UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Pursuant to Sections 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 29, 1999
ISO BLOCK PRODUCTS USA, INC.
(Exact name of registrant as specified in charter)
Colorado
(State or other jurisdiction of incorporation or organization)
33-23257-D 84-1026503
(Commission File Number) (I.R.S. Employer Identification Number)
8037 South Datura Street, Littleton, Colorado 80120
(Address of Principal Executive Offices and Zip Code)
(303) 795-9729
(Registrant's telephone number, including area code)
(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets.
ISO BLOCK PRODUCTS USA, INC., a Colorado corporation ("Company"),
entered into an Exchange Agreement and Plan of Reorganization dated December
27, 1996 ("Exchange Agreement"), with FRANCHISE CONNECTION, INC., a Colorado
corporation ("FCI"), and the shareholders of FCI (the "FCI Holders"). Pursuant
to the Exchange Agreement, the Company acquired all of the issued and
outstanding shares of capital stock of FCI (the "FCI Shares"), which became a
wholly owned subsidiary of the Company. In exchange for the FCI Shares, the
Company issued to the FCI Holders an aggregate of 497,500 shares of the
authorized but unissued shares of the Company's common stock, no par value,
and 1,500,000 shares of the Series 1996 Non-Voting Convertible Preferred
Stock, no par value, of the Company (collectively, the "Exchange Shares").
The acquisition of FCI is referred to below as the "FCI Exchange." The
Exchange Shares were not registered under the Securities Act of 1933, as
amended ("Act"), or any state laws but were issued in reliance upon
exemptions from registration provided by Section 4(2) of the Act and similar
exemptions available under applicable state laws.
At the closing under the Exchange Agreement, FCI director and President
Johnny M. Wilson ("Wilson") was elected to the Company's board of directors
and continued to be a director of and to run FCI and FCI's subsidiary,
Brilliant Marketing, Inc., and Egin Bresnig and Dean Wicker, officers and
directors of the Company, became officers and directors of FCI.
The Company, FCI, the FCI Holders, Magna Dry LLC, and Brasher &
Company, attorneys at law, have entered into and consummated an Unwinding and
Stock Exchange Agreement dated August 31, 1999 (the "Unwinding Agreement"),
which provides for the unwinding and rescission of the FCI Exchange, as
described below in more detail. On that date, Wilson resigned as an officer
and director of the Company and his employment agreement with the Company was
cancelled, and Egin Bresnig and Dean Wicker resigned as officers and directors
of FCI.
UNWINDING and STOCK EXCHANGE AGREEMENT
Effective upon the consummation of the Unwinding Agreement, the Exchange
Agreement was cancelled and the following things were done or occurred:
(1) The 1,500,000 shares of Series 1996 Non-Voting Convertible
Preferred Stock issued to the FCI Group were surrendered
to the Company and cancelled;
(2) The 1,000,000 FCI Shares were returned to the FCI Holders;
(3) The principal and interest amounts due under loans made by the
Company to FCI, aggregating approximately $390,000,
were forgiven by the Company;
(4) Ownership of Magna Dry LLC, which was organized by Wilson
for the Company, was tranferred to Wilson;
(5) FCI and Magna Dry LLC each delivered a general release of the
Company;
(6) The Company delivered a bill of sale conveying all of the
Company's ownership or other interest in and to Magna Dry
LLC;
(7) Wilson delivered to the Company his written assumption of all
Magna Dry LLC liabilities;
The Unwinding Agreement constitutes an unwinding and rescission of the
Exchange Agreement, not a repurchase of the Preferred Exchanged Shares by the
Company. The 497,500 shares of the Company's common stock issued to the FCI
Holders were not surrendered or cancelled and remain outstanding. Upon Wilson's
satisfactory performance of his obligations under the Stock Escrow and
Settlement Agreement discussed below, the Company will grant to FCI a general
release of all liability.
NO SHAREHOLDER APPROVAL. Because FCI and its subsidiary and
Magna Dry LLC have virtually no assets, and the Company possesses other
significant assets besides its ownership of FCI adn magna Dry LLC, the Company's
Board of Directors do not believe that the unwinding of the FCI Exchange
involves a bulk sale or requires the prior approval of the Company's
shareholders. The Company therefore does not intend to seek shareholder
approval for the unwinding.
INDEMNITY OBLIGATIONS. The Unwinding Agreement provides that
FCI, Magna Dry LLC and Wilson each agree to defend, indemnify and hold the
Company harmless from and against any and all losses, liabilities, damages,
costs or expenses (including reasonable attorney's fees, penalties and
interest) arising from or incurred as a result of (a) any false statement,
representation or warranty respectively made by FCI, Magna Dry LLC or Wilson
in the Unwinding Agreement, or (b) the respective breach of any agreement or
covenant made by FCI, Magna Dry LLC or Wilson in the Unwinding Agreement, or
(c) the failure of FCI, Magna Dry LLC or Wilson to pay all sums owed under an
office lease entered into by the Company for the benefit of Magna Dry LLC.
Under the Unwinding Agreement, the Company agrees to defend, indemnify
and hold FCI, Magna Dry LLC and Wilson harmless from and against any and all
losses, liabilities, damages, costs or expenses (including reasonable
attorney's fees, penalties and interest) arising from or incurred as a result
of (a) any false statement, representation or warranty made by the Company
in the Unwinding Agreement, or (b)the breach of any agreement or covenant
made by the Company in the Unwinding Agreement.
STOCK ESCROW and SETTLEMENT AGREEMENT
To carry out certain provisions of the Unwinding Agreement, the Company,
Wilson, Ada V. Wilson and Brasher & Company, attorneys at law, entered into a
Stock Escrow and Settlement Agreement dated October 28, 1998 (the "Settlement
Agreement"). Under the Settlement Agreement, Wilson and Ada V. Wilson agreed
to place 100,000 shares of the common stock of the Company acquired by them in
the FCI Exchange into an escrow, to be sold to cover certain liabilities of
the Company that were incurred for the benefit of FCI or Magna Dry LLC. If the
proceeds received from the sale of the escrowed shares are not sufficient to
pay off such liabilities, then Wilson and Ada V. Wilson shall nonetheless have
no further liability to the Company in regard to those liabilities. If the
proceeds are sufficient to cover those liabilities, then the balance of the
unsold shares in escrow will be returned to them.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements. Not required.
(b) Pro Forma Financial Information. Not required.
(c) Exhibits:
2.1 Unwinding and Stock Exchange Agreement dated
August 31, 1999, among the Company, Franchise
Connection, Inc., the shareholders of Franchise
Connection, Inc., Magna Dry LLC, and Brasher & Company....... 1
10.1 Stock Escrow and Settlement Agreement dated October 28,
1999, among the Company, Brasher & Company, Johnny M.
Wilson and Ada V. Wilson....................................... 1
1 Included as part of this report.
2 Incorporated by reference to another registration statement,
report or document.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report on Form 8-K to be signed on its behalf
by the undersigned, thereunto duly authorized.
DATED: November 30, 1999
ISO BLOCK PRODUCTS USA, INC.
/s/ Egin Bresnig
By..............................................
Egin Bresnig, President, Chief Exec. Officer
EXHIBIT 2.1
UNWINDING AND STOCK EXCHANGE AGREEMENT
This Agreement is entered into as of August 31, 1999, among
the following persons:
ISO BLOCK PRODUCTS USA, INC., a Colorado corporation
whose address is 8037 South Datura Street, Littleton, Colorado
80120 ("ISO");
BRASHER & COMPANY, attorneys at law, as Escrow Agent,
whose address is 90 Madison Street, Suite 707, Denver,
Colorado 80206 ("Escrow Agent");
FRANCHISE CONNECTION, INC., a Colorado corporation
wholly owned by ISO and whose address is 4155 East Jewell
Avenue, Suite 1001, Denver, Colorado 80222 ("FCI");
MAGNA DRY LLC, a Colorado limited liability company,
whose sole owner-member is ISO, and whose address is the
same as FCI ("Magna Dry");
JOHNNY M. WILSON, an individual whose address is the
same as FCI ("Wilson"); and
Those shareholders of the Company who formerly were
shareholders of FCI who have executed this Agreement (the
"FCI Group"); the term FCI Group as used herein includes
Wilson unless the context otherwise clearly requires.
R E C I T A L S:
The parties acknowledge and understand that:
A. ISO owns 1,000,000 shares of the common stock of FCI,
which is all of the capital stock of FCI issued and outstanding. ISO
currently has 3,924,730 shares of common stock issued and outstanding.
B. ISO entered into an Exchange Agreement and Plan of
Reorganization dated December 27, 1996 ("Exchange Agreement"),
among ISO, FCI and the FCI Group, who then were the shareholders of
FCI. As of the effective date of the Exchange, FCI became a wholly
owned subsidiary of ISO.
C. At the effective time of the Exchange, ISO issued to the
FCI Group all of the Exchange Shares, which consisted of an aggregate
of 497,500 shares of the authorized common stock of ISO, no par value
(the "Common Exchange Shares"), and an aggregate of 1,500,000
shares of the authorized Series 1996, Non-Voting Convertible Preferred
Stock (the "Preferred Exchange Shares"), as follows:
Comm. Exchange Pref. Exchange
Name Shares Shares
Johnny M. Wilson &
Ada V. Wilson JTWROS 362,500 1,087,500
A. R. Boulerice 125,000 375,000
Bob Lynn 2,500 7,500
Lisa Sheffield 2,500 15,000
Donald E. Israel &
Cynthia J. Israel 5,000 15,000
------- ---------
497,500 1,500,000
D. As a result of the Exchange, Wilson became an officer
and director of ISO and remained an officer and director of FCI. Also
as a result of the Exchange, Egin Bresnig ("Bresnig") and Dean Wicker
("Wicker") were elected to the board of directors of FCI, with Wicker
serving as Chairman of the board.
E. ISO has to date loaned a total of US$389,756.60 in cash
to FCI for operations, which amounts have been carried on ISO's books
as an intercompany debt of FCI, and no part of which has been repaid.
This amount and all interest accrued or imputed thereon through the
date of this Agreement are herein referred to as the "Loan."
F. ISO subsequently organized Magna Dry and is the sole
member-owner of Magna Dry. Wilson is the President of Magna Dry.
F. ISO, as tenant, entered into that certain Industrial Multi-Tenant
Lease dated January 20, 1998, with First Industrial L.P., a
Delaware limited partnership, as landlord (the "Office Lease"), with a
36-month term, which office space was leased for the benefit of and has
been exclusively occupied by FCI and/or Magna Dry. ISO's current and
future liabilities under the Office Lease are hereinafter referred to as the
"Office Lease Liabilities."
G. FCI entered into that certain Vehicle Lease dated
October 9, 1997, with Burt Chevrolet, Inc. (the "Vehicle Lease")
covering that certain Chevrolet Astro Van, VIN
1GCDM19M6WB103794, requiring payments of $403.30 per month,
plus late charges and other fees as applicable. The Vehicle Lease has
been guaranteed by Bresnig, personally, who has been required to pay
several installments and charges thereunder.
H. ISO is indebted to Mr. Hal Schatvet pursuant to a
promissory note dated December 1, 1997, in the principal amount of
$100,000.00 plus accrued interest (the "Schatvet Note"), borrowed by
ISO to provide operating capital to FCI and/or Magna Dry. Due to lack
of cash on hand and lack of operating income of ISO (and FCI and
Magna Dry), ISO currently is not in a position to repay the Schatvet
Note. After ISO's liquidation of certain real estate in Broomfield,
Colorado, the proceeds of which will be used to pay down the Schatvet
Note, it is estimated that ISO still will owe $75,000.00 or more under
the note. The principal amount owed Mr. Schatvet after such paydowns
and all interest accrued thereon are sometimes referred to below as the
"Shortfall Amount."
I. ISO, Wilson and the FCI Group now desire to enter into
and consummate a transaction in which, among other things, Wilson
and the other FCI Group will surrender to ISO for cancellation all of the
Preferred Exchange Shares, ownership of FCI will be transferred from
ISO to the FCI Group in proportion to their original interests, Bresnig
and Wicker will resign as officers and directors of FCI, ownership of
Magna Dry will be transferred from ISO to Wilson, Wilson will place
certain of the Common Exchange Shares owned by him into an escrow
to cover certain ISO obligations, Wilson will resign as an officer and
director of ISO and Wilson's employment agreement with ISO and FCI
will be cancelled; and certain other matters provided below.
NOW THEREFORE, in consideration of the mutual promises,
covenants, representations and warranties set forth below, the parties
agree that:
1. Unwinding of Exchange and Exchange of Shares.
The parties now desire to cancel the Exchange Agreement and in effect
rescind the Exchange with the same effect as if the Exchange never
occurred and simultaneously complete a surrender and exchange of
preferred shares in which:
(i) The FCI Group will surrender to ISO for cancellation
and ISO shall cancel all of the 1,500,000 Preferred
Exchange Shares, which are still outstanding and held
by the FCI Group; and
(ii) ISO will surrender to FCI for cancellation and FCI shall
cancel the 1,000,000 shares of common stock of FCI
that ISO now holds; and
(iii) FCI will issue to the FCI Group an aggregate of
1,000,000 shares of its common stock in the proportions
and amounts set forth below in Section 2, in exchange
for their cancellation of the outstanding Preferred
Exchange Shares; and
(iv) The Loan shall be forgiven in its entirety and cancelled
by ISO.
(v) Bresnig and Wicker shall deliver their resignations as
officers and directors of FCI, Wilson shall deliver his
written resignation as an officer and director of ISO, and
the Employment Agreement between Wilson, ISO and
FCI dated December 27, 1996 shall be cancelled without
further liability whatever on the part of ISO or FCI for
any past performance owed or claimed to be owed to
Wilson.
This Agreement constitutes an unwinding of the Exchange
Agreement, not a repurchase of the Preferred Exchanged Shares.
2. Manner of Consummating Transactions. On the
effective date of this Agreement:
(a) All certificates evidencing the 1,500,000
Preferred Exchange Shares issued and outstanding in the names of the
FCI Group shall be surrendered by them to ISO for cancellation, and
upon ISO's receipt of such certificates the Exchange Shares shall be
cancelled on the transfer books of ISO and resume the status of
authorized and unissued shares and thereafter may be issued as
preferred shares of the same or any other series now or hereafter
designated.
(b) The certificate evidencing the 1,000,000 shares
of FCI issued and outstanding in the name of ISO (the "FCI Shares")
shall be surrendered by ISO to FCI for cancellation, and upon FCI's
receipt of such shares shall be reissued as below provided.
(c) FCI shall issue to the FCI Group an aggregate of
1,000,000 shares of its common stock, no par value (the "Settlement
Shares"), in exchange for their cancellation of the outstanding Preferred
Exchange Shares and the other consideration herein recited, and the
Settlement Shares shall upon issuance be the only shares of FCI issued
and outstanding. The Settlement Shares shall be issued by FCI to the
FCI Group in the following proportions based upon the proportions of
their original ownership of the shares of FCI at the time of the
Exchange:
Number of
Name Sett. Shares Pct. %
Johnny M. Wilson &
Ada V. Wilson ROS 725,000 72.5
A. R. Boulerice 250,000 25.0
Bob Lynn 5,000 0.5
Lisa Sheffield 10,000 1.0
Donald E. & Cynthia
J. Israel 10,000 1.0
--------- -----
1,000,000 100.0
(d) The Exchange Agreement shall be cancelled in
its entirety without liability to any party thereto, and any performance
owing to or by any party thereunder shall be deemed satisfied by virtue
of and at the time of the cancellation. No party to the Exchange
Agreement shall after the date of cancellation have any liability to
another party by virtue of any provision of the Exchange Agreement.
(e) ISO shall at the closing of these transactions
forgive and cancel the Loan for no consideration other than such as is
set forth in this Agreement, the sufficiency of which ISO acknowledges.
FCI shall deliver to ISO at closing a general release of all liability. ISO
shall, effective upon Wilson's faithful performance under the Escrow
Agreement described below, deliver to FCI a release of the Loan and
any interest due or imputed on the Loan.
(f) Wilson shall deliver to ISO a letter confirming
that the Employment Agreement between Wilson, FCI and ISO is
cancelled for adequate consideration herein recited, that no sums are
owed for past or future services, whether due or claimed due, and that
it no longer has any force or effect.
3. Restricted Status of Settlement Shares. The following
provisions, which the FCI Group acknowledge and to which they each
agree, are applicable to the Settlement Shares to be issued by FCI:
(a) The Settlement Shares have not been registered
under the Securities Act of 1933, as amended ("Act"), in reliance upon
exemptions from registration provided by Section 4(2) of the Act or
under the securities laws of the State of Colorado or any rules or
regulations promulgated thereunder, on the grounds that the offer, sale
and issuance of the Settlement Shares is a transaction not involving any
public offering. The Settlement Shares are "restricted securities" as that
term is defined in Rule 144(a) of the General Rules and Regulations
under the Act and must be held indefinitely, unless they are
subsequently registered under the Act or an exemption from such
registration requirements is available for their resale.
(b) Certificates evidencing the Settlement Shares
shall, unless and until removed in accordance with law, bear a
restrictive legend substantially in the following form:
"The shares represented by this Certificate have not
been registered under the Securities Act of 1933, as amended
(the "Act"), and are "restricted securities" as that term is
defined in Rule 144 under the Act. These shares may not be
offered for sale, sold or otherwise transferred except pursuant
to an effective registration statement under the Act, or pursuant
to an exemption from registration under the Act."
4. Transfer of Magna Dry to Wilson; Etc. At the closing
of the unwinding, ISO shall transfer to Wilson for the sum of Ten
Dollars ($10.00) and other valuable consideration, all of the
membership interest which ISO owns in and to Magna Dry. In evidence
thereof, ISO shall execute, seal and deliver to Wilson a simple bill of
sale. Wilson shall execute and deliver to ISO a written instrument in
which Wilson personally assumes all liabilities whatever owed or
claimed to be owed by ISO to Magna Dry at the closing date. Magna
Dry shall execute, seal and deliver to ISO a general release of all
liabilities existing at the closing date.
5. Escrow and Sale of Wilson Shares. Wilson
acknowledges that the Schatvet Note was incurred and the Office Lease
was entered into solely for Magna Dry's benefit. In order to assure
payment of the Shortfall Amount and Office Lease Liabilities, Wilson
agrees at closing to enter into the Stock Escrow and Settlement
Agreement among ISO, Wilson and Escrow Agent in the form of
Exhibit A hereto (the "Escrow Agreement") and to perform the Escrow
Agreement in accordance with its terms. ISO's release of the Loan shall
be expressly conditioned upon Wilson's faithful performance of the
terms and conditions of the Escrow. The Escrow Agent agrees to enter
into the Escrow Agreement and shall certify to ISO and Wilson in
writing when the Shortfall Amount and Office Lease Liabilities both
have been paid or settled in full and such certification shall be
conclusive.
6. Waiver of Damages or Compensation. The parties
agree and acknowledge that upon consummating the transactions herein
contemplated,
(a) FCI shall not be owed any money or thing of
value by ISO; but if it should be determined that FCI is owed any
money or thing of value by ISO as of the closing, such debt shall be
offset and deemed satisfied in full by ISO's cancellation of the Loan.
(b) Wilson and the other FCI Group are not owed
and at closing shall not be owed any money or thing of value by ISO,
and they each forever waive the right to claim any salary, commissions,
payments, money, or other damages or recompense of any kind
whatsoever from ISO.
(c) the FCI Group are not and shall not be entitled to
and forever waive any equity interest or other right or interest
whatsoever in or to ISO, and specifically waive any future value which
the surrendered Preferred Exchange Shares might ever have had.
(d) ISO forever waives any right to collect the Loan
and waives any equity interest or other right or interest whatsoever in
or to FCI or Magna Dry, including any future value which the
surrendered FCI Shares or equity interest in Magna Dry might ever have
had.
7. ISO's Representations and Warranties. ISO
represents and warrants to FCI and the FCI Group that the FCI Shares
being surrendered for cancellation and are free and clear of any claim
of a third party, or any lien, claim or other encumbrance whatsoever,
whether created voluntarily or arising by law or otherwise.
8. Representations and Warranties of FCI, Magna Dry
and the FCI Group. FCI and the FCI Group represent and warrant to
ISO that:
(a) Wilson has at all times since the Exchange been
the principal executive and operating officer of ISO and FCI and is
aware of their respective results of operations, financial condition and
commitments.
(b) Except as expressly acknowledged in this
Agreement, ISO has no obligations, debts, payables or liabilities
(whether direct, indirect, accrued, contingent, absolute, secured or
unsecured or otherwise) and is not indebted to, and has not guaranteed
payment of any sum on behalf of, FCI or Magna Dry, or any current or
past employee, officer or director of Magna Dry or FCI or to any FCI
Group for any sum.
(c) Neither Wilson nor any other FCI Group member
is owed or entitled to receive or demand any capital stock of ISO.
(d) Wilson and the other FCI Group represent and
warrant to ISO that the Preferred Exchange Shares respectively being
surrendered for cancellation by them are free and clear of any claim of
a third party, or any lien, claim or other encumbrance whatsoever,
whether created voluntarily or arising by law or otherwise.
9. Indemnification.
(a) Indemnification by FCI, Magna Dry and Wilson.
FCI, Magna Dry and Wilson each agrees to defend, indemnify and hold
ISO harmless from and against any and all losses, liabilities, damages,
costs or expenses (including reasonable attorney's fees, penalties and
interest) arising from or incurred as a result of (a) any false statement,
representation or warranty respectively made by FCI, Magna Dry or
Wilson in this Agreement, or (b) the respective breach of any agreement
or covenant made by FCI, Magna Dry or Wilson in this Agreement, or
(c) the failure of FCI, Magna Dry or Wilson to pay all sums owed under
the Office Lease.
(b) Indemnification by ISO. ISO agrees to defend,
indemnify and hold FCI, Magna Dry and Wilson harmless from and
against any and all losses, liabilities, damages, costs or expenses
(including reasonable attorney's fees, penalties and interest) arising from
or incurred as a result of (a) any false statement, representation or
warranty made by ISO in this Agreement, or (b) the breach of any
agreement or covenant made by ISO in this Agreement.
(c) Survival of Covenants and Warranties. The
representations, warranties, covenants and agreements made by FCI,
Magna Dry and the FCI Group on the one hand, and by ISO on the
other hand, shall survive the closing of this Agreement and shall be
fully enforceable at law or in equity against such other party and its
successors and assigns for a period of one year after the closing. Any
investigation at any time made by or on behalf of (or any disclosure to)
any party hereto shall not diminish in any respect whatsoever its right
to rely on the representations and warranties of the other party hereto.
(d) Notice of Claims. ISO agrees to give prompt
written notice to FCI, Magna Dry and Wilson; and FCI, Magna Dry and
Wilson each agree to give prompt written notice to ISO, of any claim
against the party giving notice which might give rise to a claim by it
against the other party hereto based upon the indemnity provisions
above, stating the nature and basis of the claim and the actual or
estimated amount thereof; provided, however, that failure to give such
notice will not affect the obligation of the indemnifying party unless,
and only to the extent that, the indemnifying party is actually prejudiced
thereby.
In the event that any action, suit or proceeding is brought against
any person indemnified above ("Action") and a party to this Agreement
may have liability under the indemnification provisions above, the
indemnifying party shall have the right, at its sole cost and expense, to
defend the Action in the name of or on behalf of the party indemnified
and, in connection with any such Action, the parties agree to render to
each other such assistance as may reasonably be required in order to
ensure the proper and adequate defense of the Action; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate because of
actual or potential differing interests between such indemnified party
and any other party represented by such counsel. Neither party hereto
shall make any settlement of any claim which might give rise to liability
of the other party under the indemnification provisions contained herein
without the written consent of such other party, which consent such
other party covenants shall not be unreasonably withheld.
10. Other Agreements. The parties further agree that:
(a) The parties each agree to take such further
actions and execute such other documents as may be necessary to carry
out the intent and purpose of this Agreement, including but not limited
to confirming in writing matters that are set forth in this Agreement.
(b) In order that ISO is assured of information that
may be needed to prepare financial statements or other financial
information for the three years respectively ended and ending March 31,
2000, 1999 and 1998 (the "Financial Period"), FCI, Magna Dry and
Wilson agree that FCI and Magna Dry shall for a period of two years
following the date of this Agreement make all of its financial books and
records relating to the Financial Period available to ISO upon request
for examination and copying. If FCI, Magna Dry or Wilson, or either of
them, violates this provision, ISO may judicially enforce this provision
and in that event will be entitled to recover its actual costs (including
attorneys' fees) thereof from FCI, Magna Dry or Wilson. FCI and
Magna Dry each agree to keep their books and records reflecting all
operations and events during the Financial Period intact and available
during the two-year period following the date of this Agreement.
(c) Wilson agrees to pay off in full all installments
and other charges due under the Vehicle Lease from the proceeds of the
sale, to persons associated with MedScan Technologies, Inc. of his
Common Exchange Shares not placed in the Escrow.
(d) FCI and Magna Dry agree to pay and shall
assume in writing all of ISO's obligations under the Office Lease and
shall indemnify ISO against their failure to settle all such obligations.
11. Reliance by Transfer Agent. Every current and future
transfer agent and registrar of ISO's common stock may rely upon this
Agreement as authority for the cancellation of the Preferred Exchange
Shares and their return to the status of authorized and unissued shares.
12. Closing. (a) Closing of the transactions contemplated
in this Agreement shall occur when:
(1) all original certificates evidencing the Preferred
Exchange Shares are surrendered to ISO by Wilson and
the FCI Group;
(2) the original certificate evidencing the 1,000,000 FCI
Shares is returned to FCI by ISO;
(3) certificates, properly legended, evidencing the 1,000,000
Settlement Shares are delivered to Wilson and the FCI
Group;
(4) ISO shall deliver to FCI a written release of the Loan
and any interest due or imputed on the Loan, effective
upon Wilson's faithful performance under the Escrow
Agreement as certified by the Escrow Agent;
(5) FCI shall deliver to ISO a general release of all liability;
(6) Magna Dry shall deliver to ISO a general release of all
liability;
(7) Bresnig and Wicker shall deliver their resignations as
officers and directors of FCI, confirming that nothing
whatever is owed them by FCI;
(8) Wilson shall deliver to ISO his resignation as an officer
and director of ISO, confirming that nothing whatever is
owed him by ISO;
(9) Wilson shall deliver to ISO a letter confirming that the
Employment Agreement dated December 27, 1996, is
cancelled;
(10) ISO shall deliver to Wilson a bill of sale conveying to
him all of ISO's interest in Magna Dry;
(11) Wilson shall deliver to ISO a written assumption of all
Magna Dry liabilities;
(12) Wilson shall deliver to ISO a $10 check for the purchase
of ISO's interest in Magna Dry;
(b) Closing Agent. The parties agree that John D.
Brasher Jr., Attorney, who also is a shareholder of and counsel to ISO,
shall act as closing agent for the parties, and all other parties
acknowledge and waive any potential conflict arising from his multiple
status as counsel, shareholder, and closing agent. No party has been
given any legal advice by Mr. Brasher nor has he acted as attorney to
any party, except ISO, in connection with this Agreement. Certificates
evidencing the Preferred Exchange Shares and the FCI Shares shall be
sent to Mr. Brasher, who shall cancel them at the closing. FCI shall
furnish the executed certificates for Settlement Shares to Mr. Brasher,
who shall deliver them to the FCI Group, as applicable, at closing.
All other documents and things required at closing shall also be
delivered to Mr. Brasher for delivery at closing to the appropriate
parties when all conditions have been satisfied or waived. Mr. Brasher
shall not be liable to any party except for fraud, gross negligence or
willful misconduct. Mr. Brasher's address is 90 Madison Street, Suite
707, Denver, Colorado (USA) 80206.
13. Miscellaneous Provisions.
(a) Notices. Every notice, request and instruction
required or permitted under this Agreement shall be in writing and,
except as otherwise permitted herein, shall be delivered by registered or
certified mail, overnight air courier or other messenger service which
requires the receiver's signature and regularly retains its delivery
receipts, or by personal delivery, if to a member of the FCI Group, in
care of FCI for forwarding, and if to ISO, Magna Dry or FCI, then as
follows:
If to ISO: 90 Madison Street, Suite 707
Denver, Colorado 80206
ATTN: John Brasher
If to Wilson, FCI
or Magna Dry: 10691 East Bethany Drive, Suite 800
Aurora, Colorado 80014
ATTN: Johnny M. Wilson
or to any subsequent address provided by a party or such other persons
in accordance with this Section.
(b) Expenses. Each party shall bear its own costs and
expenses in connection with this Agreement, and no party shall be liable
to any other party for any costs or expenses incurred in connection with
this Agreement.
(c) Benefit. This Agreement shall be binding upon
and inure to the benefit of ISO and Subsidiary and the Shareholders, and
their respective heirs, successors, assigns and legal representatives.
Nothing in this Agreement is intended, expressly or impliedly, to confer
any benefit, right or remedy upon any person other than the parties, and
no person shall be deemed a third party beneficiary of this Agreement.
(d) Governing Law; etc. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Colorado and shall be interpreted as if all parties participated equally in
its drafting. Headings appearing in this Agreement are employed for
convenience of reference only and shall not be considered in
interpreting this Agreement.
(e) Waiver. Any party may waive the satisfaction of
any one or more conditions precedent to its obligations hereunder and
may waive any other rights hereunder. Any such waiver must be in
writing, signed by the party making the waiver and clearly identify the
condition precedent or other right being waived. No such waiver shall
operate as a subsequent waiver of any other condition precedent or other
right.
(d) Modification; Entire Agreement. This
Agreement may not be amended or supplemented except by an
agreement in writing signed by ISO, FCI and the FCI Group. This
Agreement contains the entire agreement between the parties.
(g) Severability. In the event any provision of this
Agreement is deemed to be unenforceable for any reason, such
provision shall not invalidate the remaining portion of this Agreement,
which if possible shall be enforced as if such unenforceable provision
never were written.
(h) Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be considered an
original, but all of which together shall constitute one and the same
instrument.
(i) Authorization. Every party represents and
warrants to every other party that he, she or it has full power and
authority to enter into and perform this Agreement in accordance with
its terms, and if the party is a corporation or other entity, that the
execution and performance of this Agreement has been authorized by
all requisite action of its board of directors or equivalent governing
body.
IN WITNESS WHEREOF, the undersigned parties have
executed this Agreement, and ISO, Magna Dry, Wilson, Brasher &
Company and FCI have initialed every preceding page, effective as of
the date first above written.
ISO BLOCK PRODUCTS USA, INC. FRANCHISE CONNECTION, INC.
/s/ Egin Bresnig /s/ Johnny Wilson
By............................. By.............................
Egin Bresnig, President Johnny Wilson, President
JOHNNY M. WILSON, Individually MAGNA DRY LLC
/s/ Johnny M. Wilson /s/ Johnny Wilson
X................................ By.............................
Signature Johnny Wilson, President
BRASHER & COMPANY, Escrow Agent
/s/ John Brasher
By...............................
John Brasher, Owner
SIGNATURES OF THE FCI GROUP
A. R. BOULERICE BOB LYNN
/s/ A.R. Boulerice /s/ Bob Lynn
X.............................. X.............................
Signature Signature
LISA SHEFFIELD DONALD E. ISRAEL &
CYNTHIA J. ISRAEL
/s/ Donald E. Israel
/s/ Lisa Sheffield Cynthia J. Israel
X.............................. X.............................
Signature Signature
ADA V. WILSON
/s/ Ada V. Wilson
X...............................
Signature
NOTARIAL ACKNOWLEDGMENTS
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on August 31st, 1999, before me, the
undersigned Notary Public, personally came and appeared EGIN
BRESNIG, President of ISO BLOCK PRODUCTS USA, INC., who
after being duly sworn declared that he executed the foregoing
Unwinding and Stock Exchange Agreement as his free act and deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on August 31st, 1999, before me, the
undersigned Notary Public, personally came and appeared JOHNNY
WILSON, President of FRANCHISE CONNECTION, INC., who after
being duly sworn declared that he executed the foregoing Unwinding
and Stock Exchange Agreement as his free act and deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on August 31st, 1999, before me, the
undersigned Notary Public, personally came and appeared JOHNNY
WILSON, Managing Director of MAGNA DRY LLC, who after being
duly sworn declared that he executed the foregoing Unwinding and
Stock Exchange Agreement as his free act and deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on August 31st, 1999, before me, the
undersigned Notary Public, personally came and appeared JOHNNY
WILSON, individually, who after being duly sworn declared that he
executed the foregoing Unwinding and Stock Exchange Agreement as
his free act and deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on August 31st, 1999, before me, the
undersigned Notary Public, personally came and appeared JOHN D.
BRASHER JR., Esquire, owner of BRASHER & COMPANY,
Attorneys at Law, who after being duly sworn declared that he executed
the foregoing Unwinding and Stock Exchange Agreement as his free act
and deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
NOTARIAL ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF SCOTT )
I HEREBY CERTIFY that on November 22, 1999, before me,
the undersigned Notary Public, personally came and appeared ADA V.
WILSON, individually, who after being duly sworn declared that she
executed the foregoing Unwinding and Stock Exchange Agreement as
her free act and deed.
/s/ Mary Anne Mainord
X..............................
Notary Public
(SEAL)
EXHIBIT 10.1
STOCK ESCROW and SETTLEMENT AGREEMENT
Stock Escrow and Settlement Agreement, made this October 28,
1998, by and among
ISO BLOCK PRODUCTS USA, INC., a Colorado corporation
whose address is 8037 South Datura Street, Littleton, Colorado
80120 ("ISO");
BRASHER & COMPANY, attorneys at law, as Escrow Agent,
whose address is 90 Madison Street, Suite 707, Denver,
Colorado 80206 ("Escrow Agent"); and
JOHNNY M. WILSON, an individual residing in Colorado
("Wilson"), and ADA V. WILSON, an individual residing in
Missouri ("ADA"), collectively referred to below as the
"Wilsons".
The parties acknowledge and understand that:
A. The parties have entered into that certain UNWINDING
AND STOCK EXCHANGE AGREEMENT dated August 31, 1998
("Unwinding Agreement"), among the parties, Franchise Connection,
Inc., a Colorado corporation ("FCI"), Magna Dry LLC, a Colorado
limited liability company ("Magna Dry"), and certain persons who are
shareholders of ISO.
B. ISO is indebted to Mr. Hal Schatvet pursuant to a
promissory note dated December 1, 1997, in the principal amount of
$100,000.00 plus accrued interest (the "Schatvet Note"), borrowed by
ISO to provide operating capital to FCI and/or Magna Dry. Due to lack
of cash on hand and lack of operating income of ISO (and FCI and
Magna Dry), ISO currently is not in a position to repay the Schatvet
Note. After ISO's liquidation of certain real estate in Broomfield,
Colorado, the proceeds of which will be used to pay down the Schatvet
Note, it is estimated that ISO still will owe $75,000.00 or more under
the note. The principal amount owed Schatvet after such paydowns and
all interest accrued thereon are sometimes referred to below as the
"Shortfall Amount."
C. ISO, as tenant, entered into that certain Industrial Multi-Tenant
Lease dated January 20, 1998 (the "Office Lease"), with First
Industrial L.P., a Delaware limited partnership, as landlord (the
"Landlord"), with a 36-month term, which office space was leased for
the benefit of and has been exclusively occupied by FCI and/or Magna
Dry. ISO's current and future liabilities under the Office Lease are
hereinafter referred to as the "Office Lease Liabilities." The Shortfall
Amount and the Office Lease Liabilities are sometimes referred to
together herein as the "Liabilities."
D. ISO, the Wilsons and Escrow Agent now desire to create
an escrow and to enter into and consummate a transaction in which the
Wilsons will place into escrow for sale by Escrow Agent certain shares
of the common stock of ISO owned by the Wilsons, the proceeds of
which will be used to pay the Liabilities and provide for certain other
matters.
NOW THEREFORE, in consideration of the mutual promises,
covenants, representations and warranties set forth below, the parties
agree that:
1. Creation of Escrow; Deliveries. The Wilsons and Escrow
Agent hereby create an escrow as described below (the "Escrow"). On
the terms and subject to the conditions of this Agreement, the Wilsons
shall place in Escrow with Escrow Agent, and Escrow Agent agrees to
accept and hold in the Escrow, a total of 100,000 shares of ISO common
stock held by the Wilsons (the "Escrow Shares"). The purpose of the
Escrow is for the Escrow Agent to sell the Escrow Shares in order to
fully settle (or reduce, as the case may be) the Liabilities, as herein
described more fully. The Wilsons shall deliver to Escrow Agent one or
more certificates evidencing the Escrow Shares, together with the
following Escrow Items:
(a) for each certificate delivered, one (1) stock power signed
by the Wilsons with signature medallion guaranteed;
(b) for each certificate delivered, one (1) third-party release
signed by the Wilsons before a notary public;
(c) one (1) executed and notarized Power of Attorney in the
form of Exhibit A to this Agreement, empowering
Escrow Agent to take such steps as shall be necessary to
sell the Escrow Shares as contemplated in this
Agreement; and
(d) one (1) Form 144 properly completed and signed by the
Wilsons;
The Wilsons agree to execute and deliver upon Escrow Agent's
written request additional medallion guaranteed stock powers, notarized
third-party releases, notarized powers of attorney and Forms 144. The
Wilsons further agree to execute and deliver to Escrow Agent from time
to time upon Escrow Agent's written request such other instruments,
documents and certificates as Escrow Agent deems reasonably
necessary and as required by Escrow Agent's selling broker in order to
effect sales of Escrow Shares.
ISO shall deliver to Escrow Agent the written release of certain
loan liabilities in favor of Franchise Connection, Inc. as required by
Sections 2(e) and 12(a)(4) of the Unwinding Agreement (the
"Release").
Escrow Agent shall upon receiving the certificates evidencing
the Escrow Shares, the guaranteed stock powers, notarized third-party
releases, Power of Attorney and Release, hold such items in safekeeping
for disposition as called for under this Agreement. Nothing in this
Agreement or the Unwinding Agreement shall be deemed to confer
upon Escrow Agent any beneficial or personal interest or right in the
Escrow Shares.
2. Sale of the Escrow Shares. Escrow Agent hereby is
empowered to sell the Escrow Shares from time to time to pay against
and to use reasonable efforts to settle the Liabilities in full. Escrow
Agent is hereby authorized to do such things, included but not limited
to opening one or more brokerage accounts for the making of the sales,
and to execute such instruments, certificates and documents as may be
required in order to effect sales of the Escrow Shares. Once the Shortfall
Amount or Office Lease Liabilities is known, Escrow Agent may
commence to sell the Escrow Shares in open market or private
transactions, or both.
Escrow Agent shall from time to time promptly deliver the net
proceeds of each such sale directly to (i) Schatvet to cover the Shortfall
Amount, and (ii) to ISO or Landlord to cover the Office Lease
Liabilities. Escrow Agent shall obtain from Schatvet and ISO (or
Landlord, as the case may be) a receipt for each such payment. Escrow
Agent shall obtain from Schatvet and Landlord a general release upon
settlement in full of the Shortfall Amount and Office Lease Liabilities,
respectively, if settlement is effected. It shall be Escrow Agent's sole
discretion how to apportion the net proceeds between Schatvet and ISO
from each sale of the Escrow Shares, depending on the relative amounts
owed them and other relevant factors.
For purposes of this Agreement "net proceeds" means sale
proceeds less the selling broker's commissions and expenses and
Escrow Agent's services and expenses related to effecting the sale.
Interest, if any, earned on net proceeds of any sale shall be paid against
the Liabilities and after they are satisfied, to the Wilsons.
Notwithstanding any other provision of this Agreement, Escrow Agent
may, in determining the Shortfall Amount and the amount of the Office
Lease Liabilities owed as of the date of this Agreement and
subsequently, rely on the records of ISO and Schatvet, written
statements provided by Schatvet and the Landlord, the Schatvet Note
and Office Lease themselves, correspondence between such persons and
any other pertinent documentation. Escrow Agent may rely totally upon
the account statements of the selling broker of the Escrow Shares in
determining net proceeds.
3. Reports. Escrow Agent shall at least once each calendar
quarter make a report to the Wilsons and ISO reflecting Escrow Shares
sold, the price received, deductions made by the Escrow Agent and
amounts paid over to Mr. Schatvet. Escrow Agent shall to the best of
his knowledge promptly notify the Wilsons and ISO when the
Liabilities are satisfied in full. Promptly following termination of the
Escrow, Escrow Agent shall deliver to the Wilsons and ISO a final
written report reflecting all Escrow Shares sold, the price received,
deductions made by the Escrow Agent and amounts paid over to
Schatvet and Landlord.
4. No Reimbursement to the Wilsons. The Wilsons shall not
be entitled to demand or receive from ISO or any other person any
money, capital stock of ISO or other thing of value as recompense for
Escrow Shares sold under this Agreement. The Wilsons shall instead
treat the gross amounts realized from the sale of Escrow Shares but not
received by them as additions to their cost basis in the Escrow Shares
not sold by Escrow Agent; or if all the Escrow Shares are sold by
Escrow Agent, as additions to their cost basis in other common shares
of ISO owned by them. ISO and Wilson agree that the Wilsons shall
have no liability whatever for payment of the Liabilities other than
performing their obligations under this Agreement.
5. Termination of the Escrow. Once the Liabilities have been
settled in full or all Escrow Shares have been sold and the net proceeds
thereof paid against the Liabilities have not been sufficient to settle the
Liabilities in full, then in either event Escrow Agent shall promptly
terminate the Escrow. Upon termination, Escrow Agent shall return to
the Wilsons all unsold Escrow Shares, all Escrow Items and all net
proceeds from the sale of the Escrow Shares in excess of the Liabilities,
after deduction of Escrow Agent's reasonable expenses related to
termination and returns, copies of releases executed by Schatvet and
Landlord (if any) and the original of the ISO Release. Escrow Agent
shall deliver to ISO upon termination the originals of releases executed
by Schatvet and Landlord, if any, together with copies of all items
delivered to the Wilsons.
6. Resignation of Escrow Agent. Escrow Agent may
resign at any time without penalty or liability, and turn over all Escrow
Shares, Escrow Items and net proceeds in his possession to a successor
Escrow Agent chosen by agreement of ISO and the Wilsons, or to any
other person mutually agreeable to ISO and the Wilsons, in either case
as he is jointly instructed in writing by ISO and the Wilsons. After
resignation, Escrow Agent shall have no liability for failing to sell
Escrow Shares or do any other thing herein called for prior to his
delivery of the Escrow Shares and Escrow Items as instructed by ISO
and the Wilsons in this Section. An Escrow Agent's resignation shall
not terminate the Escrow unless the Wilsons and ISO agree in writing
to terminate the Escrow.
7. Fees and Expenses of the Escrow Agent. The Escrow
Agent shall be entitled to be paid a reasonable fee for his services and
to collect reimbursement for his expenses out of the sale of the Escrow
Shares.
8. Status of Escrow Agent. In performing his duties, Escrow
Agent shall not be deemed an agent or servant of ISO or the Wilsons.
Neither shall Escrow Agent be deemed a broker or dealer, as those
terms are defined under federal and applicable state securities laws. The
term "Escrow Agent" shall include all successors of Escrow Agent.
9. Liability of the Escrow Agent. In performing any of his
duties hereunder, the Escrow Agent shall not incur any liability to
anyone for any damages, losses or expenses, except for willful
misconduct or gross negligence and he shall, accordingly, not incur any
such liability with respect to:
(a) any action taken or omitted in good faith upon advice
of his counsel or counsel for ISO given with respect to any
questions relating to the duties and responsibilities of the Es-
crow Agent under this Agreement, or
(b) any action taken or omitted in reliance upon any
instrument, including the written advices provided for herein,
not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which the
Escrow Agent shall in good faith believe to be genuine, to have
been signed or presented by a proper person or persons, and to
conform with the provisions of this Agreement.
Escrow Agent shall use reasonable efforts to obtain a fair price
for the Escrow Shares, but shall have no liability to the Wilsons, ISO or
any other person(s) whatever based upon the price obtained in any sale
of the Escrow Shares, or the manner of making or timing of such sales.
Escrow Agent shall not under any circumstances be liable to the
Wilsons or ISO for damages of any kind whatsoever in the event
Escrow Agent overpays or underpays any of the Liabilities. Further,
Escrow Agent shall not be required to make up to ISO, Schatvet or any
other person whatsoever any underpayment of the Liabilities nor to
refund to the Wilsons any overpayment of the Liabilities. Schatvet and
Landlord are not third party beneficiaries of this Agreement, and
Escrow Agent shall not have any liability of any kind whatsoever to
Schatvet or Landlord, nor their respective successors, assigns or legal
representatives. Neither shall Escrow Agent have any liability of
any kind whatsoever to ISO or the Wilsons based on the amount or
terms of any settlement reached by Escrow Agent with Schatvet or
Landlord, except in the event of Escrow Agent's willful misconduct or
self-dealing.
10. Information and Indemnity. ISO and the Wilsons each
agree to provide to Escrow Agent all information necessary to facilitate
the administration of this Agreement, and Escrow Agent may rely upon
any representation so made. ISO and the Wilsons hereby agree to
indemnify and hold harmless the Escrow Agent against any and all
claims, losses, damages, liabilities, costs and expenses, including
reasonable costs of investigation and counsel fees and disbursements,
which may be imposed upon Escrow Agent or incurred by Escrow
Agent in connection with his acceptance of appointment as Escrow
Agent hereunder or the performance of his duties hereunder, including
any litigation arising from this Agreement or involving the subject
matter hereof. However, such indemnity shall not include acts or
omissions to act of Escrow Agent which involve gross negligence or
willful misconduct.
11. Interpleader. If at any time a dispute arises as to the duties
of Escrow Agent and the terms hereof, whether brought by a party to
this Agreement or a non-party, Escrow Agent may deposit the Escrow
Shares, Escrow Items and all net proceeds from the sale of Escrow
Shares with the Clerk of the District Court of Denver, State of Colorado
and may interplead the other parties hereto. Upon so depositing such
things and funds and filing its complaint in interpleader, Escrow Agent
shall be completely discharged and released from all further liability or
responsibility hereunder. The parties hereto, for themselves, their heirs,
successors and assigns, do hereby submit themselves to the jurisdiction
of said Court and do hereby appoint the Clerk of said Court as their
agent for service of all process in connection with any such
proceedings.
12. Notices; Orders of Court, Etc. Escrow Agent is hereby
expressly authorized and directed to disregard any and all notices or
warnings not specifically called for in or permitted by this Agreement,
or by any other person or entity not party to this Agreement, excepting
only orders or process of court, and is hereby expressly authorized to
comply with and obey any and all orders, judgments, or decrees of any
court, and in case Escrow Agent obeys or complies with any such order,
judgment, or decree of any court, it shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of
such compliance, notwithstanding that any such order, judgment, or
decree may be subsequently reversed, modified, annulled, set aside or
vacated, or found to have been entered without jurisdiction. Escrow
Agent assumes no responsibility for the validity or sufficiency of any
documents, papers or payments deposited or called for hereunder, nor
shall Escrow Agent have any duties or responsibilities, except as shall
be expressly set forth in this Agreement in unambiguous language.
13. Duties and Responsibilities of Escrow Agent. Escrow
Agent shall have no duty to know of or determine the performance or
non-performance of any provision of any agreement between the other
parties hereto or any other person or persons, and the original or any
copy of any such agreement given to Escrow Agent shall not bind him
in any manner. Escrow Agent assumes no responsibility for the validity
or sufficiency of any stock certificates, documents, papers or payments
deposited or called for hereunder, nor shall Escrow Agent have any
duties or responsibilities, except as shall be expressly set forth in this
Agreement in clear and unambiguous language.
14. Notices to Parties. All notices, demands or requests
required or authorized hereunder shall be deemed given sufficiently if
in writing and sent by registered mail or certified mail, return receipt
requested and postage prepaid, or by messenger or courier service to the
addresses shown below or any other addresses subsequently provided
in writing:
ISO: ISO BLOCK PRODUCTS USA, INC.
8037 South Datura Street
Littleton, Colorado 80120
ATTN: President
Wilson: 10691 East Bethany Drive, Suite 800
Aurora, Colorado 80014
ADA: 453 North Ingram
Sikeston, Missouri 63801
Escrow Agent: John D. Brasher, Jr., Esq.
90 Madison Street, Suite 707
Denver, Colorado 80206
ISO and the Wilsons shall at all times keep Escrow Agent
advised of their respective current addresses, telephone numbers and
facsimile numbers. Nothing in this Agreement shall obligate Escrow
Agent to use any efforts to find an address for ISO or the Wilsons if the
most recent address in Escrow Agent's is then no longer valid.
Any notice from Escrow Agent to the Wilsons or ISO which is
returned as undeliverable by the post office or which cannot be
delivered by a messenger service shall nonetheless be deemed delivered
for purposes of this Agreement, irrespective of when or if ISO or the
Wilsons, as the case may be, actually receives the notice. Escrow Agent
shall in such event have no liability whatsoever to ISO, the Wilsons or
any third party for not delivering notices, funds or anything else called
for by this Agreement.
15. Governing Law and Interpretation. The validity,
interpretation and construction of this Agreement and of each part
hereof shall be governed by the laws of the State of Colorado. This
Agreement shall be interpreted as if all parties participated equally in its
drafting. Section captions appear for convenience of reference only and
shall not be used in interpreting this Agreement.
16. Miscellaneous Matters. Any amendment or
modification to this Agreement must be in writing and executed by all
parties. The Unwinding Agreement is hereby incorporated by reference
as if fully set forth in this Agreement, except that in the event of any
conflict between the Unwinding Agreement and this Agreement, the
terms of this Agreement shall prevail. The definitions used in the
Unwinding Agreement shall have the same meanings when used in this
Agreement. This Agreement shall inure to the benefit of the parties and
their respective heirs, successors, assigns and legal representatives, but
no other person shall be deemed a third party beneficiary of this
Agreement or be entitled to claim any rights or benefits under this
Agreement or the Unwinding Agreement.
IN WITNESS WHEREOF, the Wilsons, ISO and Escrow
Agent have executed this Stock Escrow and Settlement Agreement and
initialed every preceding page effective as of the date first above
written.
ISO BLOCK PRODUCTS USA, INC. JOHNNY M. WILSON, Individually
/s/ Egin Bresnig /s/ Johnny M. Wilson
By............................... X..............................
Egin Bresnig, President Signature
BRASHER & COMPANY (Escrow Agent) ADA V. WILSON
/s/ John D. Brasher Jr. /s/ Ada V. Wilson
By.............................. X..............................
John D. Brasher Jr., Esq. Signature
Proprietor
NOTARIAL ACKNOWLEDGMENTS
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on October 29, 1999, before me, the
undersigned Notary Public, personally came and appeared EGIN
BRESNIG, President of ISO BLOCK PRODUCTS USA, INC., who
after being duly sworn declared that he executed the foregoing Stock
Escrow and Settlement Agreement as his free act and deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on October 29, 1999, before me, the
undersigned Notary Public, personally came and appeared JOHNNY
WILSON, who after being duly sworn declared that he executed the
foregoing Stock Escrow and Settlement Agreement as his free act and
deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that on October 29, 1999, before me, the
undersigned Notary Public, personally came and appeared JOHN D.
BRASHER JR., Proprietor of BRASHER & COMPANY, Attorneys at
Law, who after being duly sworn declared that he executed the
foregoing Stock Escrow and Settlement Agreement as his free act and
deed.
/s/ Jennifer S. Myers
X..............................
Notary Public
(SEAL)
NOTARIAL ACKNOWLEDGMENTS
STATE OF MISSOURI )
) ss.
COUNTY OF SCOTT )
I HEREBY CERTIFY that on November 22, 1999, before me,
the undersigned Notary Public, personally came and appeared ADA V.
WILSON, who after being duly sworn declared that she executed the
foregoing Stock Escrow and Settlement Agreement as her free act and
deed.
/s/ Mary Anne Mainord
X..............................
Notary Public
(SEAL)