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): October 11, 1997
THE THORSDEN GROUP, LTD.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
000-24672 33-0611746
(Commission File No.) (IRS Employer Identification No.)
4505 South Wasatch Blvd., Suite 340
Salt Lake City, Utah 84124
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (801) 424-0044
1500 Quail Street, Suite 550
Newport Beach, California 92660
(Former address)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On October 11, 1997, Thorsden Acquisition Corp. ("TAC"), a Utah
corporation, was merged with and into Arkona, Inc.("Arkona"), a Utah
corporation, pursuant to an Agreement and Plan of Merger, dated October 11,
1997, among TAC, Arkona, and The Thorsden Group, Ltd. ("Thorsden" or the
"Registrant"), such agreement referred to herein as the "Merger Agreement".
Upon consummation of the merger of TAC with Arkona (the "Merger"), TAC ceased
to exist, and Arkona, the surviving corporation, changed its name to Arkona
Software, Inc. Thorsden will change its name to Arkona, Inc.(if such name is
available in Delaware). Arkona is engaged in the business of developing and
marketing computer software products. Thorsden had no operations of its own
prior to its acquisition of Arkona through the Merger. TAC was formed for the
purpose of accomplishing the Merger. The Merger is intended to be a tax-free
"reverse triangular merger" for federal income tax purposes and is to be
accounted for as a recapitalization of Thorsden by an exchange of Common Stock
of Thorsden, $.001 par value ("Thorsden Common Stock"), for all of the issued
and outstanding Common Stock of Arkona, no par value (the "Arkona Common
Stock").
Under the terms of the Merger Agreement, the shares of Arkona Common
Stock outstanding immediately prior to the closing of the Merger were
converted into and exchanged for a total of 14,000,000 shares of Thorsden
Common Stock"), which represented approximately 70% of the shares of the
Registrant's Common Stock outstanding immediately after consummation of the
Merger.
As contemplated by the Merger Agreement, the Board of Directors of Arkona
was elected to serve as the new Board of Directors of the Registrant. That
Board consists of nine persons. Such persons began their term of office as
directors of Thorsden immediately following the effective time of the Merger.
The former members of the Registrant's Board of Directors resigned at the
effective time of the Merger. Consequently, the Arkona Board members, who are
also the former shareholders of Arkona, if they act together, have effective
control of the business and affairs of the Registrant. Upon the effectiveness
of the Merger, the nine new Board members as a group held an aggregate of
14,000,000 shares of Thorsden Common Stock, representing approximately 70% of
the outstanding shares of Thorsden Common Stock.
Upon consummation of the Merger, Thorsden anticipates incurring $80,000
in transaction costs associated with the Merger which it will record against
equity. This amount is a preliminary estimate and there can be no assurance
that Thorsden will not incur additional charges to reflect costs associated
with the Merger.
Prior to the closing of the Merger, Thorsden completed a private
placement of 4,000,000 shares of Thorsden Common Stock for $2,000,000, which
represents approximately 20% of the total issued and outstanding shares of
Thorsden Common Stock immediately following completion of the Merger. The
purchasers of such shares of Thorsden Common Stock in the private placement
paid cash of $958,000 and marketable securities for the balance of the
purchase price. The shares issued in such private placement are restricted
securities and bear restrictive legends.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED. The financial
statements of Arkona will be filed by amendment to this Report within 60
days.
(b) PRO FORMA FINANCIAL INFORMATION. Pro forma financial information will
be filed by amendment to this Report.
(c) EXHIBITS.
2.1 Agreement and Plan of Merger dated October 11, 1997
(Schedules omitted)
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 hereunto duly authorized.
THE THORSDEN GROUP, LTD.
Dated: October 28, 1997 By: /s/ Stephen W. Russell
--------------------------------
Stephen W. Russell
Chief Financial Officer
ATTACHMENT
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
dated as of
October 11, 1997
among
The Thorsden Group, Ltd.
and
Thorsden Acquisition Corp.
(a wholly-owned subsidiary of The Thorsden Group, Ltd.)
and
Arkona, Inc.
SCHEDULES
[OMITTED]
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS [OMITTED]
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of October
11, 1997, by and among The Thorsden Group, Ltd., a Delaware corporation
("Thorsden"), having its principal place of business at 1500 Quail Street,
Suite 500, Newport Beach, CA 92660; Thorsden Acquisition Corp., a Utah
corporation ("TAC"), a wholly-owned subsidiary of Thorsden, having its
principal place of business at 1500 Quail Street, Suite 500 Newport Beach, CA
92660; and Arkona, Inc., a Utah corporation ("Arkona"), having its principal
place of business at 201 South Main Street, Suite 908, Salt Lake City, Utah
84111. TAC and Arkona are each sometimes referred to herein as a "Constituent
Corporation" or collectively as the "Constituent Corporations" and Arkona is
sometimes referred to herein as the "Surviving Corporation."
WHEREAS, the respective Boards of Directors of Thorsden, TAC and Arkona
have determined that it is in the best interest of each corporation and its
respective stockholders that Arkona be acquired by Thorsden through a merger
of TAC with and into Arkona in the manner set forth herein.
IT IS AGREED:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
Section 1.01. "Arkona Common Stock" shall mean the Common Stock, no par
value, of Arkona.
Section 1.02. "Thorsden Common Stock" shall mean the Common Stock,
$0.001 par value per share, of Thorsden.
Section 1.03. "Arkona Certificate" shall mean a certificate
representing shares of Arkona Common Stock.
Section 1.04. "Commission" shall mean the Securities and Exchange
Commission.
Section 1.05 "Dissenting Shareholders" shall mean Shareholders of
Arkona who are entitled to notice of and to vote at the special meeting of
Shareholders held to approve the Merger who do not vote in favor of the Merger
and who have delivered to Arkona a written demand for the fair value of the
Arkona Common Stock and otherwise complied with the provisions of Part 13 of
the Utah Revised Business Corporation Act.
Section 1.06. "Effective Date" shall mean the effective date of the
Merger, which shall be the date and time of filing of the certificate of
merger required to be filed hereunder.
Section 1.07. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
Section 1.08. "Exchange Agent" shall mean United Stock Transfer,
Englewood, Colorado or such other agent appointed by Thorsden to handle the
exchange of Arkona Certificates for certificates representing Thorsden Common
Stock.
Section 1.09. Intentionally Omitted.
Section 1.10. "GAAP" shall mean generally accepted accounting
principles applied consistent with past practice of Thorsden.
Section 1.11. "Mailing Date" shall mean the date upon which the
Subscription Agreement to be distributed to the shareholders of Arkona in
connection with the Merger shall first be mailed or distributed to such
shareholders.
Section 1.12. "Merger" shall mean the merger of TAC with and into Arkona
with Arkona as the Surviving Corporation, and in consideration for which the
Shareholders of Arkona will receive Thorsden Common Stock. The Merger shall
be a "Reverse Triangular Merger" pursuant to Section 368(a)(2)(E) of the
Internal Revenue Code.
Section 1.13. "Subscription Agreement" shall mean the Subscription
Agreement to be furnished to the shareholders of Arkona in connection with the
Merger.
Section 1.14. "Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.15. "Subsidiary's Common Stock" shall mean the Common Stock, no
par value, of TAC.
Section 1.16. "Surviving Corporation" shall mean Arkona.
ARTICLE II
MERGER OF TAC INTO ARKONA
Section 2.01. Surviving Corporation. Upon the approval and adoption of
this Agreement by the shareholders of Arkona and the shareholder of TAC in
accordance with the laws of the State of Utah and the satisfaction or waiver
of the conditions set forth herein to the obligations of the parties hereto, a
certificate of merger shall be filed with the Department of Commerce, Division
of Corporations, of the State of Utah. Effective as of the close of business
on the date on which such certificate of merger is filed, TAC shall merge with
and into Arkona, which, as the Surviving Corporation, shall continue its
existence under the laws of the State of Utah under the name of Arkona, Inc.
The date and time of such filing is herein referred to as the "Effective
Date." At the Effective Date, the separate existence of TAC shall cease,
Arkona shall change its name to Arkona Software, Inc., and Thorsden shall
change its name to "Arkona, Inc."
ARTICLE III
ARTICLES OF INCORPORATION, BY-LAWS, DIRECTORS AND OFFICERS
Section 3.01. Articles of Incorporation. The Articles of Incorporation
of Arkona in effect on the Effective Date shall be the Articles of
Incorporation of the Surviving Corporation until amended as provided by law.
Section 3.02. By-Laws. The by-laws of Arkona in effect on the Effective
Date shall be the by-laws of the Surviving Corporation until amended as
provided by law.
Section 3.03. Directors and Officers. At the Effective Date, the
officers and the members of the Board of Directors of Arkona shall be the
officers and directors of the Surviving Corporation. Such directors shall
hold office until the next annual or special meeting of Arkona stockholders
and until their successors are duly elected and qualified, and such officers
shall hold office until they are replaced by the directors.
Section 3.04. Indemnification. From and after the Effective Date, each
officer, director and employee of Arkona who becomes a director or officer of
or employed by Thorsden or any of its subsidiaries after the Effective Date
shall be indemnified by Thorsden against any losses incurred by such director,
officer or employee in connection with the performance of his or her duties to
Thorsden or any of its subsidiaries to the same extent and on the same terms
as all other directors, officers or employees of Thorsden or its subsidiaries
are then indemnified by Thorsden.
ARTICLE IV
CONVERSION AND EXCHANGE OF SHARES
Section 4.01. Conversion of Shares. The manner and basis of converting
the shares or interests of each Constituent Corporation shall be as follows:
(a) Upon the Effective Date, all of the Arkona Common Stock issued and
outstanding shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into and exchanged for 14,000,000 shares
of Thorsden Common Stock, which shall represent approximately 70.0% of the
total 20,000,000 shares of Thorsden Common Stock then issued and outstanding.
All such shares shall be fully paid and non-assessable. Upon the Effective
Date, all of the Arkona Common Stock so converted shall be immediately
canceled.
(b) Subject to the provisions of paragraph (c) of this Section 4.01, the
Arkona Common Stock which shall be outstanding immediately prior to the
Effective Date shall by virtue of the Merger and without any action on the
part of the holder thereof, be converted as a group, as of the Effective Date,
into 14,000,000 shares of Thorsden Common Stock. The number of shares of
Thorsden Common Stock to be issued in the Merger shall be reduced in the event
that there are Dissenting Shareholders, to that which is the percentage of all
Arkona Common Stock held by holders of Arkona Common Stock who are not
Dissenting Stockholders.
(c) No certificates for fractions of shares of Thorsden Common Stock and
no scrip or other certificates evidencing fractional interests in such shares
shall be issuable. Each stockholder of Arkona who would otherwise be entitled
to a fractional share shall, in lieu thereof, be paid a whole share of
Thorsden Common Stock.
(d) Each share of Arkona Common Stock held in its treasury, if any,
immediately prior to the Effective Date shall, by virtue of the Merger and
without any action on the part of the holder thereof, be canceled and retired
and cease to exist, without any consideration therefor.
(e) All outstanding shares of Arkona Common Stock held by Dissenting
Shareholders shall not be converted into the right to receive Thorsden Common
Stock as described above, but shall be entitled to receive such consideration
as shall be provided in Part 13 of the Utah Revised Business Corporation Act,
except that shares of Arkona Common Stock outstanding at the Effective Date
and held by a Dissenting Shareholder who shall thereafter withdraw his or her
demand for payment of the fair value of his or her interest as provided for in
Part 13 of the Utah Revised Business Corporation Act, or otherwise with
Thorsden's consent, shall be deemed converted, as of the Effective Date, into
the right to receive the Thorsden Common Stock as provided for in this
Agreement.
(f) The aggregate number of shares of Thorsden Common Stock set forth in
Section 4.01 (b) shall be subject to appropriate and proportionate adjustment
in the event that, prior to the Effective Date, the outstanding shares of
Thorsden Common Stock, as a group, shall have been, without consideration,
increased, decreased, changed into or exchanged for a different number or
amount of shares or securities through reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
like change in capitalization, other than pursuant to the Merger, or in the
event that the capitalization of Thorsden is other than as represented by
Thorsden and TAC in Section 6.01 below, so that in any event the Shareholders
of Arkona receive their respective portions of Thorsden Common Stock which in
the aggregate is 70.0% of the total issued and outstanding Thorsden Common
Stock.
Section 4.02. Exchange of Certificates
(a) Each holder of record on the Effective Date of shares of Arkona
Common Stock shall be entitled, upon the surrender to Thorsden or any exchange
agent selected by Thorsden of the certificate for his or her interests of
Arkona Common Stock for cancellation, to receive his or her pro rata portion
of (i) certificates representing the number of shares of Thorsden Common Stock
into which the holder's shares of the Arkona Common Stock shall have been
converted in the Merger under Section 4.01(b) and (c).
(b) Until so presented and surrendered in exchange for certificates
representing shares of Thorsden Common Stock, each certificate which
represented issued and outstanding shares of Arkona Common Stock which were
converted at the Effective Date into the shares of Thorsden Common Stock shall
be deemed for all corporate purposes to evidence the ownership of the number
of shares of Thorsden Common Stock into which the holder's shares have been
converted in the Merger.
(c) Promptly after the Effective Date, Thorsden shall deliver to the
Exchange Agent certificates representing such number of shares of restricted
Thorsden Common Stock as shall be issuable in exchange for outstanding shares
of Arkona Common Stock pursuant to Section 4.01. Promptly after the Effective
Date, the Exchange Agent shall mail to each record holder of an outstanding
Arkona Certificate, which immediately prior to the Effective Date represented
shares of Arkona Common Stock, a form letter of transmittal and instructions
for use in effecting the surrender of the Arkona Certificates for exchange of
Thorsden Common Stock as provided herein. Upon surrender to the Exchange
Agent of an Arkona Certificate, together with such letter of transmittal duly
executed, and subject to Section 4.01(b) and (c), the holder of such Arkona
Certificate shall be entitled to receive in exchange therefor certificates for
140,000 shares of Thorsden Common Stock for each share of Arkona Common Stock
held by the shareholder at the Effective Date. If a certificate for shares of
Thorsden Common Stock is to be issued to a person other than the person in
whose name the Arkona Certificate surrendered is registered, it shall be a
condition of exchange that the Arkona Certificate so surrendered shall be
properly endorsed or otherwise in proper form for transfer and that the person
requesting such exchange shall pay any transfer or other taxes required by
reason of the issuance of the Thorsden Common Stock described herein to a
person other than the registered holder of the Arkona Certificate surrendered,
or establish to the satisfaction of Thorsden that such tax has been paid or is
not applicable.
Section 4.03. Thorsden Common Stock. Except for the issuance of shares
of Thorsden Common Stock upon conversion of shares of Arkona Common Stock
pursuant to Section 4.01, the Merger shall effect no change in the shares of
Thorsden Common Stock and none of its shares shall be converted as a result of
the Merger.
Section 4.04. No Further Transfers. After the Effective Date, there
shall be no registration of transfers on the shareholder transfer books of
Arkona of the shares which were outstanding immediately prior to the Effective
Date.
Section 4.05. Legended Certificates. Certificates representing shares
of Thorsden Common Stock issued to the shareholder of Arkona shall be subject
to stop transfer orders and bear a legend substantially as follows:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
LAWS. THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933 AND APPROPRIATE
STATE SECURITIES LAWS. FURTHERMORE, NO OFFER, SALE, TRANSFER, PLEDGE OR
HYPOTHECATION IS TO TAKE PLACE UNLESS THE COMPANY RECEIVES AT THE TRANSFERRING
SHAREHOLDER'S EXPENSE, AN OPINION OF COUNSEL SATISFACTORY TO IT, THAT AN
EXEMPTION FORM REGISTRATION IS AVAILABLE.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ARKONA
Arkona represents and warrants to Thorsden and TAC that:
Section 5.01. Organization and Capitalization of Arkona. Arkona is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Utah. The name and address of each shareholder of
Arkona, together with his respective number of shares of Arkona Common Stock,
is set forth in Schedule 5.01 attached hereto. No dividends have been
declared and not paid and no dividends are in default. Except as set forth in
Schedule 5.01, there are no other equity securities of any class of Arkona
authorized, issued, reserved for issuance or outstanding. There are no
outstanding options, warrants, agreements or rights to subscribe for or to
purchase, or commitments to issue, Arkona Common Stock.
Section 5.02. Power and Authority. Arkona has all requisite power and
authority to own, lease and operate its properties and to conduct its business
as presently conducted and as proposed to be conducted and is duly qualified
or licensed as a foreign corporation in good standing in each jurisdiction in
which the character of its properties or the nature of its business activities
require such qualification (except where the failure to be so qualified will
not have a material adverse effect on the business, properties, financial
condition or earnings of Arkona). Arkona has no subsidiaries.
Section 5.03. Articles of Incorporation, Bylaws and Minutes of Arkona.
The copies of the Articles of Incorporation of Arkona, certified by the
Department of Commerce of the State of Utah, and the Bylaws of Arkona,
certified by its Secretary, are true, complete and correct, and Arkona's
Minutes contain a record, which is complete and accurate in all material
respects, of all meetings and other actions of its Shareholders and Board of
Directors, copies of all of which are attached hereto at Schedule 5.03.
Section 5.04. Authority for Agreement. The shareholders of Arkona have
approved this Agreement and have authorized the execution and delivery hereof.
Arkona has full power, authority and legal right to enter into this Agreement
and to consummate the transactions contemplated hereby.
Section 5.05. Affiliates. The names of those persons who will acquire
shares of Thorsden Common Stock, in connection with the transactions
contemplated by this Agreement who may be deemed to be "affiliates" of Arkona
under Rule 145 under the Securities Act and the percentage of membership
interests of Arkona Common Stock owned beneficially or of record or both by
each of them are set forth on Schedule 5.05 attached hereto.
Section 5.06. Intentionally Omitted.
Section 5.07. No Violation to Result. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby:
(a) are not in violation or breach of, do not conflict with or
constitute a default under, and will not accelerate or permit the acceleration
of the performance required by, any of the terms of the charter documents or
by-laws of Arkona or any note, debt instrument, security agreement, mortgage,
lease or license, or any other contact or agreement (collectively, the "Arkona
Agreements(s)"), written or oral, to which Arkona is a party or by which
Arkona or any of its material properties or assets are bound;
(b) will not be an event which, after notice or lapse of time or both,
will result in any such violation, breach, conflict, default, or acceleration;
(c) will not result in violation under any law, judgment, decree, order,
rule, regulation or other legal requirement of any governmental authority,
court or arbitration tribunal whether federal, state, provincial, municipal or
local and applicable to Arkona; and
(d) will not result in the creation or imposition of any lien,
possibility of lien, encumbrance, security agreement, equity, option, claim,
charge, pledge or restriction in favor of any third person upon any of the
material properties or assets of Arkona.
Section 5.08. No Existing Defaults. To the best of its knowledge Arkona
is not in default:
(a) under any of the terms of any Arkona Agreement;
(b) under any law, judgment, decree, order, rule regulation or other
legal requirement or any governmental authority, court or arbitration tribunal
whether federal, state, provincial, municipal or local and applicable to it or
to any of its properties or assets; or
(c) in the payment of any of its monetary obligations or debts.
To the best of Arkona's knowledge and belief, there exists no condition
or event which, after notice or lapse of time or both, would constitute a
default in connection with any of the foregoing.
Section 5.09. Financial Statements. The audited financial statements of
Arkona's predecessor, Arkona, LLC, a Utah limited liability company ("LLC")
from LLC's inception through December 31, 1996, and the unaudited financial
statements of LLC for the period January 1, 1997 to September 30, 1997, (which
financial statements, including, without limitation, any notes thereto and
reports thereon are hereinafter collectively called the "Arkona Financial
Statements") are attached hereto at Schedule 5.09 and are, to the best present
knowledge of Arkona, complete and correct, fairly present the financial
position of LLC and the results of operations as of the respective dates and
for the periods indicated thereon. To the best of Arkona's knowledge, LLC
does not have any material liability or obligation, fixed, contingent, known,
unknown or otherwise, not reflected in the balance sheet included in the
Arkona Financial Statements, and all provisions, reserves and allowances
provided for therein are adequate, except for liabilities or obligations
incurred between September 30, 1997 and the date of this Agreement in the
ordinary and usual course of business consistent with the representations and
warranties set forth here in and that would not have been incurred between the
date here of and the Effective Date. The unaudited portion of the Arkona
Financial Statements has been prepared such that an unqualified (except as to
going concern) audit opinion may be expressed thereon.
Section 5.10. No Adverse Changes. From September 30, 1997 to the date
of this Agreement to the best of its knowledge and except as disclosed in
Schedule 5.10 hereto and except as otherwise specifically permitted herein:
(a) Arkona and LLC have not sustained any damage, destruction or loss,
by reason of fire, explosion, earthquake, casualty, labor trouble, requisition
or taking of property by any government or agency thereof, windstorm, embargo,
riot, act of God or the public enemy, flood, volcanic eruption, accident,
other calamity or other similar or dissimilar event (whether or not covered by
insurance) adversely affecting the business, properties, financial condition
or operations of Arkona or LLC taken as a whole;
(b) there have been no changes in the condition (financial or
otherwise), business, net worth, assets, properties, liabilities or
obligations (fixed, contingent, known, unknown or otherwise) of Arkona or LLC
which in the aggregate have had or may have a material adverse effect on the
business, properties, financial condition or operations of Arkona or LLC,
taken as a whole, and there has been no occurrence, circumstance or
combination thereof which might reasonably be expected to result in any such
adverse effect before or after the Effective Date; and
(c) the Board of Directors of Arkona has taken all necessary action so
that Arkona has performed all of the acts specified in Sections 7.02 (a), (c)
and (o) hereof and have refrained from performing any of the acts specified in
Sections 7.02 (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n) and
(p) hereof.
Section 5.11. Arkona Employee Plans and Agreements. Arkona has neither
maintained, contributed to, been required to contribute to, nor is party to or
a participating employer in, any pension, profit-sharing, deferred
compensation, retirement, bonus, stock purchase, stock option, severance,
hospitalization, insurance, welfare or other plan, program or arrangement,
whether written or oral, including, without limitation, any multi-employer
employee pension benefit or welfare benefit plan providing benefits to any
employee, former employee or dependent of such employee.
Section 5.12. Full Disclosure. To the best of Arkona's present
knowledge, information, and belief, the information furnished by Arkona, or by
any of the officers, directors, employees, agents, accountants or
representatives of Arkona to Thorsden or TAC pursuant to this Agreement
(whether furnished prior to, at, or subsequent to the date hereof), the
information contained in the exhibits and Schedules referred to in this
Agreement, and the other information furnished to Thorsden or TAC by Arkona,
or by any of the officers, directors, employees, agents, accountants or
representatives of Arkona at any time prior to the Effective Date (pursuant to
the request of Thorsden or TAC or otherwise), does not and will not contain
any untrue statement of a material fact and does not and will not omit to
state any material fact necessary to make all such information not misleading.
Section 5.13. Taxes. Arkona has not prepared (or caused to be prepared)
nor filed with any federal, state, provincial, municipal or local authorities
(within the U.S. or otherwise) a tax return.
Section 5.14. Condition of Assets. All of the properties and assets of
Arkona are in good operating condition, free from any material defect.
Section 5.15. Title to Assets. Arkona has good and marketable title to
all of its properties and assets, free and clear of any and all liens,
encumbrances, security agreements, equities, options, claims, charges,
pledges, restrictions, encroachments, defects in title and easements. As of
the Effective Date, Arkona will have good and marketable title to such
properties and assets, free and clear of any and all liens, encumbrances,
security agreements, equities, options, claims, charges, pledges,
restrictions, encroachments, defects in title and easements.
Section 5.16. Prepaid Items, etc. The prepaid items and deferred
charges recorded on LLC's balance sheet included in the Arkona Financial
Statements constitute a full and complete presentation of each and every
material prepaid item and deferred charges which Arkona and LLC are entitled
to list on the balance sheet.
Section 5.17. Intellectual Property. To the best present knowledge,
information and belief, Schedule 5.17 constitutes a true and complete list of
all material intellectual property rights of Arkona. Except as set forth in
Schedule 5.17, there are no registrations pending or registrations secured for
any copyright or trademark of Arkona and no patents have been applied for or
issued relating to such technology. The Arkona technology is in the research
and development stage and there can be no assurance that technology developed
using Arkona's existing intellectual property rights will be entitled to
patent protection or that commercially marketable products will be developed
as a result. To the best present knowledge, information and belief, except as
set forth in Schedule 5.17, hereto, Arkona is not required to pay any royalty,
license fee or similar type of compensation in connection with the conduct of
its business as it now or heretofore has been conducted for the past six
months. To the best of Arkona's present knowledge, information and belief,
the operations of Arkona do not infringe, and no one has asserted that such
operations do infringe, any patent, patent application, copyright, trademark,
trade name, service mark, trade secret or other intellectual property right of
anyone.
Section 5.18. Intentionally Omitted.
Section 5.19. Brokers. To the best present knowledge, information and
belief, Arkona has not expressly or impliedly engaged any broker, finder or
agent with respect to this Agreement or any transaction contemplated hereby.
Section 5.20. Contracts. To the best present knowledge, information and
belief, Schedule 5.20 hereto constitutes a true and complete list of each
contract or agreement requiring annual payments or receipts of in excess of
$10,000, to which Arkona is a party or bound thereby in any respect,
including, but not limited to, each such contract which is:
(a) a license or a lease;
(b) a contract, agreement or commitment for the purchase, sale or
lease of materials, equipment, real or personal property, capital assets or
supplies;
(c) a contract, agreement or commitment for the sale by Arkona of
products or the performance of any services;
(d) a management, advisory or collective bargaining agreement or a
non-competition agreement;
(e) a contract or agreement with an agent, dealer or sales
representative or franchises;
(f) a contract or agreement with employees, consultants,
stockholders, directors or officers, or any agreement relating to a power of
attorney;
(g) a loan or guaranty agreement, credit agreement, note or other
evidence of indebtedness, forward contract, consignment agreement, custody
agreement, or indenture or instrument evidencing liens or secured
transactions;
(h) a contract, license or other agreement relating to a patent,
invention or discovery (whether or not patentable), trade secret, trademark,
service mark, certification mark, trade name or copyright or application for
or registration of any of the foregoing; or
(i) a contract of insurance.
Schedule 5.20 also includes all agreements (without regard to dollar amount of
annual payments or receipts) (i) with sales representatives, distributors,
consultants and licensors, and (ii) with officers or directors of Arkona, or
with any holder of 5% or more of Arkona Common Stock, or any affiliate
thereof. As used in this Agreement, the terms "contract" and "agreement" mean
and include every contract, agreement, commitment, option, trust,
understanding and promise, whether written or oral. Each of the contracts or
agreements listed in Schedule 5.20 hereto is in full force and effect, is a
valid, binding and enforceable obligation by or against Arkona, as the case
may be, and no event has occurred which constitutes or, with the giving of
notice or passage of time, or both, would constitute, a default thereunder,
except as disclosed in such Schedule. None of such contracts is subject to
renegotiation by governmental authorities. Arkona has delivered or caused to
be delivered to Thorsden or TAC correct and complete copies of each contract
or agreement listed in Schedule 5.20 hereto and all modifications or
amendments thereto.
Section 5.21. Intentionally Omitted.
Section 5.22. Litigation. There is no litigation, suit, proceeding,
action, claim or investigation, at law or in equity, pending or threatened
against or affecting Arkona or involving any of its property or assets, before
any court, agency, authority or arbitration tribunal, including, without
limitation, any product liability, workers' compensation or wrongful dismissal
claims, or claims, actions, suits or proceedings relating to toxic materials,
hazardous substances, pollution or the environment. To the best of Arkona's
present knowledge and belief, there are no facts which, if known to customers,
governmental authorities or other persons, might result in any such
litigation, suit, proceeding, action, claim or investigation. Arkona is not
subject to or in default with respect to any notice, order, writ, injunction
or decree of any court, agency, authority or arbitration tribunal.
Section 5.23. Compliance with Laws. To the best of its knowledge and
belief, Arkona has complied with all laws, municipal by-laws, regulations,
rules, orders, judgments, decrees and other requirements and policies imposed
by any governmental authority applicable to it, its properties or the
operation of its business, except where the failure to comply will not have a
material adverse effect on the business, properties, financial condition or
earnings of Arkona. Arkona has not received any notice or citation for
noncompliance with any of the foregoing, and there exists no condition,
situation or circumstance, nor has there existed such a condition, situation
or circumstance, which, after notice or lapse of time, or both, would
constitute noncompliance with or give rise to future liability with regard to
any of the foregoing.
Section 5.24. Licenses, Permits and Approvals. To the best of its
knowledge and belief, Arkona has all material licenses, permits, approvals,
qualifications or the like, issued or to be issued to Arkona by any government
or any governmental unit, agency, body or instrumentality, whether federal,
state, provincial, municipal or local (within the U.S. or otherwise) necessary
for the conduct of its trade or business and all such items are in full force
and effect. No registration with, approval by, consent or clearance from or
pre-notification to any governmental agency is required in connection with the
execution and performance of this Agreement by Arkona.
Section 5.25. Survival of Representations and Warranties of Arkona. The
representations and warranties of Arkona made in this Agreement are correct,
true and complete as of the date hereof and will be correct, true and complete
as at the Effective Date with the same force and effect as though such
representations and warranties had been made at the Effective Date. The
representations and warranties of Arkona shall not survive the Effective Date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THORSDEN AND TAC
Thorsden and TAC jointly and severally represent and warrant to Arkona
that:
Section 6.01. Organization and Capitalization of Thorsden. Thorsden is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware with an authorized capital consisting solely of
(a) 20,000,000 shares of Thorsden Common Stock, $.001 par value, of which
2,000,000 shares are issued and outstanding; and (b) 1,000,000 shares of
preferred stock, $0.001 par value, none of which are issued and outstanding.
All of such issued and outstanding shares of stock are duly authorized,
validly issued, fully paid and nonassessable. There are no other equity
securities of any class of Thorsden authorized, issued, reserved for issuance
or outstanding. There are no outstanding options, warrants, agreements or
rights to subscribe for or to purchase, or commitments to issue, shares of
Thorsden Capital Stock. Except for TAC, Thorsden does not own directly or
indirectly, any outstanding capital stock or securities convertible into
capital stock of any other corporation or any participating interest in any
partnership, joint venture or other business enterprise. All shares and
warrants and other securities of Thorsden that are presently outstanding were
issued in full compliance with the registration provisions of the Securities
Act and applicable state securities laws or pursuant to an exemptions
therefrom. The 14,000,000 shares of Thorsden Common Stock to be exchanged for
the conversion of the Arkona Common Stock pursuant to Section 4.01(a) above
shall be apportioned among the Shareholders of Arkona as set forth in Schedule
6.01.
Section 6.02. Organization and Capitalization of TAC. TAC is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Utah, with an authorized capital consisting solely of
50,000 shares of TAC's Common Stock, of which 100 shares are issued and
outstanding and owned by Thorsden. All of such are duly authorized, validly
issued, fully paid and nonassessable.
Section 6.03. Power and Authority. Thorsden and TAC each has all
requisite power and authority to own, lease and operate its properties and to
conduct its business as presently conducted and as proposed to be conducted
and is duly qualified or licensed as a foreign corporation in good standing in
each jurisdiction in which the character of its properties or the nature of
its business activities require such qualification (except where the failure
to be so qualified will not have a material adverse effect on the business,
properties, financial condition or earnings of Thorsden or TAC, as the case
may be).
Section 6.04. Certificates of Incorporation, By-Laws and Minutes of
Thorsden and TAC. The copies of the Articles of Incorporation of Thorsden and
TAC, respectively certified by the Secretary of State of Delaware and by the
Lieutenant Governor of the State of Utah, and the by-laws of Thorsden and TAC,
certified by their respective Secretaries, are true, complete and correct and
the Minute Books of Thorsden and TAC which are complete and accurate in all
material respects, contain a record of all meetings and other corporate
actions of their respective shareholders and Boards of Directors, copies of
all of which are attached hereto at Schedule 6.04.
Section 6.05. Authority for Agreement. The Board of Directors of each
of Thorsden and TAC has approved this Agreement and has authorized the
execution and delivery hereof. Thorsden and TAC each have full power,
authority and legal right to enter into this Agreement and to consummate the
transactions contemplated hereby.
Section 6.06. Subscription Agreement. On the Mailing Date of the
Subscription Agreement to the shareholders of Arkona, the information with
respect to Thorsden and TAC set forth therein (a) will comply in all material
respects with the provisions of the Securities Act and the Exchange Act, and
the rules and regulations of the Commission thereunder, and (b) will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements contained
therein not misleading. At all times subsequent to the Mailing Date up to
and including the Effective Date, the information with respect to Thorsden and
TAC set forth in the Subscription Agreement and all amendments and supplements
thereto (a) will comply in all material respects with the provisions of the
Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder, and (b) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements contained therein not misleading.
Section 6.07. No Violation to Result. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby:
(a) are not in violation or breach of, do not conflict with or
constitute a default under, and will not accelerate or permit the acceleration
of the performance required by, any of the terms of the charter documents of
by-laws of Thorsden and TAC or any note, debt instrument, security agreement,
mortgage, lease or license, or any other contract or agreement (collectively,
the "Thorsden Agreement(s)"), written or oral, to which Thorsden or TAC is a
party or by which Thorsden or TAC or any of their respective properties or
assets are bound;
(b) will not be an event which, after notice or lapse of time or
both, will result in any such violation, breach, conflict, default, or
acceleration;
(c) will not result in violation under any law, judgment, decree,
order, rule, regulation or other legal requirement of any governmental
authority, court or arbitration tribunal whether federal, state, provincial,
municipal or local (within the U.S. or otherwise) and applicable to Thorsden
or TAC; and
(d) will not result in the creation or imposition of any lien,
possibility of lien, encumbrance, security agreement, equity, option, claim,
charge, pledge or restriction in favor of any third person upon any of the
properties or assets of Thorsden or TAC.
Section 6.08. No Existing Defaults. Thorsden is not in default:
(a) under any of the terms of any Thorsden Agreement;
(b) under any law, judgment, decree, order, rule regulation or other
legal requirement or any governmental authority, court or arbitration tribunal
whether federal, state, provincial, municipal or local (within the U.S. or
otherwise) and applicable to it or to any of its properties or assets; or
(c) in the payment of any of its monetary obligations or debts.
To the best of Thorsden's knowledge and belief, there exists no condition
or event which, after notice or lapse of time or both, would constitute a
default in connection with any of the foregoing.
Section 6.09. Financial Statements. The unaudited financial statements
of Thorsden as of and for the twelve month period ending March 31, 1997,
(which financial statements, including, without limitation, any notes thereto
and reports thereon are hereinafter collectively called the "Thorsden
Financial Statement") and for the six month period ending September 30, 1997
(hereinafter called "Thorsden Interim Financial Statements") copies of which
are attached hereto at Schedule 6.09, are complete and correct, fairly present
the financial position of Thorsden and the results of operations as of the
respective dates and for the periods indicated thereon and have been prepared
in accordance with GAAP. Thorsden does not have any material liability or
obligation, fixed, contingent, known, unknown or otherwise, not reflected in
the balance sheet included in the Thorsden Financial Statements and the
Thorsden Interim Financial Statements, and all provisions, reserves and
allowances provided for therein are adequate, except for liabilities or
obligations incurred between September 30, 1997 and the date of this Agreement
in the ordinary and usual course of business consistent with the
representations and warranties set forth therein and that would not have been
incurred between the date hereof and the Effective Date. The Thorsden
Financial Statement and Thorsden Interim Financial Statements have been
prepared such that an unqualified (except as to going concern) audit opinion
may be expressed thereon.
Section 6.10. Securities and Exchange Commission Filings. Thorsden's
reports filed with the Commission pursuant to the Exchange Act are complete
and correct in all material respects and do not contain any untrue statement
of a material fact and do not omit to state any material fact necessary to
make all such information not misleading.
Section 6.11. No Adverse Changes. From September 30, 1997 to the date
of this Agreement, except as disclosed in Thorsden's Quarterly Report on Form
10-QSB for the quarter ended September 30, 1997 (true copies of which have
been provided to Arkona), except as otherwise permitted herein:
(a) Thorsden and TAC have not sustained any damage, destruction or
loss, by reason of fire, explosion, earthquake, casualty, labor trouble,
requisition or taking of property by any government or agency thereof,
windstorm, embargo, riot, act of God or the public enemy, flood, volcanic
eruption, accident, other calamity or other similar or dissimilar event
(whether or not covered by insurance) adversely affecting the business,
properties, financial condition or operations of Thorsden or TAC taken as a
whole;
(b) other than in the usual course of Thorsden's business, consistent
with the prior year's operations, there have been no changes in the condition
(financial or otherwise), business, net worth, assets, properties, liabilities
or obligations (fixed, contingent, known, unknown or otherwise) or Thorsden
and TAC which in the aggregate have had or may have a material adverse effect
on the business, properties, financial condition or operations of Thorsden and
TAC, taken as a whole, and there has been no occurrence, circumstance or
combination thereof which might reasonably be expected to result in any such
adverse effect before or after the Effective Date; and
(c) each officer of Thorsden and TAC has taken all necessary action
so that Thorsden and TAC have performed all of the acts specified in Sections
7.02 (a), (c) and (o) hereof and have refrained from performing any of the
acts specified in Sections 7.02(b), (d), (e), (f), (g), (h), (i), (j), (k),
(l), (m), (n) and (p) hereof.
Section 6.12. Full Disclosure. The information furnished by Thorsden
and TAC, or by any of the directors, officers, employees, agents, accountants
or representatives of Thorsden or TAC to Arkona pursuant to this Agreement
(whether furnished prior to, at, or subsequent to the date hereof), the
information contained in the exhibits and Schedules referred to in this
Agreement, and the other information furnished to Arkona by Thorsden or TAC,
or by any of the directors, officers, employees, agents, accountants or
representatives of Thorsden or TAC at any time prior to the Effective Date
(pursuant to the request of Arkona or otherwise), does not and will not
contain any untrue statement of a material fact and does not and will not omit
to state any material fact necessary to make all such information not
misleading.
Section 6.13. Taxes. Except as set forth in Schedule 6.13 and except
where extensions of time to file have been duly and properly obtained (all of
which extensions are described on Schedule 6.13), Thorsden has prepared (or
caused to be prepared) and timely and properly filed (or caused to be timely
and properly filed) with the appropriate federal, state, provincial, municipal
or local authorities (within the U.S. or otherwise) all tax returns, information
returns and other reports required to be filed and has paid or accrued (or
caused to be so paid or accrued) in full all taxes, interest, penalties,
assessments or deficiencies, if any, due to, or claimed to be due by, any
taxing authority. The balance sheets included in the Thorsden Interim
Financial Statements include appropriate provisions for all taxes, interest,
penalties, assessments or deficiencies, if any, for the periods indicated
thereon to the extent not theretofore paid. Thorsden has not executed or
filed with any taxing authority any agreement extending the period for
assessment or collection of any taxes. Thorsden is not a party to any pending
action or proceeding, nor is any such action or proceeding threatened, by any
governmental authority for the assessment or collection of taxes, and no claim
for assessment or collection of taxes has been asserted against Thorsden, and
during the course of any audit currently in process or not completed, no
issues have been suggested by any representative of any such governmental
authority that, if asserted, would result in a proposed assessment of taxes,
interest or penalties, against Thorsden. Thorsden and TAC acknowledge and
agree that it is the intention of all parties to this Agreement to qualify
this Merger transaction as a "Reverse Triangular Merger" within the terms and
conditions of Section 368(a)2(E) of the U.S. Internal Revenue Code. Thorsden
and TAC shall not take nor attempt to take any action which would jeopardize
the qualification of the Merger as a Reverse Triangular Merger.
Section 6.14. Litigation. There is no litigation, suit, proceeding,
action, claim or investigation, at law or in equity, pending or threatened
against or affecting Thorsden or involving any of its property or assets,
before any court, agency, authority or arbitration tribunal, including,
without limitation, any product liability, workers' compensation or wrongful
dismissal claims, or claims, actions, suits or proceedings relating to toxic
materials, hazardous substances, pollution or the environment. To the best of
Thorsden's knowledge and belief, there are no facts which, if known to
customers, governmental authorities or other persons, might result in any such
litigation, suit, proceeding, action, claim or investigation. Thorsden is not
subject to or in default with respect to any notice, order, writ, injunction
or decree of any court, agency, authority or arbitration tribunal.
Section 6.15. Thorsden Securities. As and when required by the
provisions of this Agreement and subject to the terms and conditions hereof,
Thorsden will reserve for issuance and issue shares of Thorsden Common Stock.
The shares of Thorsden Common Stock to be issued in accordance with this
Agreement will have been duly authorized and upon such issuance will be
validly issued, fully paid and nonassessable.
Section 6.16. Compliance with Laws. To the best of its knowledge and
belief, Thorsden has complied with all laws, municipal by-laws, regulations,
rules, orders, judgments, decrees and other requirements and policies imposed
by any governmental authority applicable to it, its properties or the
operation of its business, except where the failure to comply will not have a
material adverse effect on the business, properties, financial condition or
earnings of Thorsden. Thorsden has not received any notice or citation for
noncompliance with any of the foregoing, and there exists no condition,
situation or circumstance, nor has there existed such a condition, situation
or circumstance, which, after notice or lapse of time, or both, would
constitute noncompliance with or give rise to future liability with regard to
any of the foregoing.
Section 6.17. Insurance. Thorsden has no policies of insurance
currently in force.
Section 6.18. Survival of Representations and Warranties of Thorsden and
TAC. The representations and warranties of each of Thorsden and TAC made in
this Agreement are correct, true and complete as of the date hereof and will
be correct, true and complete as at the Effective Date with the same force and
effect as though such representations and warranties had been made at the
Effective Date. The representations and warranties of Thorsden and TAC shall
survive the Effective Date.
ARTICLE VII
CONDUCT AND TRANSACTIONS PRIOR TO CLOSING & CERTAIN AGREEMENTS
Section 7.01. Access to Properties and Records. (a) Each Constituent
Corporation shall afford to the officers, employees, attorneys, accountants
and other authorized representatives of the other, free and full access to all
of its assets, properties, books and records, in order to afford each
Constituent Corporation as full an opportunity of review, examination and
investigation as it shall desire to make of the affairs of the other, and each
shall be permitted to make extracts from, or take copies of, such books,
records (including the stock record and minute books) or other documentation
or to obtain temporary possession of any thereof as may be reasonably
necessary; and each shall furnish or cause to be furnished to the other such
reasonable financial and operating data and other information about its
business, properties and assets which any of such Constituent Corporation's
respective officers, employees, attorneys, accountants or other authorized
representatives may request.
(b) Until the Merger has been consummated (and if the Merger is not
consummated, at all times hereafter), Arkona, Thorsden and TAC will not
disclose or use any information obtained in the course of their respective
investigations. If the proposed Merger is not consummated, Thorsden and TAC
will return all returnable data to Arkona and Arkona will return all
returnable data to Thorsden and TAC. Such obligation of confidentiality shall
not extend to any information which is shown to have been previously known by
Arkona or Thorsden and TAC, as the case may be, or generally known to others
engaged in the same trade or business as Arkona or Thorsden and TAC or made
known to Arkona or Thorsden and TAC or the public by a third party.
Section 7.02. Interim Covenants of each Constituent Corporation. From
the date of this Agreement until the Effective Date, except to the extent
expressly permitted by this Agreement or otherwise consented to by an
instrument in writing signed by each other Constituent Corporation, each
Constituent Corporation shall take all necessary action so that:
(a) such Constituent Corporation shall keep its business and
organization intact and shall not take or permit to be taken or do or suffer
to be done anything other than in the ordinary course of its business as the
same is presently being conducted, and shall use its best efforts to keep
available the services of its directors, officers, employees and agents and to
maintain the goodwill and reputation associated with its business;
(b) such Constituent Corporation shall not make any change in its
constituent documents;
(c) such Constituent Corporation shall exercise its best efforts to
maintain all of its properties and assets, tangible or intangible, in good
operating condition and repair, and take all steps necessary to keep its
operations functioning properly;
(d) Neither Thorsden or a Constituent Corporation shall purchase,
sell, lease or dispose of or make any contract for the purchase, sale, lease
or disposition of or subject to lien or security interest any properties or
assets other than in the ordinary and usual course of its business consistent
with the representations and warranties contained herein and not in breach of
any of the provisions of this Article VII, in each case for a consideration at
least equal to the fair value of such property or asset;
(e) Neither Thorsden or a Constituent Corporation shall grant any
salary increase to, or increase the draw of, any of its officers or directors,
or enter into any new, or amend or alter any existing, bonus, incentive
compensation, deferred compensation, profit sharing, retirement, pension,
stock option, group insurance, death benefit or other fringe benefit plan,
trust agreement or other similar or dissimilar arrangement, or any employment
or consulting agreement;
(f) Neither Thorsden or a Constituent Corporation shall incur any
bank indebtedness or make any borrowings, except in the ordinary course of its
business, or issue any commercial paper;
(g) Neither Thorsden or a Constituent Corporation shall pay any
obligation or liability (fixed or contingent) or discharge or satisfy any lien
or encumbrance, or settle any claim, liability or suit pending or threatened
against it or any of its properties, except for current liabilities included
in the Interim Financial Statements of current liabilities incurred between
September 30, 1997 and the Effective Date in the ordinary and usual course of
business of either Thorsden or a Constituent Corporation consistent with their
respective representations and warranties contained herein and not in breach
of any of the provisions of this Article VII except that either Thorsden or a
Constituent Corporation may pay reasonable attorney's fees in connection with
the consummation of the Merger described herein;
(h) Neither Thorsden or a Constituent Corporation shall enter into
any leases;
(i) Neither Thorsden or a Constituent Corporation shall, without
first obtaining consent of the other, enter into any contract, agreement or
commitment, including without limiting the generality of the foregoing, any
contract, agreement or commitment for the purchase of any materials or
supplies, if such contract, agreement or commitment exceeds $10,000
individually; provided, however, either Thorsden or a Constituent Corporation
may enter into contracts, in the course of business, which provide for either
Thorsden or a Constituent Corporation to provide its services to unaffiliated
third parties or to perform same;
(j) Neither Thorsden or a Constituent Corporation shall further
encumber or permit to be further encumbered any of their properties or assets
except in the ordinary course of business;
(k) Neither Thorsden or a Constituent Corporation shall form any
subsidiary nor shall it issue, grant, sell, redeem, combine, change or
purchase any shares, notes or other securities or make any commitments to do
so;
(l) Neither Thorsden or a Constituent Corporation shall effect any
subdivision of its outstanding capital stock, purchase or redeem any capital
stock, or declare, make or pay any dividend, distribution or payment in
respect of its capital stock;
(m) Neither Thorsden or a Constituent Corporation shall grant or
issue any options, warrants or other rights to acquire any capital stock or
other of its equity securities, whether by conversion or otherwise, or make
any commitment to do so;
(n) Neither Thorsden or a Constituent Corporation shall, other than
in the ordinary course of business, curtail purchases or accelerate shipments
beyond customer requirements nor shall it modify, amend, cancel or terminate
any existing contracts or agreements; and
(o) Such Constituent Corporation or Thorsden shall not take any
action which would, as at the Effective Date, cause any warranties or
representations contained herein and applicable to it to be false or
misleading in any material respect.
Notwithstanding the foregoing, the parties hereto understand and agree
that (i) Thorsden and Arkona must be consulted on every material issue and
matter which may affect the business or operations of Thorsden or the
Constituent Corporation after the date of this Agreement, and (ii) no such
issue or matter shall be acted on without consent of Arkona and Thorsden.
Section 7.03. Approval of Stockholders of Constituent Corporations. The
Board of Directors of TAC and Arkona will submit this Agreement to their
respective stockholders for their adoption and will recommend to their
stockholders such adoption at a meeting thereof to be duly called and held as
soon as practicable. The Constituent Corporations will use their best efforts
in accordance with applicable law to obtain the necessary adoption of this
Agreement by their stockholders and will take, as soon as practicable, such
other and further actions as may be required by law to effectuate the Merger.
In obtaining the authorization and approval of their stockholders, the
Constituent Corporations shall comply with all applicable federal and state
securities and other laws in connection with the transactions to be effected
hereunder. The Constituent Corporations shall not distribute any material to
its respective stockholders in connection with this Agreement and the
transactions contemplated hereby other than materials contained in the
Subscription Agreement.
Section 7.04. Intentionally Omitted.
Section 7.05. Mailing Date.
(a) On or prior to the Mailing Date, Thorsden and TAC shall have
received the following:
(i) An opinion dated as of the Mailing Date, of Durham, Evans,
Jones & Pinegar, counsel to Arkona, in form and substance satisfactory to
Thorsden and TAC, concerning the standing, capitalization, due authorization
and enforceability, and, to the knowledge of counsel, compliance with this
Agreement and litigation status of Arkona.
(ii) A certificate of Arkona's President dated as of the Mailing
Date, in form and substance satisfactory to Thorsden and TAC, stating that (A)
to the best present knowledge of Arkona, Arkona has complied in all material
respects with the agreements contained herein on its part to be performed on
or prior to such date, and (B) to the best present knowledge of Arkona, the
representations and warranties of Arkona contained herein are true and correct
in all material respects at and as of the date of such certificate, except to
the extent affected by the transactions contemplated hereby and by the
operations of Arkona, as permitted by the provisions of Section 7.02 prior to
the Mailing Date, with the same effect as though such representations and
warranties had been made at and as of such date.
(iii) A certificate of Arkona's President dated as of the
Mailing Date, in form and substance satisfactory to Thorsden and TAC, stating
that all required approvals, consents and waivers have been obtained,
specifically identifying such consents or waivers and attaching copies thereof
to such certificate.
(b) On or prior to the Mailing Date, Arkona shall have received the
following:
(i) An opinion dated as of the Mailing Date, from Hand & Hand, a law
corporation, counsel to Thorsden and TAC:
(1) Covering those matters referenced in Section 7.05(a)(i) but
with respect to Thorsden and TAC instead of Arkona, and to the effect that if
the Merger is consummated in accordance with the terms of this Agreement the
shares of Thorsden Common Stock to be issued in the Merger will be duly
authorized, validly issued, fully paid and non assessable, all to be in form
and substance satisfactory to Arkona.
(2) That the Thorsden Common Stock to be issued in connection
with the Merger will be exempt from the registration requirements of the
Securities Act.
(ii) A certificate of the President of Thorsden for and on behalf of
Thorsden and TAC, dated as of the Mailing Date, in form and substance
satisfactory to Arkona, stating that (A) Thorsden and TAC have complied in all
material respects with the agreements contained herein on their part to be
performed on or prior to such date, and (B) the representations and warranties
of Thorsden and TAC contained herein are true and correct in all material
respects at and as of the date of such certificate, except to the extent
affected by the transactions contemplated hereby and by the operations of
Thorsden and TAC as permitted by the provisions of Section 7.02 prior to the
Mailing Date, with the same effect as though such representations and
warranties had been made at and as of such date.
(iii) A certificate of the President of Thorsden for and on behalf of
Thorsden and TAC's President dated as of the Mailing Date, in form and
substance satisfactory to Arkona, stating that all required approvals,
consents and waivers have been obtained, specifically identifying such
consents or waivers and attaching copies thereof to such certificate.
Section 7.06. Information. Thorsden and the Constituent Corporations
will furnish each other with all information concerning themselves reasonably
required for inclusion in the Subscription Agreement or any application made
by Thorsden or a Constituent Corporation to the Commission or any governmental
or regulatory body in connection with the transactions contemplated by this
Merger Agreement.
Section 7.07. Preparation of Subscription Agreement. As soon as
practicable after execution of this Agreement, Thorsden will prepare a
Subscription Agreement to be provided to the shareholders of Arkona.
Section 7.08. Public Announcements. Promptly after the execution of
this Agreement, Thorsden shall issue a press release in a form reasonably
satisfactory to the Arkona. Thereafter, Thorsden and Arkona will consult with
each other with respect to any announcement to the public or any statement to
their employees generally concerning or relating to the Merger. Neither
Thorsden nor Arkona will make any announcement to the public without the prior
written consent of the other, except for announcements which Thorsden or
Arkona believe on the advice of their respective counsel to be required by
applicable securities laws.
Section 7.09. Notice of Breach.
(a) Thorsden and TAC will immediately give notice to Arkona of the
occurrence of any event or the failure of any event to occur that results in a
breach of any representation or warranty by Thorsden and TAC or a failure by
Thorsden and TAC to comply with any covenant, condition or agreement contained
herein.
(b) Arkona will immediately give notice to Thorsden and TAC of the
occurrence of any event or the failure of any event to occur that results in a
breach of any representation or warranty by Arkona or a failure by Arkona to
comply with any covenant, condition or agreement contained herein.
Section 7.10. Representations. Thorsden, TAC and Arkona (a) will take
all action necessary to render accurate as of the Effective Date their
respective representations and warranties contained herein,(b) will refrain
from taking any action which would render any such representation or warranty
inaccurate in any material respect as of such time, and (c) will perform or
cause to be satisfied each covenant or condition to be performed or satisfied
by them.
Section 7.11. Negotiations with Third Parties. Arkona will not, without
the prior written approval of Thorsden, furnish any information to, or
initiate or participate in discussions or negotiations with, third parties
relating to any merger, sale or other disposition of any substantial part of
its assets or Arkona Common Stock or any other sale by officer or directors of
Arkona of any of their shares of its Stock, except as required by fiduciary
obligations. For purpose of this Agreement the term "Acquisition Proposal"
shall mean any proposal for a merger or other business combination involving
Arkona or the acquisition of any equity interest in, or a substantial portion
of the assets of Arkona other than the transactions contemplated by this
Agreement.
Section 7.12. Amendments to Agreement. Thorsden and the Constituent
Corporations may, by mutual agreement, amend this Agreement before or after
approval by each Constituent Corporation's stockholders, but after such
approvals no amendment may be made which changes the Merger consideration
without approval by the stockholders adversely affected by such change.
Section 7.13. Debt of Thorsden. As of the Effective Date, Thorsden and
TAC shall have no liabilities, fixed or contingent, known or unknown.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to
the fulfillment and satisfaction of each of the following conditions, anyone
or more of which may be waived by Thorsden and TAC, on the one hand, and
Arkona, on the other hand.
Section 8.01. Stockholder Approval. On or before the Effective Date,
the stockholder of TAC shall have adopted and approved this Agreement.
Section 8.02. Shareholder Approval. On or before the Effective Date,
the Shareholders of Arkona shall have adopted and approved this Agreement.
Section 8.03. Securities Filings. At or prior to the time required any
required approvals of state securities administrators shall have been
obtained. At the Effective Date, no stop order or similar restraining order
shall have been threatened or entered by the Commission or any state
securities administrator and Thorsden shall have filed with the Commission all
reports required to be filed under the Exchange Act for the two (2) year
period prior to the Effective Date.
Section 8.04. Mailing Date Documents. Thorsden, TAC and Arkona shall
each have received on the Mailing Date the documents which they are to receive
under Section 7.05.
Section 8.05. Regulatory Approvals. On or before the Effective Date,
all applicable approvals of governmental regulatory authorities of the United
States of America or of any state or political subdivision thereof required to
consummate the Merger shall have been obtained.
Section 8.06. Pre-Merger Notification. All applicable governmental
pre-merger filing and waiting period requirements of governmental authorities
of the United State of America or of any state or political subdivision
thereof.
Section 8.07. Private Placement. Thorsden shall have completed a
private placement of no more than 4,000,000 shares of Thorsden Common Stock
for consideration in cash and other property valued at no less than
$2,000,000. The cash portion of the consideration of Thorsden shall be no
less than $958,000. To the extent that Thorsden accepts property, it shall
consist of shares of common stock of one or more publicly traded companies
reasonably acceptable to Arkona, together with the representation or covenant
of the purchasers that such shares may be liquidated by Thorsden on or before
January 31, 1998 for consideration to Thorsden of no less than $1,000,000.
ARTICLE IX
CONDITIONS TO THORSDEN AND TAC OBLIGATIONS
All obligations of Thorsden and TAC under this Agreement are subject to
the fulfillment and satisfaction, prior to or at the time at which the
Effective Date is scheduled to occur, of each of the following conditions,
anyone of more of which may be waived by Thorsden and TAC.
Section 9.01 Representations and Warranties True at the Effective Date.
At the Effective Date, the representations and warranties of Arkona contained
in this Agreement will be true and correct in all material respects at and as
of such time, except to the extent affected by the transactions contemplated
here by and by the operations of Arkona as permitted by the provisions of
Section 7.02 from the date hereof to the Effective Date, and at the Effective
Date, Arkona shall have delivered to Thorsden and TAC a certificate to such
effect signed by the President of Arkona.
Section 9.02. Arkona's Performance. Each of the obligations of Arkona
to be performed by it on or before the Effective Date pursuant to the terms of
this Agreement shall have been duly performed at the Effective Date, and at
the Effective Date, Arkona shall have delivered to Thorsden and TAC a
certificate to such effect signed by the President of Arkona.
Section 9.03. Authority. All action required to be taken by, or on the
part of, Arkona to authorize the execution, delivery and performance of this
Agreement by Arkona and the consummation of the transactions contemplated
hereby shall have been duly and validly taken by the officers and directors of
Arkona.
Section 9.04. Opinion of Arkona's Counsel. Thorsden and TAC shall have
been furnished an opinion or opinions of Durham, Evans, Jones & Pinegar,
counsel to Arkona, or other counsel acceptable to Thorsden, dated the
Effective Date, in form and substance satisfactory to Thorsden and TAC
concerning those matters referenced in Section 7.05(a)(i).
Section 9.05. Intentionally Omitted.
Section 9.06. No Material Adverse Change. There shall have been,
between the date hereof and the Effective Date, (i) no material adverse change
in the condition, financial or otherwise, of Arkona, (it being understood that
Arkona has incurred substantial losses resulting from its research and
development activities since its inception) and such losses shall not be
deemed a material adverse change, (ii) no resignations or terminations of, or
indications of an intention or plan to resign, employment by any significant
employee of Arkona, and (iii) no terminations of, or indications of an
intention or plan to terminate, the use to a material extent of the services
of Arkona; and at the Effective Date Arkona shall have delivered to Thorsden
and TAC a certificate to such effect signed by the President of Arkona.
Section 9.07. Assignment of Contracts. Arkona shall have received
consent under all material contracts, agreements, commitments, understandings
and instruments to which Arkona is a party or by which it is bound which
require the consent of any other party or person to the assignment thereof
either by the terms thereof or as a matter of law for their assumption by the
Surviving Corporation in the Merger.
Section 9.08. Appraisal Rights. No more than 1% of the Shareholders of
Arkona shall have elected the appraisal remedy provided by Part 13 of the Utah
Revised Business General Corporation Act.
Section 9.09. Representations and Warranties of Arkona Shareholders.
Thorsden shall have received written representations and warranties from each
of the Arkona shareholders, in form and substance satisfactory to Thorsden, as
follows: (i) such shareholders are obtaining the shares of Thorsden Common
Stock for such shareholder's own account for investment with no present
intention of distributing or selling any of the shares or any interest
therein, (ii) such shareholders are residents of the state or country set
forth therein, (iii) such shareholders have received a copy of, read and
understands the Subscription Agreement, (iv) such shareholders have had an
opportunity to ask questions of and receive answers from Thorsden and TAC
regarding Thorsden and TAC and the Merger, (v) such shareholders acknowledge
that he or she is receiving restricted securities, which are subject to stop
transfer instructions and restrictions on transfer, and (vi) such shareholders
acknowledge that Thorsden is under no obligation to register the sale,
transfer, or other disposition of Thorsden Common Stock received in the Merger
or to take any action necessary in order to make any exemption from
registration available for a subsequent sale or transfer.
ARTICLE X
CONDITIONS TO ARKONA OBLIGATIONS
All obligations of Arkona under this Merger Agreement are subject to the
fulfillment and satisfaction, prior to or at the time at which the Effective
Date is scheduled to occur, of each of the following conditions, any one or
more of which may be waived by Arkona.
Section 10.01. Representations and Warranties True at the Effective
Date. At the Effective Date, the representations and warranties of Thorsden
and TAC contained in this Agreement will be true and correct in all material
respects at and as of such time, except to the extent affected by the
transactions contemplated hereby, and at the Effective Date, Thorsden and TAC
shall have delivered to Arkona a certificate to such effect signed by the
President of Thorsden for and on behalf of Thorsden and TAC.
Section 10.02. Thorsden and TAC Performance. Each of the obligations of
Thorsden and TAC to be performed by it on or before the Effective Date
pursuant to the terms of this Agreement shall have been duly performed at the
Effective Date, and at the Effective Date Thorsden and TAC shall have
delivered to Arkona a certificate to such effect signed by the President of
Thorsden for and on behalf of Thorsden and TAC.
Section 10.03. Authority. All action required to be taken by, or on the
part of, Thorsden and TAC to authorize the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
shall have been duly and validly taken by the Board of Directors of each of
Thorsden and TAC.
Section 10.04. Opinion of Counsel of Thorsden and TAC. Arkona shall
have been furnished an opinion of Hand & Hand, a law corporation, counsel to
Thorsden and TAC, dated as of the Effective Date, in form and substance
satisfactory to Arkona, concerning those matters referred to in Section
7.05(b)(ii).
Section 10.05. Intentionally Omitted.
Section 10.06. No Material Adverse Change. There shall have been
between the date hereof and the Effective Date, (i) no material adverse change
in the condition, financial or otherwise, of Thorsden and TAC, other than in
the usual course of Thorsden's business, consistent with the prior year's
operations, (ii) no resignations or terminations of, or indications of an
intention or plan to resign, employment by key personnel, and (iii) no
terminations of, or indications of an intention or plan to terminate, the use
to a material extent of the products and services of Thorsden and TAC; and at
the Effective Date Thorsden and TAC shall have delivered to Arkona a
certificate to such effect signed by the President and the chief financial
officer of Thorsden and TAC.
Section 10.07. Government Approvals. All other necessary governmental
approvals required in connection with the distribution of the Thorsden Common
Stock contemplated by this Agreement shall have been obtained.
ARTICLE XI
CLOSING
Section 11.01. Closing Date and Time. The closing of the Merger and the
other transactions contemplated herein shall take place promptly after the
satisfaction or waiver of all conditions to closing set forth in Articles
VIII, IX and X hereof on October 13, 1997 or such other date as shall be
mutually determined by Thorsden and Arkona. The closing shall occur at the
offices of Durham, Evans, Jones & Pinegar, 50 South Main Street, Suite 850,
Salt Lake City, Utah 84144.
ARTICLE XII
TERMINATION AND AMENDMENT
Section 12.01. Termination. Notwithstanding anything herein or
elsewhere to the contrary, this Agreement may be terminated and the Merger
abandoned:
(a) by mutual agreement of the Board of Directors of Arkona and
Thorsden and TAC at any time prior to the Effective Date;
(b) by the Board of Directors of either Arkona or Thorsden and TAC if
the Effective Date shall not have taken place on or prior to October 31, 1997;
(c) by the Board of Directors of Thorsden and TAC at any time prior
to the Effective Date if:
(i) a material condition contained in Article VIII or IX hereof, or a
covenant of Arkona contained herein shall not be fulfilled on or before the
date on which the Effective Date is scheduled to occur or on such other date
specified for the fulfillment of such covenant or condition; or
(ii) a material default or breach of this Agreement shall be made by
Arkona; or
(iii) if any of the schedules referred to in this Agreement disclose
information about Arkona which the Board of Directors of Thorsden and TAC
shall have determined in its sole discretion exercised in good faith has a
materially adverse affect upon the business, assets, value, financial
condition or prospects of Arkona; or
(iv) since September 30, 1997 there shall be an adverse change in the
results of operations of Arkona, or any adverse change in the business,
results of operations (as compared with the same period in the preceding
year), prospects, manner of conducting the business, consolidated financial
condition or any assets of Arkona, which change is material to Arkona taken as
a whole, except as disclosed to Thorsden and TAC in writing on or prior to the
date hereof; or
(v) the Board of Directors of Thorsden shall have determined in its
sole discretion exercised in good faith that the transactions contemplated by
this Agreement have become inadvisable or impracticable by reason of the
institution or threat by state, local or federal governmental authorities or
by any other person of: (A) litigation or proceedings to restrain or prohibit
the consummation of the transactions contemplated by this Agreement or which
seeks substantial damages in connection with this Agreement or the
transactions contemplated hereby; or (B) other litigation or proceedings, the
outcome of which in the reasonable opinion of counsel for Thorsden and TAC
could have an adverse effect on the business, consolidated results of
operations, prospects, manner of conducting the business, consolidated
financial condition or any asset of Arkona or Thorsden and TAC, which effect
is material to, respectively, Arkona taken as a whole, or Thorsden and TAC,
taken as a whole; or
(d) by the Board of Directors of Arkona at any time prior to the
Effective Date if:
(i) a material condition contained in Article VIII or X hereof or a
material covenant of Thorsden or TAC contained in this Agreement shall not be
fulfilled on or before the date on which the Effective Date is scheduled to
occur or on such other date specified for the fulfillment of such covenant or
condition; or
(ii) a material default or breach of this Agreement shall be made by
Thorsden or TAC; or
(iii) since September 30, 1997 there shall be an adverse change in
the consolidated results of operations of Thorsden and TAC, or any adverse
change in the business, consolidated results of operations (as compared with
the same period in the preceding year), prospects, manner of conducting the
business, consolidated financial condition or any asset of Thorsden and TAC,
which change is material to Thorsden and TAC, except as disclosed in
Thorsden's Form 10-QSB for the quarter ended June 30, 1997 and in the usual
course of Thorsden's business since September 30, 1997; or
(iv) the Board of Directors of Arkona shall have determined in their
sole discretion exercised in good faith that the transactions contemplated by
this Agreement have become inadvisable or impracticable by reason of the
institution or threat by state, local or federal governmental authorities or
by any other person of: (A) litigation or proceedings to restrain or prohibit
the consummation of the transactions contemplated by this Agreement or which
seeks substantial damages in connection with this Agreement or the
transactions contemplated hereby; or (B) other litigation or proceedings, the
outcome of which in the reasonable opinion of counsel for Arkona could have an
adverse effect on the business consolidated results of operations, prospects,
manner of conducting the business, consolidated financial condition or any
asset of Thorsden and TAC, which effect is material to Thorsden and TAC.
Section 12.02. Amendment. At any time, either before or after
submission to or approval by the Shareholders of Arkona of the transactions
contemplated herein, this Agreement may be amended in matters of form or
supplemented by additional agreements, articles, or certificates as may be
determined in the judgment of the President of Arkona and the President of
Thorsden to be necessary, desirable, or expedient to clarify the intentions of
the parties to this Agreement or to effect or facilitate the filing,
recording, or official approval of this Agreement and consummation thereof in
accordance with the purpose and intent of this Agreement; provided, however,
that no such amendment or modification made after submission or approval of
the Shareholders of Arkona shall alter or change the amount of Thorsden Common
Stock to be received on conversion of the Arkona Common Stock, as provided in
this Agreement, or alter or change any of the terms and conditions of this
Agreement or the articles of merger if such alteration or change would
materially and adversely affect the Shareholders of Arkona. After the
Effective Date, this Agreement and any document contemplated hereby may only
be amended by a writing (i) signed by the authorized officers of the parties,
and (ii) after appropriate approval of the shareholders of the parties if such
amendment would adversely affect any such shareholders.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Successors, Assigns and Third Parties. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that, except as
otherwise expressly provided herein, none of the parties hereto may make any
assignment of this Agreement or any interest herein without the prior written
consent of the other parties hereto. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person, firm or
corporation, other than the parties hereto and their respective successors and
assigns, any rights or remedies under or by reason of this Agreement.
Section 13.02. Governing Law. This Agreement shall in all respects be
interpreted, construed and governed by and in accordance with the internal
substantive laws of the State of Utah, disregarding principles of conflict of
laws and the like.
Section 13.03. Severability. Each section, subsection and lesser
section of this Agreement constitutes a separate and distinct undertaking,
covenant and/or provision hereof. In the event that any provision of this
Agreement shall finally be determined to be unlawful, such provision shall be
deemed severed from this Agreement, but every other provision shall remain in
full force and effect.
Section 13.04. Certain Words. Words such as "herein," "hereof,"
"hereby," "hereunder" and words of similar import refer to this Agreement as a
whole and not to any particular Section or subsection of this Agreement.
Section 13.05. Notices. Except as otherwise expressly provided herein,
any notice, consent, or other communication required or permitted to be given
hereunder shall be in writing and shall be either hand delivered, or sent by
courier or by facsimile transmission, and shall be deemed to have been given
when received, and shall be addressed as follows:
(a) If to Thorsden and TAC:
1500 Quail Street, Suite 500
Newport Beach, CA 92660
Facsimile No.: ______________
with a copy to:
Hand & Hand, a law corporation
The Pavilion
24901 Dana Point Harbor Drive, Suite 200
Dana Point, CA 92629
Facsimile No.: (714) 489-0034
(b) If to Arkona:
201 South Main Street, Suite 908
Salt Lake City, Utah 84111
Attn: Stephen Russell
Facsimile No.: (801) 539-8960
with a copy to:
Jeffrey M. Jones, Esq.
Durham, Evans, Jones & Pinegar
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
Facsimile No.: (801) 538-2425
or at such other address or addresses as the party addressed may from time to
time designate in writing. Any communication dispatched by telegram or telex
shall be confirmed by letter.
Section 13.06. Expenses. All legal and other costs and expenses
incurred in connection herewith and the transactions contemplated hereby shall
be paid by the party incurring such expenses, except that Thorsden shall pay
all of the expenses of the Constituent Corporations incurred in connection
herewith.
Section 13.07. Headings. The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
Section 13.08. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused their signatures to be
affixed to this Agreement as of the date first above written.
DATED: October 7, 1997 THE THORSDEN GROUP, LTD.
By:/s/ Jehu Hand
-----------------------------
Its: President
STATE OF CALIFORNIA)
: ss
COUNTY OF ORANGE )
On this 7th day of October, in the year 1997, before me, a Notary Public,
personally appeared Jehu Hand, known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within instrument as
President or on behalf of the corporation therein named and acknowledged to me
that the corporation executed it.
/s/
Notary Public
DATED: 10/7, 1997THORSDEN ACQUISITION CORP.
By: /s/ Jehu Hand
---------------------------------
Its: President
STATE OF CALIFORNIA)
: ss.
COUNTY OF ORANGE)
On this 7th day of October, in the year 1997, before me, a Notary Public,
personally appeared Jehu Hand, known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within instrument as
President or on behalf of the corporation therein named and acknowledged to me
that the corporation executed it.
/s/
Notary Public
DATED: 10/7, 1997 ARKONA, INC.
By: /s/ John Blumenthal
--------------------------------
Its: Chief Executive Officer
STATE OF UTAH)
: ss.
COUNTY OF SALT LAKE)
On this 7th day of October, in the year 1997, before me, a Notary Public,
personally appeared John Blumenthal, known to me (or proved to me on the basis
of satisfactory evidence) to be the person who executed the within instrument
as President or on behalf of the corporation therein named and acknowledged to
me that the corporation executed it.
/s/
Notary Public