SECURITIES AND EXCHANGE COMMISSION
Washington, D.C 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) MAY 26, 1999.
PIERCE INTERNATIONAL DISCOVERY, INC.
(Exact name of registrant as specified in charter.)
Nevada 33-30743 84-1121360
(State of (Commission File No.) (IRS Employer
Incorporation) Identification No.)
4220 West 2100 South, Suite I, Salt Lake City, Utah 89120
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (801) 978-9100
Note: Page 1 of 3 sequentially numbered pages.
ITEM 1. CHANGE IN CONTROL.
On May 26, 1999, the Company entered into an agreement for the
acquisition of all the equity of InShape International Merger Corporation
("InShape") in exchange for the issuance of four million (4,000,000) shares.
As a result of the Acquisition, the previous shareholders of the Subsidiary
became the majority shareholders of the Company. Those holding more than 5%
of the outstanding shares after the transaction are David Barton 702,500
shares, William Halls 572,500 shares, and George and Brenda Brimhall
625,000 shares.
In addition to the foregoing issuances, 3,000,000 shares were issued to
two members of management. Those shares are subject to divestment if certain
performance criteria are not met. Of these shares David Barton is entitled to
1,547,368 shares, and William Halls 1,452,632 shares. These shares are held
in a voting trust until certain performance criteria are met, or until
cancellation.
Additionally, pursuant to the acquisition Dave Barton and William Halls
were added to the Board of Directors and were appointed to the positions of
President and Executive Vice President respectively. David Barton has worked
for the past nine years in the direct marketing industry. He formed InShape
International, L.C. in 1995 to serve the premium personal care and direct
marketing industry. William Halls graduated from Brigham Young University
in 1981 with a Bachelor of Science degree in Finance. In 1984 he graduated
from the J. Reuben Clark Law School, Brigham Young University. He has
practiced law in both the corporate and private practice since that time.
He is a member of the Utah and California Bar Associations. In 1995 he joined
with David Barton to form InShape International.
ITEM 2. ACQUISITION OF DISPOSITION OF ASSETS.
On May 24, 1999 the Company entered into an agreement with shareholders
of InShape International Merger Corporation to acquire all of its outstanding
equity. As a result of the acquisition, InShape became a wholly-owned
subsidiary of the Company.
InShape is a Utah based company engaged in the business marketing vitamin
supplements and personal care items. The full line of vitamin supplements
include "HealthPak", "DeTox" and "VitalGuard." The Company also markets
personal care items such as facial wash, lotions and shampoos. InShape
currently has sales both domestically and internationally. For the first four
months ending April 30, 1999, the Company had approximately $1million in total
sales. Of that amount, approximately 97% was in international sales.
Currently, international sales consist of sales in the Philippines and Japan.
ITEM 5. OTHER EVENTS.
The Company recently changed its name from Pierce International
Discovery, Inc. recently changed its name to InShape International, Inc.
Additionally, the Company obtained a new trading CUSIP number and trading
symbol (ISGE).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: May 26, 1999
Pierce International Discovery, Inc.
By: /s/ David Barton
David Barton, President
ACQUISITION AGREEMENT
This Agreement is entered into by, between and among Pierce International
Discovery, Inc., a corporation organized under the laws of the State of Nevada
(hereinafter the "Purchaser"), and the equity owners ("the Shareholders") of
InShape International Merger Corporation, a Utah company (hereinafter "the
Company").
WITNESSETH:
WHEREAS, Purchaser wishes to acquire, and Shareholders are willing to
sell, all of the outstanding equity ownership of the Company in exchange for
common stock of the Purchaser;
NOW, THEREFORE, in consideration of the mutual terms and covenants set
forth herein, Purchaser and Shareholders approve and adopt this Acquisition
Agreement and mutually covenant and agree with each other as follows:
ARTICLE I
SHARES TO BE TRANSFERRED AND SHARES TO BE ISSUED
1. a. On the closing date the Shareholders shall transfer to Purchaser
certificates representing the equity of the Company described in Schedule "A" ,
attached hereto and incorporated herein, which in the aggregate shall
represent all of the issued and outstanding Shares of the Company. Such
certificates shall be duly endorsed in blank by Shareholders or accompanied by
duly executed certificate powers in blank with signatures guaranteed.
Alternatively, the Shareholders may assign their rights to the Shares if the
Shares have not been physically issued in the form of certificates.
b. In exchange for the transfer of the equity of the Company pursuant to
sub-section 1.a. hereof, Purchaser shall on the closing date and
contemporaneously with such transfer of the equity of the Company to it by the
Shareholders, or rights thereto, issue and deliver to the Shareholders
4,000,000 of Shares of the Purchaser in accordance with Schedule "B" hereof.
2. The parties intend that this acquisition and exchange of equity is to be
an exchange/transaction pursuant to Section 368(a)(1)(b) of the Internal Revenue
Code of the United States.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
2.01 Ownership of Equity.
Shareholders are the record owners and holders of the number of
fully paid and non-assessable Shares of the Company listed in Schedule "A"
hereto as of the date hereof and will continue to own such Shares of the
Company until the delivery thereof to the Purchaser on the closing date and
all such Shares are or will be on the closing date owned free and clear of all
liens, encumbrances, charges and assessments of every nature and subject to
no restrictions with respect to transferability. The Shareholders
will have full power and authority to assign and transfer their Shares of the
Company in accordance with the terms hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND ITS SHAREHOLDERS
3.01 Capitalization
Except for this Agreement, there are no outstanding options, contracts,
calls, commitments, agreements or demands of any character relating to the
Shares of the Company owned by its Shareholders.
3.02 Organization and Authority.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Utah, with all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted, is duly qualified and in good
standing in every jurisdiction in which the property owned, leased or
operated by it, or the nature of the business conducted by it, makes such
qualification necessary to avoid material liability or material interference
in its business operations, and is not subject to any agreement, commitment or
understanding which restricts or may restrict the conduct of its business in
any jurisdiction or location.
(b) The outstanding Shares of the Company are legally and validly
issued, fully paid and non-assessable.
(c) Except for one hundred percent ownership of InShape Pacific
Network K.K.,a Japanese corporation, and InShape Pacific Rim, Inc., a
Philippines corporation, the Company does not own five percent (5%) or more of
the outstanding stock of any corporation.
(d) The minute book of the Company made available to Purchaser
contains complete and accurate records of all meetings and other corporate
actions of the Shareholders and the Managers (and any committee thereof) of
the Company.
(e) The Disclosure Statement contains a list of the directors,
officers, and Shareholders of Company and copies of the Articles of
Incorporation and Bylaws currently in effect of the Company.
(f) The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated hereby will not, subject to the
approval and adoption by the Shareholders of the Company, violate any
provision of the certificate/articles of incorporation or bylaws of the
Company, or any provisions thereof, or result in the acceleration of any
obligation under, any mortgage, lien, lease, agreement, instrument, court
order, arbitration award, judgment or decree to which the Company is a party,
or by which it is bound, and will not violate any other restriction of any
kind or character to which it is subject.
(g) The authorized capital of the Company is 10,000,000 shares of
stock, of which 4,000,000 shares shall be outstanding at the time of the
acquisition.
3.03 Financials.
(a) A balance sheet, list of assets, and list of payables and
receivables (hereafter "financial statements") of the Company have been
delivered by Company to the Purchaser. Said financial statements are true and
correct in all material respects and present an accurate and complete
disclosure of the financial condition of the Company as of its date and for
the periods covered.
(b) All accounts receivable, if any, (net of reserves for doubtful
accounts) of the Company shown on the books of account on the statement date
and as incurred in the normal course of business since that date, are
collectible in the normal course of business.
(c) The Company has good and marketable title to all of its assets,
business and properties including, without limitation, all such properties
reflected in the balance sheet as of the statement date except as disposed of
in the normal course of business, free and clear of any mortgage, lien, pledge,
charge, claim or encumbrance, except as shown on said balance sheet as of the
statement date and, in the case of real properties except for rights-of-
way and easements which do not adversely affect the use of such property.
(d) All currently used property and assets of the Company, or in
which it has an interest, or which it has in possession, are in good operating
condition and repair subject only to ordinary wear and tear.
3.04 Changes Since the Statement Date. Since the financial statement
date, except as disclosed in the Disclosure Statement, there will not have
been any material negative change in the financial position or assets of the
Company.
3.05 Liabilities. There are no material liabilities of the Company,
whether accrued, absolute, contingent or otherwise, which arose or relate to
any transaction of the Company, its agents or servants occurring prior to the
statement date, which are not disclosed by or reflected in said financial
statements, except as disclosed in the Disclosure Statement. There are no
such liabilities of the Company which have arisen or relate to any
transaction of the Company, its agents or servants, occurring since the
statement date, other than normal liabilities incurred in the normal conduct
of the business of the Company, and none of which have a material adverse
effect on the business or financial condition of the Company, except as
disclosed in the Disclosure Statement. As of the date hereof, there are no
known circumstances, conditions, happenings, events or arrangements,
contractual or otherwise, which may hereafter give rise to liabilities, except
in the normal course of business of the Company, except as disclosed in the
Disclosure Statement.
3.06 Taxes. All federal, province, county and local income, ad valorem,
excise, profits, franchise, occupation, property, sales, use gross receipts
and other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by the Company, and there are no unpaid taxes which are,
or could become a lien on the properties and assets of the Company, except as
provided for in the financial statements of their date, or have been
incurred in the normal course of business of the Company since that date.
All tax returns of any kind required to be filed have been filed and the taxes
paid or accrued.
3.07 Accuracy of All Statements Made by The Company. No representation or
warranty by the Company and Shareholders in this Agreement, nor any
statement, certificate, schedule or exhibit hereto furnished or to be
furnished by or on behalf of the Shareholders pursuant to this Agreement, nor
any document or certificate delivered to Purchaser pursuant to this Agreement
or in connection with actions contemplated hereby, contains or shall contain
any untrue statement of material fact or omits or shall omit a material fact
necessary to make the statement contained therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants as follows:
4.01 Organization and Authority.
The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada, with full power and
authority to enter into and perform the transactions contemplated by this
Agreement, and with all requisite corporate power and authority to own,
operate and lease its properties and to carry on its business as now being
conducted, is duly qualified and in good standing in every jurisdiction in which
the property owned, leased or operated by it, or the nature of the business
conducted by it, makes such qualification necessary to avoid material
liability or material interference in its business operations, and is not
subject to any agreement, commitment or understanding which restricts or may
restrict the conduct of its business in any jurisdiction or location.
(a) The outstanding Shares of the Purchaser are legally and validly
issued, fully paid and non-assessable.
(b) The Purchaser does not own five percent (5%) or more of the
outstanding stock of any corporation, except as listed on the Disclosure
Statement.
(c) The minute book of the Purchaser made available to the Company
and Shareholders contains complete and accurate records of all meetings and
other corporate actions of the shareholders and the Board of Directors (and
any committee thereof) of the Purchaser.
(d) The Disclosure Statement contains a list of the officers,
directors and shareholders of the Purchaser and copies of the articles of
incorporation and by-laws currently in effect of the Purchaser.
(e) The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated hereby will not violate any
provision of the certificate/articles of incorporation or bylaws of the
Purchaser, or any provisions thereof, or result in the acceleration of any
obligation under, any mortgage, lien, lease, agreement, instrument, court
order, arbitration award, judgment or decree to which the Purchaser is a
party, or by which it is bound, and will not violate any other restriction of
any kind or character to which it is subject.
(f) The authorized capital stock of the Purchaser is seven hundred
and fifty million (750,000,000) shares of common stock, $.001 par value, of
which three million (3,000,000) shares of such stock will be issued and
outstanding at the time of closing (exclusive of the shares issued pursuant
to the acquisition).
4.02 Performance of This Agreement. The execution and performance of this
Agreement and the issuance of stock contemplated hereby have been authorized
by the board of directors of Purchaser.
4.03 Financials.
(a) True copies of the financial statements of the Purchaser as of
June 30, 1998 have been completed and delivered by the Purchaser to the
Company. These statements have been examined and certified by certified
public accountants. Interim financial statements for the periods ended
September 30, 1998, December 31, 1998, and March 30, 1999 have also been
provided. Said financial statements are true and correct in all material
respects and present an accurate and complete disclosure of the financial
condition and earnings of the Purchaser for the periods covered, in accordance
with generally accepted accounting principles applied on a consistent basis.
(b) All accounts receivable, if any, (net of reserves for doubtful
accounts) of the Purchaser shown on financial statement, and as incurred in
the normal course of business since that date, are collectible in the normal
course of business.
(c) The Purchaser has good and marketable title to all of its
assets, business and properties including, without limitation, all such
properties reflected in the aforementioned balance sheet, except as disposed
of in the normal course of business, free and clear of any mortgage, lien,
pledge, charge, claim or encumbrance, except as shown on said balance sheet,
and, in the case of real properties, except for rights-of-way and easements
which do not adversely affect the use of such property.
4.04 Changes Since Audit Date. Since the date of the financial
statements, except as disclosed in writing, there has not been any material
change in the financial position or assets of the Purchaser.
4.05 Accuracy of All Statements Made by Purchaser. No representation or
warranty by the Purchaser in this Agreement, nor any statement, certificate,
schedule or exhibit hereto furnished or to be furnished by the Purchaser
pursuant to this Agreement, nor any document or certificate delivered to the
Company or the Shareholders pursuant to this Agreement or in connection with
actions contemplated hereby, contains or shall contain any untrue statement of
material fact or omits or shall omit a material fact necessary to make the
statement contained therein not misleading.
4.06 Legality of Shares to be Issued. The shares of common stock of
Purchaser to be delivered pursuant to this Agreement, when so delivered, will
have been duly and validly authorized and issued by Purchaser and will be
fully paid and nonassessable.
4.07 No Covenant as to Tax Consequences. It is expressly understood and
agreed that neither Purchaser nor its officers or agents has made any warranty
or agreement, expressed or implied, as to the tax consequences of the
transactions contemplated by this Agreement or the tax consequences of any
action pursuant to or growing out of this Agreement.
4.08 Securities Matters. The Purchaser is not aware of any formal or
informal investigation of the Purchaser or its securities by any governmental
or non-governmental regulatory agency.
ARTICLE V
COVENANTS OF SHAREHOLDERS
5.01 Access to Information. Purchaser and its authorized representatives
shall have full access during normal business hours to all properties, books,
records, contracts and documents of the Company, and the Company shall furnish
or cause to be furnished to Purchaser and its authorized representative all
information with respect to its affairs and business of the Company as
Purchaser may reasonably request.
5.02 Actions Prior to Closing. From and after the date of this Agreement
and until the closing date, the Company shall not materially alter its business.
5.03 Limitation of Subsequent Corporate Actions. It is expressly
understood and agreed that the Company, the Shareholders, and their
affiliates, will take all steps necessary to ensure that for a period of
eighteen months:
A) there shall be no reverse split and that the assets of the
Company shall remain in the Company as part of its business operations;
B) that the Company will not issue shares for any consideration
less than $1 per share.
ARTICLE VI
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
Each and every obligation of Purchaser to be performed on the closing
date shall be subject to the satisfaction of the Purchaser of the following
conditions:
6.01 Truth of Representations and Warranties. The representations and
warranties made by the Company and Shareholders in this Agreement or given on
its behalf hereunder shall be substantially accurate in all material respects
on and as of the closing date with thesame effect as though such
representations and warranties had been made or given on and as of the
closing date.
6.02 Compliance with Covenants. Shareholders shall have performed and
complied with all obligations under this Agreement which are to be performed or
complied with by them prior to or on the closing date, including the delivery
of the closing documents specified hereafter.
6.03 Absence of Suit. No action, suit or proceedings before any court or
any governmental or regulatory authority shall have been commenced or threatened
and, no investigation by any governmental or regulatory authority shall have
been commenced, against the Shareholders, the Company or any of the affiliates,
associates, officers or directors of any of them, seeking to restrain, prevent
or change the transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any
of such transactions.
6.04 Receipt of Approvals, Etc. All approvals, consents and/or waivers
that are necessary to effect the transactions contemplated hereby shall have
been received.
6.05 No Material Adverse Change. As of the closing date there shall not
have occurred any material adverse change which materially impairs the ability
of the Company to conduct its business or the earning power thereof on the
same basis as in the past.
6.06 Accuracy of Financial Statement. Purchaser and its representatives
shall be satisfied as to the accuracy of all balance sheets, statements of
income and other financial statements of the Company furnished to Purchaser
herewith.
6.07 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as Purchaser may request shall have
been delivered to Purchaser. The Company and the Shareholders
shall have delivered certificates in such detail as Purchaser may request as
to compliance with the conditions set forth in this Article.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY AND SHAREHOLDERS
Each and every obligation of the Company and Shareholders to be performed
on the closing date shall be subject to the satisfaction prior thereto of the
following conditions:
7.01 Truth of Representations and Warranties. The representations and
warranties of Purchaser contained in this Agreement shall be true at and as of
the closing date as though such representations and warranties were made at
and as of the transfer date.
7.02 Purchaser's Compliance with Covenants. Purchaser shall have
performed and complied with its obligations under this Agreement which are to
be performed or complied with by it prior to or on the closing date.
7.03 Absence of Suit. No action, suit or proceedings before any court or
any governmental or regulatory authority shall have been commenced or threatened
and, no investigation by any governmental or regulatory authority shall have
been commenced against Purchaser, or any of the affiliates, associates,
officers or directors of the Purchaser seeking to restrain, prevent or change
the transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any
of such transactions.
7.04 Receipt of Approvals, Etc. All approvals, consents and/or waivers
that are necessary to effect the transactions contemplated hereby shall have
been received.
7.05 No Material Adverse Change. As of the closing date there shall not
have occurred any material adverse change which materially impairs the
ability of the Purchaser to conduct its business or the earning power thereof
on the same basis as in the past.
7.06 Accuracy of Financial Statements. The Company and the Shareholders
shall be satisfied as to the accuracy of all balance sheets, statements of
income and other financial statements of the Purchaser furnished to the
Company herewith.
7.07 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as the Company may request shall have
been delivered to the Company. The Purchaser shall have delivered
certificates in such detail as the Shareholders may request as to
compliance with the conditions set forth in this Article.
ARTICLE VIII
INDEMNIFICATION
The Company shall indemnify Purchaser for any loss, cost, expense or
other damage suffered by Purchaser resulting from, arising out of, or
incurred with respect to the falsity or the breach of any representation,
warranty or covenant made by the Company herein, and any claims arising from
the operations of the Company prior to the closing date. Purchaser shall
indemnify and hold the Company and Shareholders harmless from and
against any loss, cost, expense or other damage (including, without
limitation, attorneys' fees and expenses) resulting from, arising out of, or
incurred with respect to, or alleged to result from, arise out of or have
been incurred with respect to, the falsity or the breach of any representation,
covenant, warranty or agreement made by Purchaser herein.
ARTICLE IX
SECURITY ACT PROVISIONS
9.1 Restrictions on Disposition of Shares. Shareholders covenant and
warrant that the shares received are acquired for their own accounts and not
with the present view towards the distribution thereof and will not dispose of
such shares except (i) pursuant to an effective registration statement under
the Securities Act of 1933, as amended, or (ii) in any other transaction
which, in the opinion of counsel, acceptable to Purchaser, is exempt from
registration under the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. In order to
effectuate the covenants of this sub-section, an appropriate endorsement will
be placed upon each of the certificates of common stock of the Purchaser at
the time of distribution of such shares pursuant to this Agreement, and stop
transfer instructions shall be placed with the transfer agent for the
securities.
9.02 Notice of Limitation Upon Disposition. Each Shareholder is
aware that the shares distributed pursuant to this Agreement will not have
been registered pursuant to the Securities Act of 1933, as amended; and,
therefore, under current interpretations and applicable rules, the shareholder
will probably have to retain such shares for a period of at least one year
and at the expiration of such one year period sales may be confined to
brokerage transactions of limited amounts requiring certain notification
filings with the Securities and Exchange Commission and such disposition may
be available only if the Purchaser is current in its filings with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, or other public disclosure requirements, and the other limitations
imposed thereby on the disposition of shares of the Purchaser. Additionally,
"affiliates" owning shares will be subject to additional restrictions limiting
sales.
9.03 Limited Public Market for Common Shares. Each Shareholder
acknowledges that the common shares being issued pursuant to this agreement
currently has a limited public market in which the shares may be liquidated
and there is no assurance that such pubic market will grow or develop.
ARTICLE X
CLOSING
10.01 Time. The closing of this transaction ("closing") shall be
effective May 26, 1999. Such date is referred to in this agreement as the
"closing date." Provided, however, that additional documents necessary to
complete the transaction may be executed and provided subsequent to the
closing date.
10.02 Documents To Be Delivered by Shareholders. At the closing
Shareholders shall deliver to Purchaser the following documents:
(a) Certificates or assignments for all Shares of ownership of the
Company in the manner and form required by sub-section 1.01 hereof.
(b) A certificate signed by the Management of the Company that the
representations and warranties made by the Company in this Agreement are true
and correct on and as of the closing date with the same effect as though such
representations and warranties had been made on or given on and as of the
closing date and that Shareholders have performed and complied with all of
their obligations under this Agreement which are to be performed or complied
with by or prior to or on the closing date.
(c) A copy of the Bylaws of the Company certified by its secretary
and a copy of the Articles of Incorporation of the Company certified by the
secretary of state.
(d) Certificates or letters from Shareholders evidencing the taking
of the shares in accordance with the provisions of this agreement and their
understanding of the restrictions thereunder.
(e) Such other documents of transfer, certificates of authority
and other documents as Purchaser may reasonably request.
10.03 Documents To Be Delivered by Purchaser. At the closing
Purchaser shall deliver to Shareholders the following documents:
(a) Certificates for the number of shares of common stock of
Purchaser as determined in Article 1 hereof.
(b) A certified copy of the duly adopted resolutions of the Board of
Directors of Purchaser authorizing or ratifying the execution and performance
of this Agreement and authorizing or ratifying the acts of its officers and
employees in carrying out the terms and provisions thereof.
ARTICLE XI
TERMINATION AND ABANDONMENT
This Agreement may be terminated and the transaction provided for by this
Agreement may be abandoned without liability on the part of any part to any
other, at any time before the closing date, or on a post closing basis as
provided previously herein:
(a) By mutual consent of Purchaser, the Company and the Shareholders;
(b) By Purchaser if any of the conditions provided for in Article 6
of this Agreement have not been met and have not been waived in writing by
Purchaser.
(c) By the Company if any of the conditions provided for in Article
7 of this Agreement have not been met and have not been waived in writing by
the Company.
In the event of termination and abandonment by any party as above
provided in this Article, written notice shall forthwith be given to the other
party, and each party shall pay its own expenses incident to preparation for
the consummation of this Agreement and the transactions contemplated hereunder.
ARTICLE XII
MISCELLANEOUS
12.01 Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given, if delivered
by hand or mailed, certified or registered mail with postage prepaid:
(a) If to The Company, Inc., or its Shareholders, to William Halls
at 4220 West 2100 South, Salt Lake City, Utah 84120, or to such other person
and place as the Company and its Shareholders shall furnish to Purchaser in
writing
(b) If to Purchaser, to Nathan W. Drage at 6975 South Union Park
Center, Suite 600, Salt Lake City, Utah 84047, or to such other person and
place as Purchaser shall furnish to Company in writing.
12.02 Announcements. Announcements concerning the transactions
provided for in this Agreement by either the Company or Purchaser shall be
subject to the approval of the other in all essential respects, except that
the approval of the Company shall not be required as to any statements and
other information which Purchaser may submit to its shareholders.
12.03 Default. Should any party to this Agreement default in any of
the covenants, conditions, or promises contained herein, the defaulting party
shall pay all costs and expenses, including a reasonable attorney's fee, which
may arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by the statutes of the State of Utah, United States of
America.
12.04 Assignment. This Agreement may not be assigned in whole or in
part by the parties hereto without the prior written consent of the other
party or parties, which consent shall not be unreasonably withheld.
12.05 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their successors and
assigns.
12.06 Holidays. If any obligation or act required to be performed
hereunder shall fall due on a Saturday, Sunday or other day which is a legal
holiday established by the State of Utah, such obligation or act may be
performed on the next succeeding business day with the same effect as if it
had been performed upon the day appointed.
12.07 Computation of Time. The time in which any obligation or act
provided by this Agreement is to be performed is computed by excluding the
first day and including the last, unless the last day is a holiday, in which
event such day shall also be excluded.
12.08 Governing Law and Venue. This Agreement shall be governed by and
interpreted pursuant to the laws of the Sate of Utah. Any action to enforce
the provisions of this Agreement shall be brought in a court of competent
jurisdiction within the State of Utah and in no other place.
12.09 Partial Invalidity. If any term, covenant, condition or
provision of this Agreement or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this Agreement or application of such term or provision to persons or
circumstances other than those as to which it is held to be invalid or
unenforceable shall not be affected thereby and each term, covenant, condition
or provision of this Agreement shall be valid and shall be enforceable to the
fullest extent permitted by law.
12.10 No Other Agreements. This Agreement constitutes the entire
Agreement between the parties and there are and will be no oral
representations which will be binding upon any of the parties hereto.
12.11 Rights are Cumulative. The rights and remedies granted
hereunder shall be in addition to and cumulative of any other rights or
remedies provided under the laws of the State of Utah.
12.12 Waiver. No delay or failure in the exercise of any power or
right shall operate as a waiver thereof or as an acquiescence in default. No
single or partial exercise of any power or right hereunder shall preclude any
other or further exercise thereof or the exercise of any other power or right.
12.13 Survival of Covenants, Etc. All covenants, representations,
and warranties made herein to any parties or in any statement or document
delivered to any party hereto, shall survive the making of this Agreement and
shall remain in full force and effect until the obligations of such party
hereunder have been fully satisfied.
12.14 Further Action. The parties hereto agree to execute and
deliver such additional documents and to take such other and further action as
may be required to carry out fully the transaction(s) contemplated herein.
12.15 Amendment. This Agreement or any provision hereof may not be
changed, waived, terminated or discharged except by means of a written
supplemental instrument signed by the party or parties against whom
enforcement of the change, waiver, termination ,or discharge is sought.
12.16 Headings. The descriptive headings of the various Sections or
parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
12.17 Counterparts. This agreement may be executed in two or more
partially or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument, provided that Purchaser shall have
no obligations hereunder until all Shareholders have become signatories hereto.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Acquisition
Agreement effective the 26th day of May, 1999.
PIERCE INTERNATIONAL DISCOVERY, INC.
By /s/ Robert Kropf
Robert Kropf, President
Company: INSHAPE INTERNATIONAL MERGER CORPORATION
By /s/ David Barton
David Barton, Chairman
Shareholders:
____________________________ ________________________
George W. Brimhall David H. Barton
Brenda Brimhall William C. Halls
Gary Smith WWH Investments Ltd.
By William W. Halls, G.P.
Helen Smith J. Michael Martin
C. Wyn Bowman Lee Jackson Investments
Dee Ann Bowman Action Investments
Charles W. Hanna IP, L.L.C.
SCHEDULE A
Name Shares To Be Purchased
George and Brenda Brimhall 626,043
Gary and Helen Smith 425,710
J. Michael Martin 175,293
WWH Investments Ltd. 350,584
C. Wyn Bowman 50,083
Dee Ann Bowman 50,083
Charles W. Hanna 50,083
David Barton 701,169
William C. Halls 570,952
Lee Jackson Investment 333,333
Action Investments 333,333
IP, LLC 333,333
Total 4,000,000
SCHEDULE B
Name Shares To Be Issued
George and Brenda Brimhall 626,043
Gary and Helen Smith 425,710
J. Michael Martin 175,293
WWH Investments Ltd. 350,584
C. Wyn Bowman 50,083
Dee Ann Bowman 50,083
Charles W. Hanna 50,083
David Barton 701,169
William C. Halls 570,952
Lee Jackson Investment 333,333
Action Investments 333,333
IP, LLC 333,333
Total 4,000,000