure. The adjustment shall be
equal to the proportionate amount PLS shares are trading below
$3.00 a share. For example, if at the time of computation PLS
share are trading averaged over the previous 20 trading days at
$2.50, the $2.00 figure shall be reduced 16.66% to $1.67. There
shall be no adjustment if PLS shares are trading above $3.00. For
Shareholders to be eligible for the additional PLS shares provided
for in the First and Second Adjusted Base Periods Richard Snell
must be an employee of the Company in good standing in accordance
with his Employment Contract at the time the above adjustments are
made. PLS shares delivered at anytime to Shareholders shall be
pro- rata to their respective original ownership.
(H) Recapitalization. If at the time of computation under the
First and/or Second Adjusted Base Periods there has been a prior
change in the capitalization of PLS, any such computation shall
equitably reflect such changes.
3. Closing. The closing and the exchange of stock contemplated
in Section 2 above shall take place within 30 days after the
receipt by PLS of Company s Compilation at 10:00 a.m. at the office
of PLS s counsel, Frank R. Brady, Esq. whose address is Frank
Brady, P.A., 370 Camino Gardens Blvd., Suite 341, Floor, Boca
Raton, Florida 33432, subject to change upon the mutual consent of
the parties to this Agreement set forth in writing and signed by
all parties.
4. Representations, Warranties and Protective Convenants of
Shareholders. As of the time of execution hereof, Shareholders
represent and covenant as follows and the same shall be true at
closing:
(a) This Agreement has been duly authorized by the Board of
Directors of Company and Shareholders, in the manner required under
applicable law, and will constitute the valid and binding
obligation of Shareholders and Company, enforceable in accordance
with its terms.
(b) Company is authorized to issue _______ shares of common
stock, of which _____ are issued and outstanding as set forth in
section 1 and the subject of the transaction herein. Company has
not authorized nor issued any preferred stock or any other
class or category of stock other than the common stock referred to
herein.
(c) Company is and will be at the date of Closing, duly
registered and validly existing as a corporation under the
Constitution and laws of the State of North Carolina with
the power and authority to transact business in North Carolina and
is duly registered to transact business in any foreign state where
it conducts business. Company has no subsidiary corporation(s).
(d) Company has the power and authority to carry on its
business, if any, as currently conducted, free and clear of all
liens, encumbrances and claims of any kind or description.
(e) The compiled balance sheet and income statement set forth in
Schedule A fully and accurately reflect a reasonable projection in
the opinion of Shareholders.
(f) Between the date of this Agreement and the time of Closing,
no transactions, other than in the ordinary and usual course of
business, will be engaged in by Company, unless Company shall
notify in writing PLS and PLS shall approve of the same in
writing; and there will be no material adverse change from the
financial or operating condition of Company from the compilation
set forth in Schedule A.
(g) Company will not execute any bonds, notes or other
obligations for borrowed money, without giving prior written notice
thereof made to PLS and without the written approval thereof by
PLS.
(h) As of the date of this agreement, Company is not, and as of
the Closing date will not be, in default under any contract or
agreement, or under the order or decree of any court.
(i) Except as disclosed in Schedule B, to the best knowledge of
Shareholders and the Company there is no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any
court, government agency, or public board or body, pending or
threatened against Company, affecting the validity or
enforceability of this Agreement in any respect or contesting the
powers of Company or the ability of Shareholders to execute and
deliver this Agreement, and neither the execution and delivery of
this Agreement nor the consummation of the transaction contemplated
in this Agreement will conflict with, result in the breach of , or
accelerate the performance required by any contract or agreement to
which Company or Shareholders are now a party.
(j) There are no dividends declared and unpaid on any of the
shares of Company; there are no other authorized or outstanding
equity securities of any class, kind or character of Company other
than stated herein, nor are there any outstanding subscriptions,
options, warrants or other agreements or commitments obligating
Company to issue any additional shares of any class or any debt
obligations convertible into any shares of Company.
(k) Company is not a party to any contract or agreement and is
not subject to any other restriction, materially and adversely
affecting its business, property, or assets.
(l) In Schedule C attached hereto, Company has provided PLS with
a complete list of the assets of Company. Except as otherwise
stated in footnotes to such list of assets, Company has good and
marketable title to all assets listed. All tangible property of
Company is in good condition and repair and its use conforms to all
applicable zoning, building, safety, laws and other regulations.
(m) In Schedule D attached hereto , Company has provided PLS
with an accurate list of all insurance policies in effect with
respect to the business and property of Company and health and
medical insurance as of the date of this Agreement. Insurance, or
comparable coverage, shall be kept in effect by Company until the
Closing and continued thereafter until the conditions subsequent
specified in section 5 hereof have been completed.
(n) Company and Shareholders have full legal power and authority
to execute and deliver this Agreement and other documents necessary
for Closing and to carry out and consummate the transactions
contemplated by this Agreement; Company has fully complied with or
will comply with as of the date of Closing all applicable
provisions of law relating to such transactions; Company has duly
authorized, approved and adopted this Agreement and the taking of
all such action as may be required on the part of Company to carry
out and consummate the transactions and operations contemplated by
the aforesaid instruments; Company has in full force and effect all
consents, approvals, permits or other actions by or filings with
any governmental authority required for the execution and delivery
of this Agreement and for the performance by Company of the
transactions contemplated thereby; from the time of acceptance
hereof through the date of the Closing, except as otherwise
contemplated by this Agreement, Company will not incur any material
liabilities, direct or contingent, or enter into any transaction
that could adversely affect the transactions contemplated by this
Agreement; from the date of its acceptance hereof through the date
of Closing, there shall not have been any material adverse change
in the condition, financial or physical of Company other than
changes in the ordinary course of Company s business that could
adversely affect the transactions contemplate hereby; and the
execution and delivery by Company of this Agreement, the compliance
by Company with the provisions hereof, the carrying out and
consummation by Company of its obligations under such documents and
instruments will not conflict with or constitute a breach of or a
default under any law, administrative regulation, court
decree, instrument or agreement to which Company is subject or by
which Company is or any of its properties are bound.
(o) In Schedule E attached hereto, Company has provided PLS with
an accurate list of accounts and notes receivable, accounts
payable, leases, and notes payable by Company as of the date of
this Agreement. All such accounts and notes receivable are valid
and collectable and represent an undisputed debt for a fixed sum.
All such accounts receivable have been billed in good faith, are
generally due and payable within sixty (60) days after billing and
are not subject to any defense, offset or counterclaim. If any
accounts or notes receivable listed by Company are not fully paid
to Company when due, and any accounts or notes payable, or leases
are inaccurately stated or overdue there shall be a prompt
equitable adjustment in the exchange of shares described in section
2 hereof. Schedule E also states an accurate aging report of
accounts receivable and payable.
(p) The financial statements, lists of leases, accounts
receivable, and all other information furnished and to be furnished
by Company to PLS accurately and fairly reflect, in reasonable
detail, Company s financial condition and operations in all
material respects.
(q) Any certificate signed by any officer or director of Company
and delivered to PLS shall be deemed to be a representation and
warranty by Company as to the statements made therein.
(r) There are no voting agreements, Shareholder agreements or
other agreements or understandings with respect to any of the
shares of Company, except for this Agreement; the Board of
Directors consist of Howard Holderness, Jr. and Richard Snell.
(s) From and after the date of execution hereof, both Company
and Shareholders shall use their best efforts to preserve the
business and good will of Company; on and after the date of
execution of this Agreement, Company not sell or otherwise dispose
of any of its properties or assets exceeding $1,000 in value or any
interest therein, nor has Company agreed to do so; no casualty,
loss or damage in excess of $5,000 will have occurred with respect
to any of Company s assets, whether or not the same is covered by
insurance; no Shareholder or executive officer or key employee
of Company will have left his or her employment with Company;
Company has not made or committed to make any capital expenditure
in excess of $5,000 in the aggregate except as set forth in
paragraph 4 (f) and Schedule F; except as set forth in Schedule G
there are no loans or other obligations outstanding and unpaid by
Company to any Shareholder, nor has Company entered into any
contract with any employee, officer or Shareholder of Company, or
are there any employee benefit, pension or retirement plans,
executive or employee deferred compensation or similar fringe
benefit plans maintained by Company other than a major medical
and/or health insurance plan.
(t) Company has complied in all material respects with all laws
and regulations relating to the employment of labor, including any
provisions thereof relating to wages, hours, collective bargaining
and the payment of Federal employment taxes, or has cured any
failure to so comply and is not liable for any arrears of wages or
any taxes or penalties for failure to comply with any of the
foregoing; and none of Company's employees are currently
represented by a labor union nor are there any organizational
efforts presently pending with respect to employees of Company.
(u) Except as set forth in Schedule H all tax returns for any
federal, state, local or foreign tax required to be filed by
Company have been timely and properly filed and all taxes,
assessments, fees and other government charges required to be paid
with respect thereto have been paid in full or extended; Company is
not a party to or the subject of any audit, action or proceeding
for assessment or collection of taxes of any kind or description;
Company is not in violation of, and the business of Company has not
been conducted in violation of, any federal, state or local laws,
ordinances or regulations, including equal employment opportunity,
employment discrimination, or environmental or health and safety
standards, the violation of which could adversely affect the
operation of the business of Company as it is presently conducted.
(v) Shareholders are the registered owners of the number of fully
paid and nonassessable common shares of Company set forth opposite
their names in section 1 of this Agreement.
5. Interim Operations; Additional Covenants of Company and
Shareholders. Company Shareholders and Company represent, warrant
and covenant that Company will not:
(a) Enter into any transactions prior to the Closing, other than
in the ordinary course of business, and Shareholders will take any
action that is necessary so that Company will not enter into any
such transactions, without the prior written consent of PLS.
(b) Create or incur any indebtedness other than unsecured
current liabilities incurred in the ordinary course of business
without the written consent of PLS.
(c) Grant or permit to arise any mortgage, security interest,
lien, or encumbrance of any kind.
(d) Sell or otherwise dispose of any of its assets other than
merchandise inventories sold in the ordinary course of business.
(e) Increase the compensation paid to any of its officers or
directors above the level paid on the date of this Agreement or
agree to pay to any of its officers, directors or employees any
bonus, severance pay, or pension, whether under an existing
compensation or deferred compensation plan, or otherwise unless
disclosed herein.
6. Covenants of PLS. PLS hereby represents, covenants, and
warrants as follows:
(a) This Agreement has been duly authorized by the board of
directors of PLS, in the manner required under applicable law, and
will constitute the valid and binding obligation of PLS,
enforceable in accordance with its terms.
(b) As of the time of acceptance hereof and at the time of
Closing, PLS is and will be duly incorporated and validly existing
as a corporation under the Constitution and laws of the State of
Delaware, except that PLS hereby acknowledges that it has adopted
resolutions of its board of directors to change the state of it
incorporation to the State of Florida.
(c) As of the date of this agreement, PLS is registered with the
Securities and Exchange Commission (the SEC ) under the Securities
Act of 1933 and is a reporting company under the Securities Act of
1934 and has made all quarterly and annual filings with the SEC as
are required under applicable rules and regulations.
(d) As of the date of this Agreement, PLS is authorized to issue
10,000,000 shares of common stock, of which 5,323,817 shares are
issued and outstanding.
(e) PLS has the power and authority to carry on its business as
currently conducted and holds, or is duly licensed under, all
patents, trademarks, trade names, copyrights, licenses, processes
and formulas necessary for the operation of its business as
currently conducted, free and clear of all liens, encumbrances and
claims of any kind or description.
(f) As of the date of this agreement, PLS is not, and as of the
closing date will not be, in default under any contract or
agreement, or under the order or decree of any court.
(g) To the best knowledge of the PLS, as of the date hereof,
there is no action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, government agency, or
public board or body, pending or threatened against PLS, affecting
or seeking to prohibit, restrain or enjoin the execution of this
Agreement or the exchange of the stock of PLS herein contemplated,
or contesting or affecting the validity or contesting the powers of
PLS, and neither the execution and delivery of this agreement nor
the consummation of the transaction contemplated in this Agreement
will conflict with, result in the breach of, or accelerate the
performance required by any contract or agreement to which PLS is
now a party.
(h) PLS is not a party to any contract or agreement and is not
subject to any other restriction, materially and adversely
affecting its business, property, or assets.
(i) There are no dividends declared and unpaid on any of the
common shares of PLS or its subsidiary.
(j) Any certificate signed by any officer of PLS and delivered
to Company shall be deemed to be a representation and warranty by
PLS as to the statements made therein.
(k) PLS has good and marketable title to all its assets and
properties. All tangible property of PLS is in good condition and
repair and conforms to all applicable zoning, building, safety, and
other regulations.
(l) The board of directors of PLS consists solely of the Gerard
Grau, M.D. and Raymond Stack.
(m) PLS has complied in all material respects with all laws and
regulations relating to the employment of labor, including any
provisions thereof relating to wages, hours, collective bargaining
and the payment of Federal employment taxes, or has cured any
failure to so comply and is not liable for any arrears of wages or
any taxes or penalties for failure to comply with any of the
foregoing; and none of PLS s employees are currently represented by
a labor union nor are there any organizational efforts presently
pending with respect to employees of PLS.
(n) All tax returns for any federal, state, local or foreign tax
required to be filed by PLS have been timely and properly filed or
extended and all taxes, assessments, fees and other government
charges required to be paid with respect thereto have been paid in
full; PLS is not a party to or the subject of any audit, action or
proceeding for assessment or collection of taxes of any kind or
description; PLS is not in violation of, and the business of PLS
has not been conducted in violation of, any federal, state or local
laws, ordinances or regulations, including equal employment
opportunity, employment discrimination, or environmental or health
and safety standards, the violation of which could adversely affect
the operation of the business of PLS as it is presently conducted.
7. Capital for Company. PLS agrees to use its best efforts to
provide Company funding to obtain a $___________________ in
equipment within 60 days of closing.
8. Conditions Subsequent. Within twenty (20) days after the
date of execution of this Agreement, each party shall complete its
due diligence investigation of the other. In the event that either
party notifies the other in writing that its due diligence has
disclosed, in its reasonable judgment, there exists a material
condition that is contrary to the other party s covenants set forth
in this Agreement, either party may at its option terminate this
agreement and neither party shall have any claim against the other.
9. Investment Intent. Shareholders represent that the shares
of common stock of PLS being acquired by it under this Agreement
are being acquired for investment purposes only, and not with a
view to reselling the same or dividing participation with others.
Shareholders represent that they have no present intent to resell
or otherwise dispose of all or any part of such shares. Such
shares are restricted under Rule 144 of the Securities Act of 1933
and will contain a legend printed thereon that such certificates
are so restricted.
10. Access to Records. Both parties and their respective
counsel, accountants, and other representatives, shall have the
right at all times during ordinary business hours to inspect all of
the properties, books, and records of the respective parties and
they shall cooperate with and furnish each other and their
respective representatives, all such information and documents with
respect to the affairs of the other or their respective
representatives may reasonably request
11. Continuation of Company as a Subsidiary of PLS. On and
after the Closing, Company shall continue its existence as a wholly
owned subsidiary of PLS and will be identified as such. The
persons serving as directors of Company shall at their option,
continue in office for as long as the Shareholders continue to own
at least twenty-five percent (25%) of the number of shares of PLS
received pursuant to this Agreement and adjusted in the manner
prescribed in section 2 hereof; at least one additional seat on the
Board of Directors of Company shall be created and filled by the
person(s) nominated by PLS. Howard Holderness, M. D. shall
continue in office of President and Richard Snell as Secretary-
Treasurer of the Company, subject to the terms of a written
employment contract acceptable to PLS and Richard Snell for a
period of three years.
12. Notices. All notices required or permitted to be given
under this Agreement shall be deemed duly given when delivered
personally or sent by registered or certified mail, postage
prepaid, properly addressed to the party to receive such notice,
at the addresses specified below:
If to Company and Shareholders to; Richard Snell
309A Madison Road
Orange, VA 22960
Howard Holderness, Jr., M. D.
300 W. Northwood Street
Greensboro, NC 27401-1224
If to PLS, to: 3200 N. Federal Highway
P. O. Box 907
Boca Raton, FL 33429-0907
13. Modification. This Agreement represents and expresses the
entire agreement between the parties. No waiver or modification of
any one or more of the terms and conditions of this Agreement shall
be valid unless in writing and signed by all parties.
14. Benefit. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors and assigns in
the case of corporate parties hereto and their heirs, estate and
legal representatives in the case of any individual party hereto.
15. Dispute Resolution: Litigation Costs. Any controversy or
claim arising out of or relating to this Agreement or the making,
performance or interpretation thereof shall be settled by
arbitration under the rules of arbitration procedure of the
American Arbitration Association in Palm Beach County, Florida.
The judgment on the arbitration award may be entered into in any
court having jurisdiction thereof in Palm Beach County, Florida.
If either party to this Agreement shall default in the performance
of any provision of this Agreement, or if either such party is
required to take any action to enforce this Agreement or to defend
the validity of or interpret this Agreement or any part hereof,
then the prevailing party shall be entitled to recover all costs
and expenses incurred by reason thereof, including court costs,
litigation expense and reasonable attorney fees.
16. Captions. The captions at the beginning of the several
sections and subsections hereof are not part of the substance of
this Agreement, but are intended only as guides or labels to assist
in locating and reading such sections and subsections. They
should be given no effect in construing this Agreement.
17. Severability. The invalidity or unenforceability of any
provision of this Agreement shall in no way affect the validity or
enforceability of any other provision hereof.
18. Waiver. The waiver by a party hereto of any breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by such party.
IN WITNESS WHEREOF, the parties hereto have caused this agreement
to be duly executed as of the 18th day of September, 1996.
Signed in the presence of: PHYSICIANS LASER SERVICES, INC.
___________________________
By:___________________________
____________________________ Raymond F. Stack, President
Signed in the presence of: MOBILASE, INC.
____________________________
By: __________________________
____________________________ Howard Holderness, M.D., Pres.
Signed in the presence of:
_________________________________
By: __________________________
____________________________ Howard Holderness, M.D.
Shareholder
Signed in the presence of:
_________________________________
By: __________________________
____________________________ Richard Snell, Shareholder
<PAGE>
SCHEDULE A
Company Projected Financial Statements 12 Month Period
11/1/96- 10/31/97<PAGE>
SCHEDULE B
List of Lawsuits Etc. Against Company (4i)
None
SCHEDULE C
List of Company Assets (4l)
Description Value
Cynosure Photogencia-V pulse dye laser
Cynosure Photogencia-T10 Alexandrite laser
Tissue Technologies Tru-Pulse CO2 laser
Cynosure Photogencia-V pulsed dye laser
1990 Ford Van (Owned by Innovative Laser Systems)
1996 Chevrolet (Leased)
SCHEDULE D
List of Insurance (4m)<PAGE>
SCHEDULE E
Company List of Notes Receivable and Accounts Receivable and
Accounts Payable, Leases, and Notes Payable; and Aging of Accounts
Receivable and Payable (4o)
(Attach Computer Print Out)
Account Number Amount
Notes:
None
Receivables:
Aging:
30 days 60days 90days or more
None
Aging:
30 days 60days 90days or more
None
<PAGE>
SCHEDULE F
List of Capital Expenditures Commitments In Excess of $5,000
None
SCHEDULE G
Company List of Outstanding Loans to Shareholders (4s)
None
SCHEDULE H
List of Tax Returns Not Timely Filed or Taxes Unpaid or Other
Violations (4u)
None
