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EXHIBIT 10.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization is entered into as
of this 27th day of October, 1999, by and among N.E.C. Properties, Inc., 6767 W.
Tropicana Avenue, Suite 207, Las Vegas, Nevada 89103, a Nevada corporation,
(hereinafter "NECD" or "Acquiror") and March Indy International, Inc., 280
Madison Avenue, Suite 800, New York, New York 10016, a Delaware corporation,
(hereinafter "MAIN" or Acquiree); Tom Megas ("Megas") and Peter Voller
("Voller", each of Megas and Voller is sometimes referred to herein individually
as a "Seller" and sometimes collectively as "Sellers").
RECITALS
MAIN plans to reenter the Indy Racing Programme and further
expand the business to offer its licensed Indy Programme consumer products,
including upscale clothing, personal items and related products; and
NECD is a reporting public company under the Securities and
Exchange Act of 1934, as amended, (the "Exchange Act"), whose common stock is
traded in the over-the-counter market and prices for the common stock are quoted
on the OTC Bulletin Board under the symbol NECD. NECD is not engaged in any
significant operations other than the search for, identification and evaluation
of possible acquisition candidates.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties, intending
to be legally bound hereby agree as follows.
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AGREEMENT
ARTICLE 1
PLAN OF REORGANIZATION; EXCHANGE OF SHARES
1.1 PLAN OF REORGANIZATION. Sellers are the owners of all of
the issued and outstanding common stock of Acquiree Corporation. It is the
intention of the parties hereto that all of the issued and outstanding shares of
capital stock of the Acquiree Corporation shall be acquired by Acquiror in
exchange solely for shares of Acquiror's common stock ("Common Stock"). It is
the further intention of the parties hereto that this entire transaction qualify
as a tax-free exchange under Section 368 of the Internal Revenue Code of 1986,
as amended (the "Code").
1.2 EXCHANGE OF SHARES. Acquiror and Sellers agree that all of
the issued and outstanding capital stock of the Acquiree Corporation owned by
Sellers shall be exchanged at Closing (as hereinafter defined) for 7,706,575
shares of Acquiror's Common Stock which will be allocated among the Sellers as
shall be designated by Sellers not later than five (5) business days prior to
the Closing. The shares of Acquiror's Common Stock to be received as a result of
the exchange are sometimes referred to as the "Acquiror Shares".
(a) The Acquiror Shares will be delivered to
Sellers on the Closing Date (as hereinafter defined) in exchange for the shares
of the Acquiree Corporation owned by them. Sellers agree that they will hold
such Acquiror Shares for investment purposes and not for public distribution and
agree that the Acquiror Shares shall be "restricted shares", as that term is
defined in Rule 144 of the Rules and Regulations of the Securities Act of 1933,
as amended (the "Securities Act").
(b) Unless and until the Acquiror Shares are
registered under the Securities Act, or until the restrictions under Rule 144
lapse, no Seller shall be entitled to transfer
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all or any of the Acquiror Shares to any person or party, unless the Seller
first provides NECD with an opinion of counsel reasonably acceptable to NECD
that the proposed transfer is exempt from registration under the Securities Act
and other applicable securities laws. NECD shall be entitled to place a
restrictive legend on all certificates evidencing ownership of the Acquiror
Shares that provides notice of the provisions of this Section 1.2(b) and other
applicable provisions of this Agreement. Such legend shall be substantially in
the form set forth on Appendix A attached hereto.
1.3 CLOSING. Consummation of the transactions contemplated in
this Agreement (the "Closing") will occur at 2:00 p.m. on November 10, 1999 (the
"Closing Date"), and shall take place at the offices of Foreht Last Landau &
Katz, LLP, 415 Madison Avenue, 16th Floor, New York, New York or at such other
time and location as is mutually agreeable to each of the parties.
ARTICLE 2
DELIVERIES BY NECD AT THE CLOSING
2.1 DELIVERIES BY NECD. In addition to all other items
required to be delivered by NECD at the Closing under this Agreement, NECD shall
deliver all of the following items to Sellers:
(a) the Acquiror Shares by delivery to Sellers of one or more
share certificates (in such denominations as shall be specified by the Sellers)
evidencing ownership thereof in the name of each Seller; each such certificate
to bear a restrictive legend as provided for in Section 1.2(b) herein;
(b) a certified copy of NECD's articles of incorporation, as
amended, as filed with the Secretary of State of Nevada, together with a
certificate of NECD's Secretary, confirming that the Common Stock has been duly
issued as required in this Agreement;
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(c) a current Certificate of Good Standing of NECD, issued by
the Secretary of State of Nevada;
(d) all of the corporate records of NECD including, without
limitation, the following: Certified copies of NECD's bylaws (as amended through
the Closing Date), complete minute books and a copy of NECD's stockholders
ledger as of a date 5 days before the Closing Date;
(e) (i) a quarterly financial statement (unaudited and in the
format of a Form 10-QSB) dated as of September 30, 1999, and prepared by NECD's
Chief Financial Officer or accountant in accordance with generally accepted
accounting principles consistently applied in form and substance reasonably
acceptable to the Sellers; (ii) a true, correct and complete copy of Form 10-SB
12G filed by NECD with the Securities and Exchange Commission (the "SEC"); (iii)
a copy of NECD's Form 10-QSB for the period ended September 30, 1999; and (iv) a
certificate from the President of NECD confirming that there has been no
material adverse change in business assets, property or condition (financial or
otherwise) of NECD since December 31, 1998;
(f) certificates of the Secretary and the President of NECD
verifying the accuracy of all corporate records, financial records, other
materials, or documents of NECD delivered or provided by NECD at or prior to the
Closing, and confirming the accuracy and truthfulness on the Closing Date of all
representations and warranties of NECD contained herein;
(g) resignations of all officers and of all members of the
board of directors of NECD, and election in their place and stead, of nominees
designated by Sellers, effective as of the Closing;
(h) certified copies of resolutions of the board of directors
of NECD authorizing execution, delivery and performance of this Agreement and
all agreements, documents, certificates
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of stock and other items to be delivered by NECD pursuant to this Agreement and
in connection with the consummation of the transactions that are contemplated
herein;
(i) a legal opinion of NECD's counsel addressed to the Sellers
in form and substance mutually agreeable to the Sellers;
(j) copies of all contracts, loan agreements, memoranda and
other documents or instruments (involving or potentially involving $2,500 or
more) to which NECD is a party or by which it is bound or to which it or any of
its assets is subject; and
(k) such other documents and instruments as may be
reasonably requested by the Sellers.
2.2 OTHER DOCUMENTS AND INSTRUMENTS. It shall also be a
condition of the Closing that NECD shall also deliver any and all such other
documents and instruments of conveyance, assignment and transfer, and other
items, as may be reasonably requested or necessary in order to vest good and
marketable title to the Acquiror Shares in and to the Sellers, on the Closing
Date. All instruments and other documents or instruments exchanged by the
parties shall be in form as needed to effectuate the transactions contemplated
by this Agreement or to evidence the same, and shall include any third party
consents to the transactions contemplated herein that may be required by the
provisions of any contracts, agreements or obligations to which NECD is a party,
or by which NECD or any of its properties and assets are bound, or pursuant to
which a change in the stock ownership of NECD is deemed to constitute an
assignment or transfer requiring such consent or approval. These additional
conveyances and transfers shall place the Sellers, on the Closing Date in actual
possession and in full and complete ownership of the Acquiror Shares as provided
herein.
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ARTICLE 3
DELIVERIES BY THE SELLERS AT THE CLOSING
3.1 DELIVERIES BY THE SELLERS. In addition to all other items
required to be delivered by the Sellers at the Closing under this Agreement, at
the Closing the Sellers shall deliver all of the following items to NECD:
(a) 100% of the outstanding capital stock of MAIN, by delivery
to NECD of one or more share certificates evidencing ownership of the stock of
said corporation, endorsed by Sellers, or with duly executed blank stock powers
signed by Sellers with such signatures guaranteed;
(b) certified copies of the Acquiree Corporation's articles of
incorporation, together with an officers certificate that the stock of MAIN has
been duly transferred on the books and records, and in the stock transfer
ledgers of such corporation, as required in this Agreement;
(c) a current Certificate of Good Standing of the Acquiree
Corporation, issued by the Secretary of the State of Delaware as well as by the
Secretary of the State of any other jurisdiction in which the Acquiree
Corporation is authorized to conduct business;
(d) corporate records of the Acquiree Corporation consisting
of at least the following: copies of the Acquiree Corporations' bylaws, complete
minute books and a copy of the Acquiree Corporation's stock transfer ledger;
(e) a balance sheet of the Acquiree Corporation dated as of
December 31, 1998 prepared by the controller or accountant of the Acquiree
Corporation in accordance with generally accepted accounting principals
consistently applied;
(f) certificates of the Secretary and the Vice President or
the President of the Acquiree Corporation verifying the accuracy and
authenticity of all corporate records, financial statements, other materials,
disclosures or documents pertaining to the Acquiree Corporation delivered or
provided by the Sellers at the Closing, and confirming the accuracy on the
Closing Date
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of all representations and warranties of the Sellers and the Acquiree
Corporation as contained herein and that with respect to financial statements
there are no material adverse changes since December 31, 1998;
(g) certified copies of resolutions of the board of directors
and shareholders of MAIN authorizing execution and delivery of this Agreement by
such corporation and consummation of all of the transactions that are
contemplated herein;
(h) a legal opinion of the Acquiree Corporation's counsel
addressed to NECD in form and substance mutually agreeable to NECD and MAIN; and
(i) a letter from the independent accountants engaged by MAIN
to prepare the financial statements required by Item 7 of Securities Exchange
Act Form 8-K stating that they reasonably believe such financial statements will
be ready within thirty (30) days of the Closing Date, or such other assurances
with respect to the availability of the required financial statements as are
acceptable to NECD.
3.2 OTHER DOCUMENTS AND INSTRUMENTS. The Acquiree Corporation
shall also deliver to NECD any and all such other documents and information and
such other items, as may be reasonably requested or necessary in order and to
provide NECD with material information about the business and affairs of the
Acquiree Corporation on or prior to the Closing Date. All instruments and other
documents or instruments exchanged by the parties shall be in the form as needed
to effectuate the transactions contemplated by this Agreement or to evidence the
same, and shall include any third party consents to the transactions
contemplated herein that maybe required by the provisions of any contracts,
agreements or obligations to which the Acquiree Corporation is a party or
pursuant to which a change in the stock ownership of the Acquiree Corporation is
deemed to constitute an assignment or transfer requiring such consent or
approval.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF NECD
NECD hereby represents and warrants to, and covenants with the
Sellers and the Acquiree Corporation, that the representations and warranties
set forth in this Article 4 are true, correct, accurate and complete in any and
all respects as of the date of this Agreement, and that the same will be true,
correct, accurate and complete in all respects on and as of the Closing Date, as
though made on that date, except to the extent any such representations and
warranties expressly relate to an earlier date. The representations and
warranties set forth in this Article 4 shall be modified by and shall be deemed
to include information expressly set forth in the NECD Disclosure Schedule
attached hereto (the "NECD Disclosure Schedule") which is incorporated herein by
reference and made a part of this Agreement. The NECD Disclosure Schedule will
be arranged in paragraphs and subparagraphs that correspond to the designation
of sections set forth in this Article 4.
4.1 ORGANIZATION OF NECD. NECD is a corporation that is duly
organized, validly existing, and in good standing in all material respects under
the laws of the State of Nevada and such other jurisdictions in which the nature
of its business requires it to be authorized to qualify as a foreign
corporation.
4.2 AUTHORIZATION OF TRANSACTION. NECD has full, actual and
legal corporate power and corporate authority to execute and deliver this
Agreement and to perform this Agreement and to consummate the transactions
contemplated hereby and the execution, delivery and performance of this
Agreement and the transactions contemplated hereby have been authorized and
approved by the Board of Directors of NECD.
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4.3 ENFORCEABLE OBLIGATION. This Agreement constitutes the
valid and legally binding obligation of NECD, enforceable against NECD in
accordance with its terms except as they may be limited by applicable laws of
bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement of creditors rights generally, and to general
equitable principles.
4.4 NON-CONTRAVENTION. Neither the execution, delivery and
performance of this Agreement, nor the consummation of the transactions
contemplated hereby by NECD will (i) violate any statute, law, regulation, rule,
judgement, order, decree, stipulation, injunction, charge, or other restriction
of any government, government agency, or state or federal court to which NECD or
any of the Acquiror Shares are subject or any provision of the articles of
incorporation or bylaws or similar governing rules or documents of NECD, (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel, or require any notice under any governmental rule, law or regulation
of any state or federal court or under any contract, lease, sublease, license,
sublicense, franchise, permit, indenture, agreement or mortgage or instrument of
indebtedness or under any other arrangement to which NECD is a party or by which
NECD or any of the Acquiror Shares are bound or to which NECD or any of the
Acquiror Shares is subject, (iii) nor result in the imposition of any lien,
encumbrance, claim or security interest in, to or affecting any of the
properties or assets of NECD or any of the Acquiror Shares. NECD does not have
to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any local federal or state government or governmental
agency or regulatory authority in order for NECD to execute, deliver and perform
this Agreement and consummate the transactions contemplated by this Agreement
(other than the notice required as set forth in Section 1.3 herein) nor would
the failure to do so have a material adverse
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effect on the ability of NECD to consummate the transactions contemplated by
this Agreement or have an adverse affect on any of the Acquiror Shares.
4.5 THE ACQUIROR SHARES. (a) Schedule 4.5(a) sets forth as of
the date hereof the number of issued and outstanding shares of NECD Common
Stock, all of which are duly authorized, validly issued, fully paid and
non-assessable. (b) As of the Closing Date the Acquiror Shares will be duly and
validly issued and will be fully paid and non-assessable and the Sellers will
acquire legal and beneficial ownership to such shares free and clear of all
liens, mortgages claims or other encumbrances of any kind or nature whatsoever.
The Acquiror Shares will be restricted stock consistent with Section 1.2 of this
Agreement. Title to the Acquiror Shares will be in the name of the Sellers in
the official records of NECD and in the records of NECD's stock transfer agent.
Schedule 4.5(b) attached hereto sets forth a true, correct and complete listing
of the capitalization of NECD after giving effect to the transactions
contemplated by this Agreement. (c) There are no outstanding warrants that at
the Closing there will be no warrants, options, convertible securities or other
interests or rights pre-emptive or otherwise to acquire any class of securities
of NECD other than those set forth on Schedule 4.5(c). All outstanding options
will be terminated prior to Closing at no cost to NECD and no additional
securities of NECD will be issued prior to the Closing.
4.6 LITIGATION. NECD is not subject to any unsatisfied
judgement, order, decree, stipulation, injunction, or charge nor is it a party
to or to the best of NECD's knowledge, threatened to be made a party to any
charge, complaint, action, suit, hearing, investigation or other proceeding of
or in any court or quasi-judicial or administrative agency of any federal,
state, or local jurisdiction or before any arbitrator that relates in any way,
directly or indirectly, to the transactions contemplated in this Agreement or
could have a material adverse affect on the business, assets, properties or
condition (financial or otherwise) of NECD.
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4.7 MATERIAL INFORMATION. At or prior to the Closing NECD will
deliver to Sellers the NECD Disclosure Schedule as well as NECD's registration
statement on Form 10-SB 12G, and all of its Quarterly Reports on Form 10-QSB
filed with the Securities and Exchange Commission. Each of such Reports provide
the Sellers with all material, financial and other information concerning NECD
and each such Report is true as of the date of this Agreement and correct and
complete and comply with applicable requirements of the Exchange Act. As of the
Closing, no representation or warranty by NECD, nor any statement or certificate
furnished or to be furnished to the Sellers pursuant hereto or in connection
with the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary to make the representation, warranty, statement or certificate not
misleading.
4.8 DOCUMENTATION. Prior to the Closing NECD will deliver to
the Sellers, materially correct, accurate and complete copies of all of the
contracts in the amount of $2,500 or more, and agreements and documents that
relate to NECD or the Acquiror Shares in any way. As to each such contract,
agreement, or document (collectively, each "NECD Contract"):
(a) except as otherwise noted on the NECD Disclosure Schedule,
each NECD Contract is the legal, valid, binding and enforceable obligation of
the parties thereto enforceable against such parties in accordance with their
terms;
(b) NECD is not in breach or default under any such Contract
and to the knowledge of NECD, no other party to any NECD Contract is in breach
or default, of any such Contract, nor has any event occurred with respect to
NECD which with notice or lapse of time, would constitute a breach or default or
permit termination, modification, or acceleration of any NECD Contract;
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(c) to the knowledge of NECD , no party to any Contract has
repudiated; breached or anticipatorily breached any provision thereof, nor is
there any reason to believe that any such event is likely to occur or may occur
in the future;
(d) to the knowledge of NECD , there are no disputes, oral
agreements or forbearance programs in effect as to any NECD Contract; and
(e) NECD has not assigned, transferred, conveyed, mortgaged,
deeded in trust, or encumbered any interest in any NECD Contract.
4.9 LEGAL COMPLIANCE.
(a) NECD has complied in all material respects with all
applicable federal, state and local laws and all applicable rules and
regulations of any government agency or regulatory body, and no charge,
complaint, action, suit, proceeding, hearing, investigation, claim, demand, or
notice has been filed or commenced against NECD alleging any failure to comply
with any such law, regulation or rule, and to the knowledge of NECD, none is
presently threatened.
(b) NECD has complied in all material respects with all
applicable laws, rules and regulations relating to employment and labor
relations, employee civil rights, and equal employment opportunities.
4.10 RESTRICTED STOCK. NECD understands that the shares of
stock of the Acquiree Corporation is to be acquired for its own account for
investment purposes and will not be registered with the Securities and Exchange
Commission, and that transferability of the stock will be subject to the
provisions and restrictions of state and federal securities laws and that a
restrictive legend will be placed on each stock certificate as provided for in
Section 1.2(b) hereof.
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4.11 THIRD PARTY CONSENTS. No third party consent is required
to be obtained by NECD in connection with the execution, delivery and
performance of this Agreement or with respect to the transactions contemplated
in this Agreement.
4.12 DUE DILIGENCE PERIOD. During the time period from the
effective date of this Agreement until the Closing Date (the "Due Diligence
Period"), Sellers shall be entitled to investigate NECD, review its files, visit
NECD's business premises and to talk with officers of NECD and to meet with any
and all other third parties, public and private, and to perform such other due
diligence reviews and investigations pertaining to the transaction contemplated
in this Agreement as Sellers determine is necessary or proper. Sellers agree to
keep confidential and not use for their own benefit, except in accordance with
this Agreement, any information or documentation obtained in connection with any
such investigation.
4.13 TRADING STATUS. NEC's common stock has been approved by
the NASD for trading on the OTC Bulletin Board, symbol "NECD".
4.14 PRE-CLOSING MATTERS. Prior to or contemporaneous with the
Closing NEC will have
(a) forward split its 1,860,000 shares 1.77 for 1 to
3,292,200 shares;
(b) sent the notice of the forward split required by Rule
10b-17; and
(c) filed a notice with the SEC under Rule 14f-1;
(d) changed the name of NECD to "March Indy International,
Inc.".
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ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE ACQUIREE CORPORATION AND SELLERS
The Acquiree Corporation represents and warrants to, and
covenants for the benefit of NECD, that the representations and warranties set
forth in this Article 5 are true, correct, accurate and complete in any and all
respects as of the date of this Agreement, and that the same will be true,
correct, accurate and complete in all respects on and as of the Closing Date, as
though made on that date, except to the extent any such representations and
warranties expressly relate to an earlier date. The representations and
warranties set forth in this Article 5 shall be modified by and shall be deemed
to include Acquiree Corporation's information expressly set forth in the
Acquiree Corporation's Disclosure Schedule attached hereto (the "Acquiree
Corporation's Disclosure Schedule") which is incorporated herein by reference
and made a part of this Agreement. The Acquiree Corporation's Disclosure
Schedule will be arranged in paragraphs and subparagraphs that correspond to the
designation of sections set forth in this Article 5.
5.1 ORGANIZATION OF THE ACQUIREE CORPORATION. The Acquiree
Corporation is a corporation that is duly organized, validly existing, and in
good standing in all material respects under the laws of the State of Delaware
and such other jurisdictions in which the nature of its business requires it to
be authorized to qualify as a foreign corporation. The description of the
Acquiree Corporation's Stock that is contained in Schedule 5.1 attached is a
true, correct, complete and accurate description. The Sellers own 100% of all of
the issued and outstanding stock of the Acquiree Corporation and, upon the
effectiveness of the Closing, NECD will acquire legal and beneficial ownership
to such shares free and clear of liens, mortgages, claims or other encumbrances
of any kind or nature whatsoever. There are no warrants, options, convertible
securities or other interests or rights to acquire securities of the Acquiree
Corporation.
5.2 AUTHORIZATION OF TRANSACTION. The Acquiree Corporation has
full, actual and legal corporate power and corporate authority to execute and
deliver this Agreement and to
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perform this Agreement and to consummate the transactions contemplated hereby
and the execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been authorized and approved by the Board
of Directors of and Shareholders of the Acquiree Corporation.
5.3 ENFORCEABLE OBLIGATION. This Agreement constitutes the
valid and legally binding obligation of the Acquiree Corporation and Sellers,
enforceable against each of them in accordance with its terms except as
enforcement may be limited by applicable laws of bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors rights generally, and to general equitable principles.
5.4 NON-CONTRAVENTION. Except as noted in the Acquiree
Corporation's Disclosure Schedule, neither the execution, delivery and
performance of this Agreement by the Acquiree Corporation and Sellers, nor the
consummation of the transactions contemplated hereby will (i) violate any
statute, law, regulation, rule, judgement, order, decree, stipulation,
injunction, charge, or other restriction of any government, government agency,
or state or federal court to which the Acquiree Corporation or any of the
Acquiree Shares are subject, (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify or cancel, or require any notice
under any governmental rule, law or regulation of any state or federal court or
under any contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage or instrument of indebtedness or under any
other arrangement to which the Acquiree Corporation or any of the Acquiree
Shares are subject. Except as noted in the Acquiree Corporation's Disclosure
Schedule, neither the Acquiree Corporation nor the Sellers have to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any local federal or state government or governmental agency or
regulatory authority
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in order for the parties to execute, deliver and perform this Agreement and
consummate the transactions contemplated by this Agreement.
5.5 DOCUMENTATION. Prior to the Closing, the Acquiree
Corporation will deliver to NECD true, correct, accurate and complete copies of
all of the material contracts, agreements and documents that comprise or relate
to the Acquiree Corporation, or the Acquiree Shares in any way. As to each such
contract, agreement, or document (collectively, each an "Acquiree Contract"):
(a) except as noted in the Acquiree Corporation's Disclosure
Schedule, each Acquiree Contract is the legal, valid, binding and enforceable
obligation of the parties thereto enforceable against such parties in accordance
with their terms;
(b) to the knowledge of the Acquiree Corporation, no party to
any Acquiree Contract is in breach or default, and no event has occurred which,
with notice or lapse of time, would constitute a breach or default or permit
termination, modification, or acceleration of such Acquiree Contract;
(c) to the knowledge of the Acquiree Corporation, no party to
any Acquiree Contract has repudiated, breached, or anticipatorily breached any
provision thereof, nor is there any reason to think that any such is likely to
occur or may occur in the future;
(d) to the knowledge of the Acquiree Corporation, there are no
disputes, oral agreements, or forbearance programs in effect with respect to any
Acquiree Contract; and
(e) the Acquiree Corporation has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or encumbered any interest in any Acquiree
Contract.
5.6 LITIGATION. The Acquiree Corporation, is not subject to
any unsatisfied judgement, order, decree, stipulation, action, suit, proceeding,
hearing, or investigation of or in any court or quasi-judicial or administrative
agency of any federal, state or local jurisdiction or before
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any arbitrator that relates in any way, directly or indirectly to the
transactions contemplated in this Agreement or could have a material adverse
effect on the business, assets, properties or condition (financial or otherwise)
of the Acquiree Corporation.
5.7 LEGAL COMPLIANCE
(a) The Acquiree Corporation has complied in all material
respects with all applicable rules and regulations of any federal, state, and
local governmental agency or regulatory body and no charge, complaint, action,
suit, proceeding, hearing, investigation, claim, demand, or notice has been
filed or commenced against the Acquiree Corporation alleging any failure to
comply with any such law, rule or regulation and to the knowledge of Acquiree
Corporation, none is presently threatened.
(b) The Acquiree Corporation has complied in all material
respects with all applicable laws, rules and regulations relating to the
employment, labor relations, employee civil rights, and equal employment
opportunities.
5.8 MATERIAL INFORMATION. As of the date of this Agreement and
as of the Closing Date no representation or warranty by the Acquiree
Corporation, nor any statement or certificate furnished or to be furnished by
the Acquiree Corporation to NECD pursuant hereto or in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact, or omits or will omit to state any material fact necessary
to make the representation, warranty, statement or certificate not misleading.
5.9 REGISTRATION REPRESENTATIONS. The Sellers are acquiring
the Acquiror Shares for the Sellers' account, for investment purposes only and
not with a view to the resale or other
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distribution thereof, in whole or in part. As stated above, the Sellers are
aware that as of the Closing Date the Acquiror Shares have not been and will not
be registered under the Securities Act and that NECD provides no assurance that
the Acquiror Shares will ever be registered the Securities Act. Each of the
Sellers is willing and able and agrees to bear the economic risk of investment
in the Acquiror Shares and the Additional Acquiror Shares for an indefinite
period of time, and each is capable of bearing that risk. Sellers represent that
they are "Accredited Investors" as that term is defined in Regulation D of the
Securities Act.
5.10 THIRD PARTY CONSENTS. All third party consents required
to be obtained by the Acquiree Corporation and Sellers in order to consummate
the transactions contemplated in this Agreement are listed in the Acquiree
Corporation's Disclosure Schedule.
5.11 DUE DILIGENCE PERIOD. During the time period from the
effective date of this Agreement until the Closing date (the "Due Diligence
Period"). NECD shall be entitled to investigate the Acquiree Corporation, review
its files, to visit the Acquiree Corporation's business premises and to talk
with officers and employees of Acquiree Corporation and to meet with any and all
other third parties, public and private, and to perform such other due diligence
reviews and investigations pertaining to the transactions contemplated in this
Agreement as NECD determines is necessary or proper. NECD agrees to keep
confidential and not use for its own benefit, except in accordance with this
Agreement, any information or documentation obtained in connection with any such
investigation.
5.12 FINANCIAL STATEMENTS. Within thirty (30) days after the
Closing there will be attached to this Agreement as Exhibit E the audited
financial statements of Acquiree Corporation as of December 31, 1998 as prepared
by Feldman Serb Horowitz & Co., P.C., independent accountants (the "Financial
Statements") and unaudited Financial Statements of Acquiree
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Corporation as September 30, 1999 prepared by Acquiree Corporation and certified
by an officer of Acquiree Corporation (the "Unaudited Financial Statements). The
Financial Statements and the Unaudited Financial Statements will have been
prepared in accordance with generally accepted accounting principles
consistently applied and will fairly present in all material respects the
financial position of Acquiree Corporation as of December 31, 1998 and September
30, 1999 and for the periods then ended. Since the date of the Financial
Statements, there will have been no material adverse change in the financial
condition of the Acquiree Corporation. Acquiree Corporation will have no
liabilities, commitments or obligations, contingent or otherwise, not shown on
the Financial Statements or Unaudited Financial Statements and further
represents that such Financial Statements and Unaudited Financial Statements
will show that its liabilities do not exceed $300,000 U.S. and that at Closing
it will have not less than $2,000,000 in shareholders equity. The Financial
Statements and Unaudited Financial Statements will consist of Balance Sheets,
Statements of Operations, Statements of Shareholders Equity and Statements of
Cash Flows.
ARTICLE 6
CONDITIONS PRECEDENT
6.1 Conditions Precedent to the Obligations of NECD. The
following are conditions precedent to the obligation of NECD to consummate the
transaction contemplated hereby. Any condition listed below may be waived by
NECD at or prior to the Closing Date.
(a) Delivery to NECD of all information and materials
required to be delivered under any provision of this Agreement;
(b) Receipt of all necessary third party consents to be
obtained by the Acquiree Corporation or the Sellers;
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(c) Performance by each Seller of all of his obligations under
this Agreement that are required to be performed prior to Closing;
(d) MAIN owns the assets and business described in its
Business Plan attached hereto;
(e) The representations and warranties by the Acquiree
Corporations and Sellers in connection with this Agreement are true and correct
as of the Closing, except to the extent any such representation or warranty
expressly relates to an earlier date;
(f) Compliance with applicable conditions precedent required
by Article 7 herein; and
(g) Receipt of assurances provided for in Section 3.1(i) of
Article 3 herein.
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLERS.
The following are conditions precedent to the obligations of Sellers to
consummate the transaction contemplated hereby. Any condition listed below may
be waived by the Sellers at or prior to the Closing Date.
(a) Delivery to the Sellers of all information and materials
required to be delivered by NECD under any provision of this agreement;
(b) Receipt of all necessary third party consents to be
obtained by NECD;
(c) As of the Closing Date NECD's Common Stock will be trading
on the OTC Bulletin Board (Symbol NECD) and that it will have approximately 35
shareholders of record and that its authorized capitalization will consist of no
preferred shares, 25,000,000 shares of Common Stock, no par value, of which
3,292,200 shares will be issued and outstanding after giving effect to a 1.77 to
1 forward stock-split;
(d) As of the Closing Date NECD shall have no assets or
liabilities or obligations of any nature or kind whatsoever;
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(e) NECD will be a reporting issuer under Section 12(g) of the
Securities Exchange Act of 1934 on or before the Closing Date, and will have
filed all reports required to be filed as at the Closing;
(f) Performance by NECD of all of its obligations under this
Agreement that are required to be performed prior to Closing;
(g) Compliance with applicable conditions precedent required
by Article 7 herein; and
(h) The representations and warranties by NECD in connection
with this Agreement are true and correct as of the Closing except to the extent
any such representation or warranty expressly relates to an earlier date.
6.3 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF NECD AND
SELLERS. All Exhibits to the Agreement shall have been completed and furnished
to both parties and shall be mutually satisfactory to both parties.
6.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the parties contained in this Agreement shall
survive the Closing and shall continue to be the obligations of the parties for
a period of one year after the date of the Closing.
ARTICLE 7
OTHER COVENANTS AND CONDITIONS TO THE TRANSACTIONS
The following are conditions precedent to the obligation of
Sellers and NECD as the case may be to consummate the transactions contemplated
by this Agreement and certain post-closing covenants.
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7.1 TERMINATION OF EMPLOYMENT AND OTHER AGREEMENTS. As set
forth in Exhibit A, all employment, Stock Option and other compensation or
employee benefit agreements shall have been terminated on or before the Closing
with no future obligation with respect thereto to any present employee, officer,
director or shareholder of NECD, all of which shall have been released to the
satisfaction of the Sellers.
7.2 CHANGE OF NAME, STOCK SPLIT. NECD agrees to effectuate the
following before or contemporaneous with the Closing: (i) changing the name of
NECD to March Indy International, Inc. or any other suitable name requested by
Sellers reflecting the new business of the corporation and (ii) a 1.77 for 1
forward stock split of NECD's Common Stock.
ARTICLE 8
CLOSING
8.1 ACTIONS TO BE TAKEN. At the Closing the following
actions shall be taken:
(a) NECD shall confirm that the deliveries by Sellers set
forth in Article 3 herein have been completed and are satisfactory and that all
conditions precedent to NECD's obligation to consummate the transaction
contemplated by this Agreement have been satisfied.
(b) Sellers shall confirm that deliveries by NECD set forth
in Article 2 herein have been completed and are satisfactory and that all
conditions precedent to NECD's obligation to consummate the transaction
contemplated by this Agreement have been satisfied.
(c) The then officers and Directors of NECD shall resign
seriatum and shall be replaced with those persons designated by Sellers.
8.2 OPERATION OF BUSINESS. Between the date of this Agreement
and the Closing, NECD shall continue to operate the business in the ordinary
course and consistent with past practices, and shall not engage in any
transaction which is not in the ordinary course of business.
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ARTICLE 9
GENERAL PROVISIONS
9.1 COSTS AND FEES. If any party breaches any provision of
this Agreement, the breaching party agrees to pay the non-breaching party all
reasonable attorney's fees, expert witness fees, investigation costs, costs of
tests and analysis, travel and accommodation expenses, deposition and trial
transcript costs, court costs and other costs and expenses incurred by the
non-breaching party in enforcing this Agreement and/or preparing for legal or
other proceedings, at the trial or appellate level, whether or not such
proceedings are instituted. If any legal or other proceedings are instituted,
the party prevailing in any such proceeding shall be paid all of the
aforementioned costs, expenses and fees, by the other party, and if any
judgement is secured by such prevailing party, all such costs, expenses, and
fees shall be included in such judgement. References in this paragraph to "legal
proceedings" refer to litigation as well as arbitration proceedings and any
other similar or related proceedings.
9.2 WAIVER. No delay by a party in exercising any right or
remedy shall constitute a waiver of a party's rights under this Agreement, and
no waiver by any party of the breach of any covenant of this Agreement by the
other shall be construed as a waiver of any proceeding or succeeding breach of
the same or any other covenant or condition of this Agreement.
9.3 BROKER. Each party represents to the other that such party
has not dealt with any person acting as a broker in connection with this
transaction.
9.4 TERMINATION. This Agreement may, by notice given prior
to or at the Closing, be terminated:
(a) by either NECD or Sellers if a material breach of any
provision of this Agreement has been committed by the Sellers and/or the
Acquiree Corporation in the case of NECD, and NECD, in the case of the Sellers
and such breach has not been waived;
(b) (i) by NECD if any of the conditions in Sections 6.1 and
6.3 of Article 6 have
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not been satisfied as of the Closing Date or if satisfaction of such a condition
is or becomes impossible (other than through the failure of NECD to comply with
any of its obligations under this Agreement) and Sellers have not waived such
condition on or before the Closing Date; or (ii) by Sellers, if any of the
conditions in Sections 6.2 and 6.3 of Article 6 have not been satisfied as of
the Closing Date or if satisfaction of such a condition is or becomes impossible
(other than through the failure of Sellers to comply with their obligations
under this Agreement) and NECD has not waived such condition on or before the
Closing Date;
(c) by mutual consent of NECD and Sellers; or
(d) by either NECD or Sellers if the Closing has not occurred
(other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before December 31, 1999, or such later date as the parties may agree upon.
9.5 NOTICES. No notice, consent, approval, or communication
provided for herein or given in connection herewith shall be validly given,
made, delivered, or served unless it is in writing and delivered personally,
sent by overnight courier, or sent by registered or certified United States
Mail, postage prepaid, with return receipt requested, to the addresses for each
Party set forth below. Any Party hereto may from time to time change its address
by notice to the other parties given in the manner provided herein. Notices,
consents, approvals, and communications by mail in the United States mail in the
manner provided above or upon delivery to the respective addresses set forth
above if delivered personally or sent by overnight courier. Addresses of the
parties are the following:
To N.E.C Properties, Inc.:
6767 W. Tropicana Avenue
Suite 207
Las Vegas, Nevada 89103
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With a copy to:
Ronald J. Stauber
1880 Century Park East - Suite 300
Los Angeles, California 90067
To the Acquiree Corporations:
March Indy International, Inc.
950 Third Avenue - Suite 2500
New York, New York 10022
To the Sellers:
Tom Megas
11 Horbury Cresent
London WI
U.K.
Peter Voller
14 Lennox Gardens
London SW1X ODG
U.K.
With a copy to:
Foreht Last Landau & Katz, LLP
415 Madison Avenue
New York, New York 10017
Attention: Peter Landau, Esq.
9.6 INTERPRETATION AND TIME. The captions of the paragraphs of
this Agreement are for convenience only and shall not govern or influence in the
interpretation hereof. This Agreement is the result of negotiations among the
parties and accordingly, shall not be construed for or against any party
regardless of which party drafted this Agreement or any portion thereof. Time is
of the essence under this Agreement.
9.7 SUCCESSORS AND ASSIGNS. All of the provisions hereof shall
inure to the benefit of and for binding upon the successors and permitted
assigns of the parties hereto. This Agreement may not be assigned by any party
hereto, without the written consent of the other party hereto.
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9.8 NO PARTNERSHIP. This Agreement is not intended to, and
nothing contained in this Agreement shall, create any partnership, joint venture
or other similar arrangement among the parties.
9.9 FURTHER ASSURANCES. Each of the parties shall execute and
deliver all such other documents and perform such other acts, in addition to
execution and delivery of this Agreement as are from time to time necessary in
order to carry out the purposes, matters and transactions that are contemplated
in this Agreement.
9.10 INCORPORATION OF EXHIBITS. All exhibits attached to this
Agreement are hereby incorporated herein by reference.
9.11 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Delaware, without giving effect to the conflict of law
provisions or principles of that State, and shall be construed as a contract
between citizens of such State.
9.12 DATE OF PERFORMANCE. If the date of performance of any
obligations or the last day of any time period provided for herein should fall
on a Saturday, Sunday or legal holiday, then said obligation shall be due and
owing and said time period shall expire, on the first day thereafter which is
not a Saturday, Sunday or legal holiday. Except as may otherwise be set forth
herein, any performance provided for herein shall be timely made if completed no
later than 5:00 P.M., Pacific time, on the day of performance.
9.13 COUNTERPARTS. This Agreement may be executed in any
number of counterparts. This Agreement may be signed by original signatures or
by fax signatures. Any set of counterparts of this Agreement, whether faxed or
originals or both, showing signatures by all parties, taken together, shall
constitute a single copy of this Agreement.
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9.14 RESOLUTION OF DISPUTES. In the event of any disputes
among the parties as to their rights and obligations under this Agreement,
including, but not limited to, any question as to whether or not a party has
performed its obligations fully or remedied an alleged breach and any and all
other disputes arising under this Agreement, shall be resolved as follows:
(a) The parties shall submit their dispute to at least
four (4) hours of mediation in accordance with the mediation procedures of
American Arbitration Association ("AAA"). Any mediation session shall be held in
the City of Wilmington and State of Delaware.
(b) In the event the dispute does not then settle within 15
calendar days after the first mediation session, the parties agree to submit the
dispute to arbitration which shall be held in the City of Wilmington and State
of Delaware in accordance with the Rules of the AAA (except as modified in this
Agreement). The submission to arbitration hearing shall be no later than 45
calendar days after the first mediation session. The parties agree that
arbitration shall be the exclusive means of resolving any such dispute.
(c) The arbitrator or arbitrators conducting the arbitration
hearing shall render the arbitration decision in writing, which writing shall
explain the reasoning and basis for the decision. The decision of the arbitrator
or arbitrators shall be conclusive and binding on the parties and no subject to
any judicial review or appeal. The decision of the arbitrator or arbitrators may
be enforced in any court of competent jurisdiction.
(d) The parties agree to share equally the costs of mediation.
However, if the dispute is settled through arbitration, the prevailing party
shall be entitled to recover all costs incurred, including reasonable attorney's
fees, to enforce its rights hereunder, in addition to any damages recovered, as
provided in "Costs and Fees" in Section 9.1 above.
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9.15 ASSIGNMENT. No party shall assign this Agreement, nor
any interest arising herein, without the written consent of the other parties.
9.16 RECITALS. The recitals set forth above are a part of this
Agreement.
IN WITNESS WHEREOF, parties hereto have affixed their
signatures on the date set forth to be effective as of the year and day first
above written.
N.E.C. Properties, Inc., a Nevada corporation
Date: October 27, 1999 By: /s/ Vivian M. Kreuger
----------------------- -------------------------------------------
Name: Vivian M. Kreuger
Its: President
March Indy International, Inc.
a Delaware corporation
Date: October 28, 1999 By: /s/ Tom Megas
---------------------- -------------------------------------------
Name: Tom Megas
Its: President
Date: October 28, 1999 /s/ Tom Megas
----------------------- ----------------------------------------------
Tom Megas, Seller
Date: October 28, 1999 /s/ Peter Voller
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Peter Voller, Seller
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