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EXHIBIT
10.46
PURCHASE
AGREEMENT
This PURCHASE
AGREEMENT (the “ Agreement ”) is made as of the
12th day of March, 2007 (“Effective Date”), by and
between SPINEMEDICA CORP. , a Florida corporation (“
Purchaser ” or “ SpineMedica ”);
and SALUMEDICA, LLC , a Georgia limited liability company
(“ Seller ”).
W I T N E S S E T
H:
WHEREAS, Seller
owns one million eight hundred sixty-one thousand one hundred
sixteen (1,861,116) shares of the Purchaser’s common
stock, $.001 par value per share (the “ SpineMedica
Stock ”);
WHEREAS, Seller
desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, one million eight hundred thousand
(1,800,000) shares of the SpineMedica Stock (the
“Shares”) in accordance with the terms and conditions
set forth herein; and
NOW, THEREFORE, in
consideration of the mutual agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as
follows:
1. Purchase and
Sale of Shares . Seller hereby sells, assigns, transfers, and
conveys to Purchaser, and Purchaser hereby purchases from Seller,
the Shares, free and clear of any and all liens, encumbrances,
security interests, or claims of any kind (collectively, “
Encumbrances ”), other than the Encumbrances disclosed
herein or created hereunder, in accordance with the terms and
conditions set forth herein.
2.
Consideration . The total consideration for the purchase of
the Shares shall be $1,980,000, and the total consideration for the
Option Agreement, as described below, shall be $20,000, for a total
of Two Million Dollars ($2,000,000) (the “
Consideration ”) payable at Closing.
3. Option for
License Agreement . In connection with the purchase and sale of
the Shares, Seller shall grant to Purchaser, concurrently with the
execution and delivery of this Agreement, an option to enter into a
Technology License Agreement with Seller, a true and correct copy
of each of the Exclusivity/Option Agreement (“Option
Agreement”) and Technology License Agreement (“
License Agreement ”) being attached hereto as Exhibits
A and B, respectively
4. Issuance of
Stock Certificates; Execution of Option Agreement .
Concurrently with the execution of this Agreement, Seller shall
deliver to the Corporation the stock certificate(s) representing
the SpineMedica Stock, properly endorsed for transfer on the books
of the Corporation, and will cause the Corporation to issue
(i) to Purchaser one or more new stock certificates
representing the Shares (the “ Shares Certificate
”), and (ii) to Seller a new stock certificate for the
61,116 shares of SpineMedica Stock retained by Seller, to reflect
the purchase of the Shares by Purchaser. Also, Seller shall execute
and deliver to Purchaser the Option Agreement and the Technology
License Agreement.
5.
Representations of Seller . As an inducement to Purchaser to
enter into this Agreement, Seller represents and warrants to
Purchaser as follows and acknowledges that each of these
representations and warranties is being relied upon by Purchaser in
entering this Agreement.
(a)
Ownership .
(i) Seller is
the record and beneficial owner of the Shares, free and clear of
any Encumbrances except as created herein, and except that the
Shares are subject to the Stockholders’ Agreement among the
shareholders of SpineMedica dated June 30, 2005 (“
Stockholders’ Agreement ”), and that certain
Voting Agreement dated October 20, 2005 (“ Voting
Agreement ”) among Seller, Purchaser and certain other
shareholders of SpineMedica. Seller has fully complied with all of
Seller’s notice requirements under the Stockholders’
Agreement. Seller has not entered into any agreement giving any
third party any right or option to acquire any interest in the
Shares. The Shares have been validly issued, fully paid and
nonassessable. Upon the execution and delivery of this Agreement,
Seller shall transfer to Purchaser all right, title and interest in
and to the Shares free and clear of any Encumbrances, except as
otherwise disclosed herein or created hereunder.
(ii) Seller
owns or holds all rights in and to the Technology (as defined in
the Option Agreement) necessary for Seller’s full performance
of its obligations under the Option Agreement and the License
Agreement.
(b)
Organization; Authority . Seller is a limited liability
company duly organized and validly existing under the laws of the
State of Georgia, with full company power and authority to execute
and deliver this
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