UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report April 15, 2000
Mirador Diversified Services, Inc.
Item 1.
Changes in Control of Registrant
On April 13,2000 TCT Financial Group B, Inc., a Nevada corporation (TCT),
acquired all of the capital stock of Mirador Diversified Services (Mirador) a
privately held Nevada corporation from John Jones, Linda Raynell, Cole Henry,
T.L. Byrd and the remaining shareholders of Mirador (collectively, the "Mirador
Shareholders") for 20,965,700 shares of newly-issued common stock, $ 0.001par
value per share( the shares) of TCT. The MIRADOR shareholders are the owners of
83.86 % of the outstanding shares. The stock purchase agreement is attached to
this form 8-K as Exhibit 2.1 and is incorporated herein by reference.
Item 2.
On April 13, 2000, TCT acquired all the capital stock of Mirador Diversified
Services, Inc. from the Mirador shareholders for 20,965,700 shares. Mirador,
located in Virginia Beach, VA is mortgage banking company offering financial
services for an Internet based web site as well as conventional methods .
Mirador is now being operated as a subsidiary of TCT.
Item 3.
No Bankruptcy or Receivership
Item 4.
Change in Registrant's Certifying Accountant
A new independent accountant has been engaged as principal accountant to audit
financial statements. Rudolph Pallitz, LLC, 1777 Sentry Parkway, Bublin Hall,
Blue Bell, PA 01422, 215-641-8600, fax 215-641-8680, CPA Bill Moscola.
Item 5.
Other Events
None
Item 6.
Resignation of Registrant's Directors.
Item 7.
Financial Statements and Exhibits.
Listed below the financial statements, pro forma financial information and
exhibits.
Item 8.
Change in Fiscal Year.
Board of Directors voted to change the fiscal year form that used in the most
recent filing with the Commission to March 31.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Mirador Diversified Services, Inc.
Date: 15, 2000 /s/ JOHN EDWARD JONES
-------------------------------------------
By John Edward Jones,
Chief Executive Officer
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INDEX
ARTICLE I -- SALE AND TRANSFER OF STOCK
1.1 TCT Stock...................................................... 5
1.2 Purchase Price................................................. 6
1.3 Spin-off of Operating Divisions................................ 6
1.4 TCT Distribution............................................... 6
ARTICLE II -- REPRESENTATIONS AND WARRANTIES OF Mirador Diversified Services
2.1 Valid Corporate Existences; Qualification...................... 6
2.2 Capitalization................................................. 7
2.3 Subsidiaries................................................... 7
2.4 Consents....................................................... 7
2.5 Title to Mirador Diversified Services Stock, etc............... 7
2.6 Financial Statements, etc...................................... 7
2.7 Liabilities.................................................... 7
2.8 Actions Since Mirador Diversified Services Balance Sheet Date.. 8
2.9 Adverse Developments........................................... 8
2.10 Taxes.......................................................... 8
2.11 Ownership of Assets; Trademarks, etc........................... 8
2.12 Litigation; Compliance with Law................................ 8
2.13 Real Property.................................................. 8
2.14 Agreements and Obligations; Performance........................ 9
2.15 Permits and Licenses........................................... 9
2.16 Salary Information............................................. 9
2.17 Employee Benefit Plans.........................................10
2.18 No Breach......................................................10
2.19 Brokers........................................................10
2.20 Untrue or Omitted Facts........................................10
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF TCT
3.1 Valid Corporate Existence; Qualification.......................11
3.2 Capitalization.................................................11
3.3 Subsidiaries...................................................11
3.4 Consents.......................................................11
3.5 Corporate Authority............................................11
3.6 Financial Statements, etc......................................11
3.7 Liabilities... ................................................11
3.8 Actions Since TCT Balance Sheet Date...........................12
3.9 Adverse Developments...........................................12
3.10 Taxes..........................................................12
3.11 Ownership of Assets............................................12
2
3.12 Litigation; Compliance with Law ...............................13
3.13 Insurance......................................................13
3.14 Permits and Licenses...........................................13
3.15 Real Property..................................................13
3.16 Agreements and Obligations; Performance........................13
3.17 Banking Arrangements...........................................14
3.18 Salary Information.............................................14
3.19 Employment Benefit Plans.......................................14
3.20 No Breach......................................................14
3.21 Brokers........................................................14
3.22 Untrue or Omitted Facts........................................14
ARTICLE IV -- PRE-CLOSING COVENANTS
4.1 TCT and Mirador Diversified Services Covenants.................15
ARTICLE V -- CONDITIONS PRECEDENT TO THE OBLIGATION OF TCT TO CLOSE
5.1 Representations and Warranties.................................15
5.2 Covenants......................................................15
5.3 Employee Contracts.............................................16
5.4 No Actions.....................................................16
5.5 Consents; Licenses and Permits.................................16
5.6 Certificate....................................................16
5.7 Additional Documents...........................................16
5.8 Approval of Counsel............................................16
ARTICLE VI -- CONDITIONS PRECEDENT TO THE OBLIGATION OF
Mirador Diversified Services AND THE STOCKHOLDERS TO CLOSE
6.1 Representations and Warranties.................................16
6.2 Covenants......................................................16
6.3 No Actions.....................................................16
6.4 Consents; Licenses and Permits.................................16
6.5 Certificate....................................................17
6.6 Additional Documents...........................................17
6.7 Approval of Counsel............................................17
ARTICLE VII -- CLOSING
7.1 Location.......................................................17
7.2 Items to be delivered by Mirador Diversified Services
and its Stockholders...........................................17
7.3 Items to be delivered by TCT...................................17
7.4 Other Items to be delivered by TCT.............................17
3
ARTICLE VIII -- SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
8.1 Survival. .....................................................17
8.2 Indemnification................................................17
8.3 Defense of Claims..............................................18
8.4 Rights Without Prejudice.......................................18
ARTICLE IX -- TERMINATION AND WAIVER
9.1 Termination....................................................18
9.2 Waiver.........................................................18
ARTICLE X -- MISCELLANEOUS PROVISIONS
10.1 Expenses.......................................................19
10.2 Confidential Information.......................................19
10.3 Modification, Termination or Waiver............................19
10.4 Publicity......................................................19
10.5 Notices........................................................19
10.6 Binding Effect and Assignment..................................20
10.7 Entire Agreement...............................................20
10.8 Exhibits.......................................................20
10.9 Governing Law..................................................20
10.10 Counterparts...................................................20
10.11 Section Headings...............................................20
Schedule of Exhibits
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated March 7, 2000 (The Agreement) by and
among TCT Financial Group B, Inc a Nevada Corporation (TCT) and Mirador
Diversified Services, Inc, a Nevada Corporation ("Mirador"). The TCT
stockholders desire to acquire 100% of the issued and outstanding shares of
capital stock of Mirador Diversified Services, Inc. ("Mirador Diversified
Services") in a tax-free reorganization within the meaning of Section 368
(a)(1)(B) of the Internal Revenue Code of 1986 (the "Reorganization"). Upon
completion of such tax free reorganization Mirador Diversified Services shall,
subject to the terms and conditions of this Agreement and Plan of
Reorganization, effect a change of the domicile reflecting the merger of Mirador
Diversified Services and TCT may effect a name change a further change of the
symbol used to identify the corporation for the purpose of trading the
corporation's securities.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
hereby and the representations, warranties, covenants and agreements herein
contained, and in certain of the schedules attached hereto TCT, Mirador
Diversified Services and the Mirador Diversified Services Stockholders agree as
follows:
ARTICLE I--Sale and Transfer of Stock.
1.1 TCT Stock. Upon the terms and subject to the conditions hereinafter
set forth, at the Closing (as hereinafter defined in Section 7.1), TCT shall
sell, transfer and deliver to Mirador Diversified Services and Mirador
Diversified Services shall acquire all of the shares of Common Stock of TCT
Financial Group B, Inc., (the "TCT Stock"), free and clear of all liens,
pledges, encumbrances, charges and claims thereon, as follows: at Closing Twenty
Five Million TCT shares shall be delivered to the Mirador Diversified Services
Inc, shareholders and certificates for the TCT shares shall be delivered to
Scott N. Alperin Attorney at Law 5th Floor, Pembroke One Building, Virginia
Beach, VA 23462 as Escrow Agent, to be delivered to the Mirador Diversified
Services shareholders upon satisfaction of the conditions precedent to the
closing.. The capitalization of TCT is set forth and described in Schedule 1
hereto. Certificates evidencing the TCT Stock and or other evidence of ownership
where stock certificates have not been formally issued, will be delivered to
Mirador Diversified Services duly endorsed in blank or accompanied by
appropriate stock powers and/or transmittal forms, endorsed in blank. Such
certificates and or other evidence of ownership shall also be accompanied by
evidence satisfactory to Mirador Diversified Services of TCT's payment of any
applicable transfer taxes.
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1.2 Purchase Price. Upon the sale, transfer and delivery to Mirador
Diversified Services by TCT of the TCT Stock as set forth in Section 1.1, and in
consideration therefore, Mirador Diversified Services shall deliver to TCT
certificates evidencing an aggregate of Twenty Five Million shares of Common
Stock, par value one tenth of a mil, of Mirador Diversified Services (the
"Mirador Stock") in the names and denominations as set forth on Schedule 2
hereto.
1.3 Shareholder Voting. Upon receipt of written notice that Mirador
Diversified Services wishes to either spin-off or reclaim its securities under
1.3 and until TCT distributes the capital stock of Mirador Diversified Services
as provided in Section 1.3, John Edward Jones shall have the sole and exclusive
right to vote the shares of capital stock issued to the shareholders of the
Mirador Diversified Services.
1.4 Restrictions on Mirador Diversified Services Shareholders. Until
the commitments of Section 1.3(c) are satisfied in full, Mirador Diversified
Services shareholders agree not to sell or otherwise dispose of any of the TCT
Shares.
ARTICLE II --Representations and Warranties of Mirador Diversified Services.
Mirador Diversified Services and John Edward Jones as President of
Mirador Diversified Services, make the following representations and warranties
to TCT each of which shall be deemed material. (TCT in executing, delivering and
consummating this Agreement, has relied and will rely upon the correctness and
completeness of each of such representations and warranties):
2.1 Valid Corporate Existences; Qualification. Mirador Diversified
Services is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. Mirador Diversified Services has the
corporate power to carry on its business as now conducted and to own its assets.
Mirador Diversified Services is qualified to conduct business in any other
jurisdiction, there being no jurisdiction in which failure to qualify would have
a material adverse effect on Mirador Diversified Services, and its assets,
properties or business, and there has not been any claim by any other
jurisdiction to the effect that Mirador Diversified Services is required to
qualify or otherwise be authorized to do business as a foreign corporation
therein. A copy of Mirador Diversified Services's Certificate of Incorporation
(certified by the appropriate official of the State of Nevada) and By-laws
(certified by Mirador Diversified Service's Secretary), as amended to date,
which will be delivered to TCT at or prior to the Closing, are true and complete
copies of those documents as now in effect. The minute books of Mirador
Diversified Services contain accurate records of all meetings of its Board of
Directors, and stockholders since its incorporation, and accurately reflect all
transactions referred to therein.
6
2.2 Capitalization. The authorized capital stock of Mirador Diversified
Services consists of Twenty Fifty Million shares of Common Stock, par value, one
tenth of a mill , of which Twenty Five Million shares are issued and
outstanding. All of such shares of Common Stock are duly authorized and validly
issued and outstanding, fully paid and non-assessable. There are no
subscriptions, options, warrants, rights or calls or other commitments or
agreements to which Mirador Diversified Services is a party or by which it is
bound, calling for the issuance, transfer, sale or other disposition of any
class of securities of Mirador Diversified Services. There are no outstanding
securities of Mirador Diversified Services convertible or exchangeable, actually
or continently, into shares of Common Stock or any other securities of Mirador
Diversified Services.
2.3 Subsidiaries. Mirador Diversified Services has no subsidiaries,
except for United Mortgagee, Inc..
2.4 Consents. There are no consents of governmental and other
regulatory agencies, foreign or domestic, and of other parties required to be
received by or on the part of Mirador Diversified Services, or the Mirador
Diversified Services Stockholders to enable each of such persons to enter into
and carry out this Agreement in all material respects.
2.5 Title to Mirador Diversified Services Stock, etc. Mirador
Diversified Services has the power to enter into this Agreement and to carry out
its obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Mirador Diversified Services and no other corporate
proceedings on the part of Mirador Diversified Services are necessary to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of Mirador Diversified Services and the Mirador Diversified
Services Stockholders and is enforceable in accordance with its terms. The
Mirador Diversified Services Stockholders are, and at the Closing will be the
sole record and beneficial owners of the respective shares of Mirador
Diversified Services Stock held by them, free and clear of all liens, charges,
encumbrances and claims. The Mirador Diversified Services Stockholders have, and
at the Closing will have, good and marketable title to their respective shares
of Mirador Diversified Services Stock and subject to pertinent federal and state
rules and regulations, pertaining to the sale of unregistered securities, the
absolute and unqualified right to sell, transfer and deliver the Mirador
Diversified Services Stock to TCT. The delivery of the Mirador Diversified
Services Stock to TCT at the Closing pursuant to the provisions of this
Agreement will transfer valid title thereto, free and clear of all manner of
liens, pledges, encumbrances, charges and claims.
2.6 Financial Statements. Etc. The balance sheet for Mirador
Diversified Services for 12 months ended December, 1999, a copy of which shall
delivered to TCT within 15 days of the date hereof shall fairly present the
financial position of Mirador Diversified Services as of said date.
2.7 Liabilities. As at December 31, 1999 (the Mirador Diversified
Services Balance Sheet Date) and as of the date hereof, Mirador Diversified
Services had no material debts, liabilities or obligations, contingent or
absolute, in excess of $1,000, other than those debts, liabilities and
obligations reflected or reserved against in Mirador Diversified Service's
Balance Sheet at the Mirador Diversified Services Balance Sheet Date, except
those arising in the ordinary and usual course of its business.
7
2.8 Actions Since Mirador Diversified Services Balance Sheet Date.
Except as otherwise expressly provided or set forth in, or required by, this
Agreement, since the Mirador Diversified Services Balance Sheet Date, Mirador
Diversified Services has not: (i) issued or sold, or agreed to issue or sell any
of its capital stock or options, warrants, rights or calls to purchase such
stock, any securities convertible or exchangeable into such capital stock or
other corporate securities, or effected any subdivision or other
re-capitalization affecting its capital stock; (ii) incurred any material
obligation or liability, absolute or contingent, except those arising in the
ordinary and usual course of its business; (iii) discharged or satisfied any
lien or encumbrance, except in the ordinary and usual course of business, or
paid or satisfied any liability, absolute or contingent, other than liabilities
as at the Mirador Diversified Services Balance Sheet Date and current
liabilities incurred since the Mirador Diversified Services Balance Sheet Date
in the ordinary and usual course of business; (iv) made any wage or salary
increases or granted any bonuses other than wage and salary increases and
bonuses granted in accordance with its normal salary increase and bonus
policies; (v) mortgaged, pledged or subjected to any lien, pledge, charge or
other encumbrance any of its properties or assets, or permitted any of its
property or assets to be subjected to any lien or other encumbrance, except in
the ordinary and usual course of business; (vi) sold, assigned or transferred
any of its properties or assets, except in the ordinary and usual course of
business; (vii) entered into any transaction or course of conduct not in the
ordinary and usual course of business; (viii) waived any rights of substantial
value, or canceled, modified or waived any indebtedness for borrowed money held
by it, except in the ordinary and usual course of business; (ix) declared, paid
or set aside any dividends or other distributions or payments on its capital
stock, or redeemed or repurchased, or agreed to redeem or repurchase, any shares
of its capital stock; (x) made any loans or advances to any person, or assumed,
guaranteed, endorsed or otherwise became responsible for the obligations of any
person; or (xi) incurred any indebtedness for borrowed money (except for
endorsement, for collection or deposit of negotiable instruments received in the
ordinary and usual course of business).
2.9 Adverse Developments. Since the Mirador Diversified Services
Balance Sheet Date, there have been no material adverse changes in the assets,
properties, operations or financial condition of Mirador Diversified Services,
and no event has occurred which could be reasonably expected to have a
materially adverse effect upon the business of Mirador Diversified Services and
the Mirador Diversified Services Stockholders, after reasonable inquiry, do not
know of any development of a nature that is, or which could be reasonably
expected to have a materially adverse effect upon the respective business of
Mirador Diversified Services or upon any of its assets, properties, operations
or financial condition, including, without limitation, the loss of any licenses
or permits, suppliers, customers or employees, which loss would be of a
materially adverse nature.
2.10 Taxes. All taxes, including without limitation, income property,
sales, use, franchise, capital stock, excise, employees income, withholding,
social security and unemployment taxes imposed by the United States, or any
state, have been paid or Otherwise provided for.
2.11 Ownership of Assets; Trademarks. Etc. Mirador Diversified Services
owns outright, and has good and marketable title to all of its assets,
properties and businesses (including all assets reflected in the Mirador
Diversified Services Balance Sheets, except as the same may have been disposed
of in the ordinary course of business since the Mirador Diversified Services
Balance Sheet Date), free and clear of all liens, mortgages, pledges,
conditional sales agreements, restrictions on transfer or other encumbrances or
changes.
2.12 Litigation; Compliance with Law. There are no actions, suits,
proceedings or governmental investigations relating to Mirador Diversified
Services or its properties, assets or business pending or, to the knowledge of
Mirador Diversified Services and the Mirador Diversified Services Stockholders
after reasonable inquiry, threatened, or any order, injunction, award or decree
outstanding, against Mirador Diversified Services or against or relating to its
properties assets or business; and neither Mirador Diversified Services, nor the
Mirador Diversified Services Stockholders, after reasonable inquiry, knows of
any basis for any such actions, suits or proceedings within the past two (2)
years or any such governmental investigations, orders, injunctions or decrees at
any time in the past. To the best of Mirador Diversified Services's knowledge,
as it relates to compliance with laws, it is not in violation of any law,
regulation, ordinance, order, injunction, decree, award, or other requirement of
any governmental body, court or arbitrator relating to its properties, assets or
business, the violation of which would have a material adverse effect on Mirador
Diversified Services.
2.13 Real Property. Exhibit 2.13 sets forth a copy of Mirador
Diversified Service's lease. Mirador Diversified Services does not own outright
the fee simple title in and to any real property. The lease is now in full force
and effect, and all amounts payable thereunder have been paid. All uses of the
leased real property by Mirador Diversified Services conform, in all material
respects, to all the terms of the lease relating thereto.
8
2.14 Agreements and Obligations; Performance. Exhibit 2.14 sets forth a
list of agreements Mirador Diversified Services is a party. (The "Listed
Agreements"). Other than the Listed Agreements, Mirador Diversified Services is
not party to, or bound by any: (i) written or oral agreement or other
contractual commitment, understanding or obligation which involved aggregate
payments or receipts in excess of $1,000 (except for open purchase and sales
orders in the ordinary course of business); (ii) contract, arrangement,
commitment or understanding which involves aggregate payments or receipts in
excess of $1,000 that cannot be canceled on thirty (30) days or less notice
without penalty or premium or any continuing obligation or liability (except for
open purchase and sales orders in the ordinary course of business); (iii)
contractual obligation or contractual liability of any kind to any of the
Mirador Diversified Services Stockholders; (iv) contract, arrangement,
commitment or understanding with its customers or any officer, employee,
stockholder, director, representative or agent thereof for the repurchase of
products, sharing of fees, the rebating of charges to such customers, bribes,
kickbacks from such customers or other similar arrangements; (v) contract for
the purchase or sale of any materials, products or supplies which contain, or
which commits or will commit it for a fixed term; (vi) contract of employment
with any officer or employee not terminable at will without penalty or premium
or any continuing obligation or liability; (vii) deferred compensation, bonus or
incentive plan or agreement not cancelable at will without penalty or premium or
any continuing obligation or liability; (viii) management or consulting
agreement not terminable at will without penalty or premium or any continuing
obligation or liability; (ix) lease for real or personal property (including
borrowings thereon), license or royalty agreement; (x) union or other collective
bargaining agreement; (xi) agreement, commitment or understanding relating to
indebtedness for borrowed money; (xii) contract which, by its terms, requires
the consent of any party thereto to the consummation of the transactions
contemplated hereby; (xiii) contract containing covenants limiting the freedom
of Mirador Diversified Services to engage or compete in any line or business or
with any person in any geographical area; (xiv) contract or option relating to
the acquisition or sale of any business; (xv) voting trust agreement or similar
stockholders' agreement; (xvi) option for the purchase of any asset, tangible or
intangible; or (xvii) other contract, agreement, commitment or understanding
which materially affects any of its properties, assets or business, whether
directly or indirectly, or which was entered into other than in the ordinary
course of business. A true and correct copy of each of the written Listed
Agreements has been delivered to TCT. Mirador Diversified Services has in all
material respects performed all obligations required to be performed by it to
date under all of the Listed Agreements, is not in default in any material
respect under any of the Listed Agreements and has received no notice of any
default or alleged default thereunder which has not heretofore been cured or
which notice has not heretofore been withdrawn.
2.15 Permits and Licenses. Mirador Diversified Services and the Mirador
Diversified Services Shareholders, to the best of their knowledge, believe that
Mirador Diversified Services has all permits, licenses, orders and approvals of
all federal, state, local and foreign governmental or regulatory bodies required
of it to carry on its business as presently conducted; all such other permits,
licenses, orders, franchises and approvals are in full force and effect, and,
after reasonable inquiry, no suspension or cancellation of any of such other
permits, licenses, etc. is threatened; and Mirador Diversified Services is in
compliance in all material respects with all requirements, standards and
procedures of the federal, state, local and foreign governmental bodies which
have issued such permits, licenses, orders, franchises and approvals.
2.16 Salary Information. Mirador Diversified Services has not paid
salaries or made bonus commitments to any of its present officers or other
employees or agents except as setforth in schedule 2.16.
9
2.17 Employee Benefit Plans. Mirador Diversified Services does not
maintain or make any employer contributions under any pension" or o o welfare o
o Benefit it plans, as such the Employee Retirement Income Security Act of 1974,
as amended, defines term.
2.18 No Breach. Neither the execution and delivery of this Agreement
nor compliance by Mirador Diversified Services and the Mirador Diversified
Services Stockholders with any of the provisions hereof, nor the consummation of
the transactions contemplated hereby, will: (a) violate or conflict with any
provision of the Certificate of Incorporation or By-laws of Mirador Diversified
Services; (b) violate or, alone or with notice or the passage of time, result in
the material breach or termination of, or otherwise give any contracting party
the right to terminate, or declare a default under, the terms of any agreement
or other document or undertaking, oral or written to which Mirador Diversified
Services or any of the Mirador Diversified Services Stockholders is a party or
by which any of them or any of their respective properties or assets may be
bound (except for such violations, conflicts, breaches or defaults as to which
required waivers or consents by other parties have been, or will, prior to the
Closing, be obtained); (c) result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of Mirador
Diversified Services pursuant to the terms of any such agreement or instrument;
(d) violate any judgment, order, injunction, decree or award against, or binding
upon, Mirador Diversified Services, or upon their respective properties or
assets; or (e) violate any law or regulation of any jurisdiction relating to
Mirador Diversified Services, its securities, assets or properties.
2.19 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly with TCT without
the intervention of any broker, finder, investment banker or other third party.
Mirador Diversified Services has not engaged, consented to, or authorized any
broker, finder, investment banker or other third party to act on its behalf,
directly or indirectly, as a broker or finder in connection with the
transactions contemplated by this Agreement, and Mirador Diversified Services
agrees to indemnify TCT against, and to hold it harmless from any claim for
brokerage or similar commissions or other compensation which may be made against
TCT by any third party in connection with any of the transactions contemplated
hereby which claim is based upon any action by Mirador Diversified Services.
2.20 Untrue or Omitted Facts. No representation, warranty or statement
by Mirador Diversified Services or any of the Mirador Diversified Services
Stockholders in this Agreement contains any untrue statement of a material fact,
or omits or will omit to state a fact necessary in order to make such
representations, warranties or statements not materially misleading. Without
limitation of the foregoing, there is no fact known to Mirador Diversified
Services, after reasonable inquiry, that has had, or which may be reasonably
expected to have, a materially adverse effect on Mirador Diversified Services or
any of its assets, properties, operations or businesses that has not been
disclosed in writing to TCT.
ARTICLE III-- Representations and Warranties of TCT.
TCT makes the following representations and warranties to Mirador
Diversified Services, each of which shall be deemed material (and Mirador
Diversified Services and the Mirador Diversified Services Stockholders, in
executing, delivering and consummating this Agreement, have relied and will rely
upon the correctness and completeness of each of such representations and
warranties):
10
3.1 Valid Corporate Existences; Qualification. TCT is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has the corporate power to carry on its business as now
conducted and to own its assets. TCT is not qualified to conduct business as a
foreign corporation in any jurisdiction, there being no jurisdiction in which
failure to qualify would have a material adverse effect on TCT and its assets,
properties or business, and there has not been any claim by any jurisdiction to
the effect TCT is required to qualify or otherwise be authorized to do business
as a foreign corporation therein. The copies of the Certificate of Incorporation
(as certified by the Secretary of the State of Nevada) and By-laws (as certified
by the Secretary of TCT, as the case may be) of TCT, as amended to date, which
will be delivered to Mirador Diversified Services prior to the Closing, are true
and complete copies of those documents as now in effect.
3.2 Capitalization. The capitalization of TCT is fully set forth
described in Schedule 1 hereto including all shares of capital; stock issuable
upon exercise of warrants and other options. At the Closing there shall be no
more than 8,000,000 million shares of TCT common stock outstanding on a fully
diluted basis.
3.3 Acquisition of Subsidiaries. TCT will, upon Closing of each
proposed transaction, own in excess of 70% of the capital stock of each company
acquired. The capitalization of these proposed transactions are fully set forth
and described in Schedule 2 hereto including all shares of capital stock
issuable upon exercise of warrants and other options. Schedule 3 hereto is a
list identifying all record and beneficial owners of capital stock.
3.4 Consents. No consents of governmental and other regulatory
agencies, foreign or domestic, and of other third parties is required to be
received by or on the part of TCT to enable it to enter into and carry out this
Agreement in all material respects.
3.5 Corporate Authority. TCT has the corporate power to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of TCT prior to the Closing.
No other corporate proceedings on the part of TCT are necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of TCT and is enforceable in accordance with its terms.
3.6 Financial Statements, etc. The audited financial statements of TCT
for the year 1999 ended December 31, 1999, copies of which have been delivered
to Mirador Diversified Services, fairly represent in all material respects the
financial position of TCT, including its income, expenses, assets and
liabilities as of said dates and the results of its operations for such periods
and were prepared in conformity with generally accepted accounting principles
consistently applied throughout the periods covered thereby. An independent
certified public accountant, whose report thereon is included therein, has
prepared the reviewed financial statements for the year ended December 31, 1999.
3.7 Liabilities. Except as set forth in Exhibit 3.7, as of December 31,
1999 (the TCT Balance Sheet Date), TCT had no material debts, liabilities or
obligations, contingent or absolute, in excess of $1,000, other than those
debts, liabilities and obligations reflected or reserved against in TCT's
Balance Sheet at the Balance Sheet Date except those arising in the ordinary
course of business.
11
3.8 Actions since TCT's Balance sheet date. Except as set forth and
reflected in this Agreement, TCT has not: (i) issued or sold, or agreed to issue
or sell any of its capital stock, options, warrants, rights or calls to purchase
such stock, any securities convertible or exchangeable into such capital stock
or other corporate securities, or effected any subdivision or other
re-capitalization affecting its capital stock; (ii) incurred any material
obligation or liability, absolute or contingent, except those arising in the
ordinary and usual course of its business; (iii) discharged or satisfied any
lien or encumbrance, except in the ordinary and usual course of business, or
paid or satisfied any liability, absolute or contingent, other than liabilities
as at the TCT Balance Sheet Date and current liabilities incurred since the TCT
Balance Sheet Date in the ordinary and usual course of business; (iv) made any
wage or salary increases or granted any bonuses other than wage and salary
increases and bonuses granted in accordance with its normal salary increase and
bonus policies; (v) mortgaged, pledged or subjected to any lien, pledge, charge
or other encumbrance any of its properties or assets, or permitted any of its
property or assets to be subjected to any lien or other encumbrance, except in
the ordinary and usual course of business; (vi) sold, assigned or transferred
any of its properties or assets, except in the ordinary and usual course of
business; (vii) entered into any transaction or course of conduct not in the
ordinary and usual course of business; (viii) waived any rights of substantial
value, or canceled, modified or waived any indebtedness for borrowed money held
by it, except in the ordinary and usual course of business; (ix) declared, paid
or set aside any dividends or other distributions or payments on its capital
stock, or redeemed or repurchased, or agreed to redeem or repurchase, any shares
of its capital stock; (x) made any loans or advances to any person, or assumed,
guaranteed, endorsed or otherwise became responsible for the obligations of any
person; or (xi) incurred any indebtedness for borrowed money (except for
endorsement, for collection or deposit of negotiable instruments received in the
ordinary and usual course of business).
3.9 Adverse Developments. Since the TCT Balance Sheet Date, there have
been no material adverse changes in the assets, properties, operations or
financial condition of TCT, and no event has occurred other than in the ordinary
and usual course of business which could be reasonably expected to have a
materially adverse effect upon the business of TCT, and TCT, after reasonable
inquiry, knows of no development or threatened development of a nature that is,
or which could be reasonably expected to have a materially adverse effect upon
the business of TCT, or upon any of its assets, properties, operations or
financial condition.
3.10 Taxes. All taxes, including without limitation, income property,
sales, use, franchise, capital stock, excise, employees income, withholding,
social security and unemployment taxes imposed by the United States, or any
state, have been paid or otherwise provided for except, for Federal income tax
returns which have not been filed but with respect to which no taxes will be
due.
3.11 Ownership of Assets. TCT owns outright, and has good and
marketable title to all of its assets and properties reflected in the TCT
Balance Sheet set forth on Exhibit, except as the same may have been disposed of
in the ordinary course of business since the TCT Balance Sheet Date, free and
clear of all liens, mortgages, pledges, conditional sales agreements,
restrictions on transfer or other encumbrances or charges whatsoever. TCT does
not own any patents, copyrights, trademarks, trade names or other similar
intangible assets except as set forth on Exhibit 3.11
12
3.12 Litigation; Compliance with Law. Except as set forth in Exhibit
3.12 there are no pending or threatened actions, suits, proceedings or
governmental investigations relating to TCT or any of its properties, assets or
business or, to the knowledge of TCT, or any order, injunction, award or decree
outstanding, against TCT or against or relating to any of its properties, assets
or business; and TCT, after reasonable inquiry, knows of no basis for any such
action, suits or proceedings or any such governmental investigations, orders,
injunctions or decrees. To the knowledge of TCT, after reasonable inquiry, TCT
is not in violation of any material law, regulation, ordinance, order,
injunction, decree, award, or other requirement of any governmental body, court
or arbitrator relating to its properties, assets or business.
3.13 Insurance TCT does not maintain any insurance due to the nature of
its business.
3.14 Permits and Licenses. TCT has all material permits, licenses,
orders and approvals of all federal, state, local and foreign governmental or
regulatory bodies required of it to carry on its business as presently
conducted; all such permits, licenses, orders, franchises and approvals are in
full force and effect, and to the knowledge of TCT, after reasonable inquiry, no
suspension or cancellation of any of such permits, licenses, etc., is
threatened; and TCT is in compliance in all material respects with all
requirements, standards and procedures of the federal, state, local and foreign
governmental bodies which have issued such permits, licenses, orders, franchises
and approvals.
3.15 Real Property. TCT owns no real property.
3.16 Agreements and Obligations; Performance. Exhibit 3.16 sets forth a
list of agreements TCT is a party (the "Listed agreement's). Other than the
Listed Agreements, TCT is not party to or bound by any: (i) written or oral
agreement or other contractual commitment, understanding or obligation which
involved aggregate payments or receipts in excess of $1,000 (except for purchase
and sale orders in the ordinary course of business); (ii) contract, arrangement,
commitment or understanding which involves aggregate payments or receipts in
excess of $1,000 that cannot be canceled on thirty (30) days or less notice
without penalty or premium or any continuing obligation or liability (except for
purchase and sale orders in the ordinary course of business) ; (iii) contractual
obligation or contractual liability of any kind to any of TCT's stockholders;
(iv) contract, arrangement, commitment or understanding with its customers or
any officer, employee, stockholder, director, representative or agent thereof
for the repurchase of products, sharing of fees, the rebating of charges to such
customers, bribes, kickbacks from such customers or other similar arrangements;
(v) contract for the purchase or sale of any materials, products or supplies
which contain, or which commits or will commit it for a fixed term; (vi)
contract of employment with any officer or employee not terminable at will
without penalty or premium or any continuing obligation or liability; (vii)
deferred compensation, bonus or incentive plan or agreement not cancelable at
will without penalty or premium or any continuing obligation or liability;
(viii) management or consulting agreement not terminable at will without penalty
or premium or any continuing obligation or liability; ( ix) lease for real or
personal property (including borrowings thereon), license or royalty agreement;
(x) union or other collective bargaining agreement; (xi) agreement, commitment
or understanding relating to indebtedness for borrowed money; (xii) contract
which, by its terms, requires the consent of any party thereto to the
consummation of the transactions contemplated hereby; (xiii) contract containing
covenants limiting the freedom of TCT to engage or compete in any line or
business or with any person in any geographical area; (xiv) contract or option
relating to the acquisition or sale of any business; (xv) voting trust agreement
or similar stockholders agreement; (xvi) option for the purchase of any asset,
tangible or intangible; or (xvii) other contract, agreement, commitment or
understanding which materially affects any of its properties, assets or
13
business, whether directly or indirectly, or which was entered into other than
in the ordinary course of business. A true and correct copy of each of the
Listed Agreements has been delivered to Mirador Diversified Services. TCT has in
all material respects performed all obligations required to be performed by it
to date under all agreements to which it is a party and is not in default in any
material respect under any of the Listed Agreements and has received no notice
of any default or alleged default which has not heretofore been cured or which
notice has not heretofore been withdrawn.
3.17 Banking Arrangements. All bank accounts in the name of TCT, as of
the Closing shall terminate set forth in Exhibit 3.17.
3.18 Salary Information. TCT is not party to any employment agreements.
3.19 Employment Benefit Plans. TCT does not maintain or make any
employer contributions under any "pension " or "welfare's benefit plans", as
defined by the respective meanings of Sections 3(2) and 3(1) of the Employee
Retirement Income Security Act of 1974, as amended.
3.20 No Breach. Neither the execution and delivery of this Agreement
nor compliance by TCT with any of the provisions hereof nor the consummation of
the transactions contemplated hereby, will: (a) violate or conflict with any
provision of the Articles of Incorporation or By-laws of TCT; (b) violate or,
alone or with notice or the passage of time, result in the material breach or
termination of, or otherwise give any contracting party the right to terminate,
or declare a default under, the terms of any agreement or other document or
undertaking, oral or written to which TCT or any of the TCT stockholders is a
party or by which any of them or any of their respective properties or assets
may be bound (except for such violations, conflicts, breaches or defaults as to
which required waivers or consents by other parties have been, or will, prior to
the Closing, be obtained); (c) result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of TCT
pursuant to the terms of any such agreement or instrument; (d) violate any
judgment, order, injunction, decree or award against, or binding upon, TCT or
upon their respective properties or assets; or (e) violate any law or regulation
of any jurisdiction relating to TCT, its securities, assets or properties.
3.21 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly by TCT with
Mirador Diversified Services and the Mirador Diversified Services Stockholders,
without the intervention of any broker, finder, investment banker or other third
party. TCT and Dennis M. Vigouret have not engaged, consented to, or authorized
any broker, finder, investment banker or other third party to act on its behalf,
directly or indirectly, as a broker or finder in connection with the merger and
the transactions contemplated by this Agreement, and TCT agrees to indemnify and
to hold harmless Mirador Diversified Services and the Mirador Diversified
Services Stockholders from and against any claim for brokerage or similar
commission or other compensation which may be made against Mirador Diversified
Services or the Mirador Diversified Services Stockholders by any third party in
connection with any of the transactions contemplated hereby, which claim is
based upon any action by TCT.
3.22 Untrue or Omitted Facts. To the knowledge of TCT, after reasonable
inquiry, no representation, warranty or statement by TCT in this Agreement
contains any untrue statement of a material fact, or omits or will omit to state
a fact necessary in order to make such representations, warranties or statements
not materially misleading. Without limitation of the foregoing, there is no fact
known to TCT and or Dennis M Vigouret as President of TCT, after reasonable
inquiry, that has had, or which may be reasonably expected to have, a materially
adverse effect on TCT or any of its assets, properties, operations or businesses
and that has not been disclosed in writing to Mirador Diversified Services.
14
ARTICLE IV--Pre-Closing Covenants
4.1 TCT and Mirador Diversified Services, hereby covenant to each other
that, from and after the date hereof and until the Closing or earlier
termination of this Agreement (the "Pre-Closing Period"):
(a) Access. To afford to the officers, attorneys, accountants and other
authorized representatives of the other free and full access, during regular
business hours and upon reasonable notice, to all of its books, records,
personnel and properties so that each party at its own expense, may have full
opportunity to make such review, examination and investigation may desire of the
others business and affairs. Each party will cause its employees, accountants
and attorneys to cooperate fully with said review, Examination and investigation
and to make full disclosure to the other party of all material facts affecting
its financial condition and business operations.
(b) Conduct of Business. Each party shall conduct its business only in
the ordinary and usual course and make no material change in any of its business
practices and policies without the prior written consent of the other, which
shall not be unreasonably withheld or delayed.
(c) Liabilities. Neither party shall incur any obligation or liability,
absolute or contingent, except for those incurred in the ordinary and usual
course of its business.
(d) Preservation of Business. Each party will use its best efforts to
preserve its business organization intact, to keep available the services of its
present off officers, employees and consultants and to preserve its good will.
(e) No Breach. Each party will (i) use its best efforts to assure that
all of its representations and warranties contained herein are true in all
material respects as of the Closing as if repeated at and as of such time, and
that no material breach or default shall occur with respect to any of its
covenants, representations or warranties contained herein that has not been
cured by the Closing; (ii) not voluntarily take any action or do anything which
will cause a breach of or default respecting such covenants, representations or
warranties; and (iii) promptly notify the other of any event or fact which
represents or is likely to cause such a breach or default.
(f) Legal Fees and Other Expenses. Each party shall bear their own
costs and expenses if the transaction is abandoned at any time.
ARTICLE V-- Conditions Precedent to the Obligation of TCT to Close
The obligation of TCT to enter into and complete the Closing is subject
to the fulfillment, prior to or on the Closing Date, of each of the following
conditions, any one or more of which may be waived by TCT (except when the
fulfillment of such condition is a requirement of law).
5.1 Representations and Warranties. All representations and warranties
of each of Mirador Diversified Services and each of the Mirador Diversified
Services Stockholders contained in this Agreement and in any written statement
(except financial statements), exhibit, certificate, schedule or other document
delivered pursuant hereto or in connection with the transactions contemplated
hereby shall be true and correct in all material respects as at the Closing
Date, as if made at the Closing and as of the Closing Date.
5.2 Covenants. Mirador Diversified Services, Mirador Diversified
Services Pres., shall have performed and complied in all material respects with
all covenants and agreements required by this Agreement to be performed or
complied with by each of them prior to or at the Closing.
15
5.3 Employee Contracts. All key employee's existing contracts with
Mirador Diversified Services shall be in full force and effect.
5.4 No Actions. No action, suit, proceeding or investigation shall have
been instituted, and be continuing before a court or before or by a governmental
body or agency, or shall have been threatened and be unresolved, to restrain or
to prevent or to obtain damages in respect of, the carrying out of the
transactions contemplated hereby, or which might materially affect the right of
TCT to own the Mirador Diversified Services Stock or to operate or control the
assets, properties and business of Mirador Diversified Services after the
Closing Date, or which might have a materially adverse effect thereon.
5.5 Consents; Licenses and Permits. Mirador Diversified Services and
TCT shall have each obtained all consents, licenses and permits of third parties
necessary for the performance by each of them of all of their respective
obligations under this Agreement.
5.6 Certificate. TCT shall have received a certificate dated the
Closing Date, signed by the President and Secretary of Mirador Diversified
Services as to the satisfaction of the conditions contained in Sections 5.1,
5.2, and the conditions contained in Section 5.3 required prior to the Closing.
5.7 Additional Documents. Mirador Diversified Services and TCT shall
have delivered all such other certificates and documents as TCT or its counsel
may have reasonably requested.
5.8 Approval of Counsel. All actions, proceedings, instruments and
documents required to carry out this Agreement, or incidental thereto, and all
other related legal matters shall have been approved as to the form and
substance by counsel to TCT, which approval shall not be unreasonably withheld
or delayed.
ARTICLE VI--Conditions Precedent to the Obligations of Mirador Diversified
Services and the Stockholders to Close.
The obligation of Mirador Diversified Services, Mirador Diversified
Services Pres., to enter into and complete the Closing is subject to the
fulfillment, prior to or on the Closing Date, of each of the following
conditions, any one or more of which may be waived by Mirador Diversified
Services and the Mirador Diversified Services Stockholders (except when the
fulfillment of such condition is a requirement of law).
6.1 Representations and Warranties. All representations and warranties
of TCT and contained in this Agreement and in any written statement, schedule or
other document delivered pursuant hereto or in connection with the transactions
contemplated hereby shall be true and correct in all material respects as at the
Closing Date, as if made at the Closing and as of the Closing Date.
6.2 Covenants. TCT shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by each of them prior to or at the Closing.
6.3 No Actions. No action, suit, proceeding, or investigation shall
have been instituted, and be continuing, before a court or by a governmental
body or agency, or have been threatened, and be unresolved, by any governmental
body or agency to restrain or prevent, or obtain damages in respect of, the
carrying out of the transactions contemplated hereby.
6.4 Consents; Licenses and Permits. Mirador Diversified Services, and
TCT, shall have each obtained all consents, licenses and permits of third
parties necessary for the performance by each of them of all of their respective
obligations under this Agreement.
16
6.5 Certificate. Mirador Diversified Services and the Mirador
Diversified Services Stockholders shall have received a certificate dated the
Closing Date, signed by the President and Secretary of TCT as to the
satisfaction of the conditions contained in Sections 6.1 and 6.2.
6.6 Additional Documents. TCT shall have delivered all such certified
resolutions, certificates and documents with respect to TCT as Mirador
Diversified Services, the Mirador Diversified Services Stockholders or their
counsel may have reasonably requested.
6.7 Approval of Counsel. All actions, proceedings, instruments and
documents required to carry out this Agreement or incidental thereto, and all
other related legal matters, shall have been approved as to form and substance
by counsel to Mirador Diversified Services, which approval shall not be
unreasonably withheld or delayed.
ARTICLE VII--Closing
7.1 Location. The Closing provided for herein shall take place at the
offices of Mirador or other such time and place as may be mutually agreed to by
the parties hereto. Such date is referred to in this Agreement as the "Closing
Date or the o o Closing. o o
7.2 Items to be Delivered By Mirador Diversified Services and the
Mirador Diversified Services Stockholders. At the Closing, Mirador Diversified
Services will deliver or cause to be delivered to TCT: (a) Certificates
representing the Mirador Diversified Services Stock in accordance with Section
1.1 hereof, accompanied by all instruments and documents as in the opinion of
TCT's counsel shall be necessary to effect the transfer of and to vest title in
and to the Mirador Diversified Services Stock in TCT, free and clear of all
liens, pledges, encumbrances, charges and claims thereon; (b) The certificates
required by Section 5.5; and (c) Such other certified resolutions, documents and
certificates as are required to be delivered by Mirador Diversified Services and
the Mirador Diversified Services Stockholders pursuant to the provisions of the
Agreement.
7.3 Items to be Delivered By TCT. At the Closing, TCT will deliver or
cause to be delivered to Mirador Diversified Services: (a) Certificates
evidencing the TCT Stock in accordance with Section 1.2 hereof; (b) The
certificate required by Section 6.5; (c) Resignations of TCT's executive
officers and Directors; and (d) Such other certified resolutions, documents and
certificates as are required to be delivered by TCT pursuant to the provisions
of this Agreement.
7.4 Other Items to be Delivered By TCT. At the Closing, TCT will
deliver or cause to be delivered, the Certificates evidencing TCT Stock in
accordance with Section 1.1 hereof.
ARTICLE VIII--Survival of Representations
8.1 Survival. The parties hereto agree that their respective
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing for a term of twenty-four (24) months with
the exception of those regarding taxes set forth in Sections 2.10 and 3.10 which
shall survive until the expiration of the respective periods within which such
taxes may be assessed.
8.2 Indemnification. TCT agrees to indemnify and hold harmless Mirador
Diversified Services and each of the Mirador Diversified Services Stockholders
from and against any and all obligations or liabilities, of every kind, nature
and description, fixed or contingent (including, without limitation, counsel
fees and expenses in connection with any action, claim or proceeding relating to
17
such liabilities) arising out of any transaction or event commencing or
occurring on or prior to the Closing Date, which is not fully disclosed or
provided for in the TCT Balance Sheet, this Agreement or the several exhibits
hereto, including, without limitation, any tax liabilities to the extent not so
reflected or reserved against in the TCT Balance Sheet and for any liability
arising out of Federal and State securities laws.
8.3 Defense of Claims. A party entitled to Indemnification hereunder
(an Indemnified Party) agrees to notify each party required to indemnify
hereunder (an Indemnifying Party) with reasonable promptness of any claim
asserted against it in respect of which any Indemnifying Party may be liable
under this Agreement, which notification shall be accompanied by a written
statement setting forth the basis of such claim and the manner of calculation
thereof. An Indemnifying Party shall have the right to defend any such claim at
its or his own expense and with counsel of its or his choice; provided, however,
that such counsel shall have been approved by the Indemnified Party prior to
engagement, which approval shall not be unreasonably withheld or delayed; and
provided further, that the Indemnified Party may participate in such defense, if
it so chooses, with its own counsel and at its own expense.
8.4 Rights Without Prejudice. The rights of the parties under Article
VIII are without prejudice to any other rights or remedies that it may have by
reason of this Agreement or as otherwise provided by law.
ARTICLE IX--Termination and Waiver
9.1 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the transactions provided
for herein abandoned at any time prior to the Closing Date: (a) By mutual
consent of the Board of Directors of TCT and Mirador Diversified Services; (b)
By TCT if any of the conditions set forth in Article V hereof shall not have
been fulfilled on or prior to June 3, 2000, or shall become incapable of
fulfillment, and shall not have been waived; (c) By Mirador Diversified
Services, Mirador Diversified Services Pres., if any of the conditions set forth
in Article VI hereof shall not have been fulfilled on or prior to June 3, 2000,
or shall have become incapable of fulfillment, and shall not have been waived;
(d) By either party if any legal action or proceeding shall have been instituted
or threatened seeking to restrain, prohibit, invalidate or otherwise affect the
consummation of the transactions contemplated by this Agreement which makes it
inadvisable, in the judgment of the terminating party to consummate same. In the
event that this Agreement is terminated as described above, this Agreement shall
be void and of no force and effect, without any liability or obligation on the
part of any of the parties hereto except for any liability which may arise
pursuant to Section 10.2
9.2 Waiver. Any condition to the performance of Mirador Diversified
Services and TCT, which legally may be waived on or prior to the Closing Date,
may be waived at any time by the party entitled to the benefit thereof by action
taken or authorized by an instrument in writing executed by the relevant party
or parties. The failure of any party at any time or times to require performance
of any provision hereof shall in no manner affect the right of such party as a
later time to enforce the same. No waiver by any party of the breach of any
term, covenant, representation or warranty contained in this Agreement as a
condition to such party's obligations hereunder shall release or affect any
liability resulting from such breach, and no waiver of any nature, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such condition or of any
breach of any other term, covenant, representation or warranty of this
Agreement.
18
ARTICLE X--Miscellaneous Provisions
10.1 Expenses. Each of the parties hereto shall bear his or its own
expenses in connection herewith.
10.2 Confidential Information. Each party agrees that such party and
its representatives will hold in strict confidence all information and documents
received from the other parties and, if the transactions herein contemplated
shall not be consummated, each party will continue to hold such information and
documents in strict confidence and will return to such other parties all such
documents (including the exhibits attached to this Agreement) then in such
receiving party's possession without retaining copies thereof; provided,
however, that each party's obligations under this Section 10.2 to maintain such
confidentiality shall not apply to any information or documents that are in the
public domain at the time furnished by the others or that become in the public
domain thereafter through any means other than as a result of any act of the
receiving party or of its agents, officers, directors or stockholders which
constitutes a breach of this Agreement, or that are required by applicable law
to be disclosed. The parties agree that the remedy at law for any breach of this
Section 10.2 will be inadequate and a non-breaching party will be entitled to
injunctive relief to compel the breaching party to perform or refrain from
action required or prohibited hereunder.
10.3 Modification, Termination or Waiver. This Agreement may be
amended, modified, superseded or terminated, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, but only by a
written instrument executed by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision hereof shall
in no manner affect the right of such party at a later time to enforce the same.
10.4 Publicity. The parties agree that no publicity, release or other
public announcement concerning the transactions contemplated by this Agreement
shall be issued by either party without the advance approval of both the form
and substance of the same by the other party and its counsel, which approval, in
the case of any publicity, release or other public announcement required by
applicable law, shall not be unreasonably withheld or delayed.
10.5 Notices. Any notice or other communication required or which may
be given hereunder shall be in writing and either be delivered personally or be
mailed, certified or registered mail, postage prepaid, and shall be deemed given
when so delivered personally, or if mailed, two days after the date of mailing,
as follows:
If to TCT to:
Dennis M. Vigouret
TCT Financial Group B, Inc.
5424 Comchec Way, Unit 105
Las Vegas, NV 891085
And if to Mirador Diversified Services, Inc. at:
John Edward Jones
Mirador Diversified Services, Inc.
675 Lynnhaven Parkway 2nd Floor
Virginia Beach, VA 23452
19
The parties may change the persons and addresses to which the notices
or other communications are to be sent by giving written notice of any such
change in the manner provided herein for giving notice.
10.6 Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the parties
hereto; provided, however, that no assignment of any rights or delegation of any
obligations provided for herein may be made by any party without the express
written consent of the other parties.
10.7 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof.
10.8 Exhibits. All schedules and exhibits annexed hereto and the
documents and instruments referred to herein or required to be delivered
simultaneously herewith or at the Closing are expressly made a part of this
Agreement as fully as though completely set forth herein, and all references to
this Agreement herein or in any of such exhibits, documents, or instruments
shall be deemed to refer to and include all such exhibits, documents and
instruments.
10.9 Governing Law. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Nevada applicable to agreements made
and to be performed entirely within that State, excluding the choice of law
rules thereof.
10.10 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but which together shall
constitute one and the same instrument.
10.11 Section Headings. The section headings contained in this
Agreement are inserted for conveniences of reference only and shall not affect
the meaning or interpretation of this Agreement.
10.12 Governmental Approvals. This agreement is subject to approval by
the Securities and Exchange Commission and all such other governmental agencies
that may have jurisdiction over this transaction. The parties agree to modify
this agreement, providing such modification does not affect the business terms
of this agreement, to conform to any such approvals.
WITNESS the execution of this Agreement as of the date first above written.
Initials
TCT Financial Group B, Inc.
BY: /s/ DENNIS M. VIGOURET ATTEST:_____________________
---------------------------------------
Dennis M. Vigouret, Chairman
BY: /s/ DAWNA BLYLEVEN ATTEST:_____________________
---------------------------------------
Dawna Blyleven, Corporate Secretary
Mirador Diversified Services, Inc.:
BY: /s/ JOHN EDWARD JONES ATTEST:______________________
---------------------------------------
John Edward Jones
Mirador Diversified Services, President
BY: /s/ LINDA REYNELL ATTEST:______________________
---------------------------------------
Linda Raynell
Mirador Diversified Services, Secretary
20
MIRADOR DIVERSIFIED SERVICES, INC. PRELIMIN 1999 PROFORMA
BALANCE SHEET
AS OF DECEMBER 31, 1999
Dec 31, '99
-----------
ASSETS
Current Assets
Other Current Assets
Current Assets 14,143,247
----------
Total Other Current Assets 14,143,247
----------
Total Current Assets 14,143,247
Fixed Assets
Fixed Assets 658,054
----------
Total Fixed Assets 658,054
Other Assets
Other Assets 105,626
----------
Total Other Assets 105,626
----------
TOTAL ASSETS 14,906,927
==========
LIABILITIES & EQUITY
Liabilities
Current Liabilities
Other Current Liabilities
Current Liabilities 9,949,577
----------
Total Other Current Liabilities 9,949,577
----------
Total Current Liabilities 9,949,577
Long Term Liabilities
Long Term Liabilities 41,407
----------
Total Long Term Liabilities 41,407
----------
Total Liabilities 9,990,984
Equity
Opening Bal Equity 1,649,576
Net Income 3,266,367
----------
Total Equity 4,915,943
----------
TOTAL LIABILITIES & EQUITY 14,906,927
==========
MIRADOR DIVERSIFIED SERVICES, INC. PRELIMIN 1999 PROFORMA
PROFIT AND LOSS
JANUARY THROUGH DECEMBER 1999
Jan - Dec '99
-------------
Ordinary Income/Expense
Income
Gross 1999 Income
ACM Total Income 422,446
Allstate Total Income 1,150,748
AMM Total Income
Aaction Total Income 369,503
AMM Total Income - Other 626,307
-------------
Total AMM Total Income 995,810
MAM Annualized Income 643,062
MLA Annualized Revenue 7,596,213
MRA Total Income 555,489
UM Total Income 1,044,183
UMI Total Income
UMI Banker Gain 1,640,975
UMI Total Income - Other 1,027,682
-------------
Total UMI Total Income 2,668,657
-------------
Total Gross 1999 Income 15,076,608
-------------
Total Income 15,076,608
Expense
1999 Operating Expense
ACM Total Expenses
ACM Payroll Adjustment -75,000
ACM Total Expenses - Other 429,028
-------------
Total ACM Total Expenses 354,028
Allstate Total Operating Expens 1,172,507
AMM Total Operating Expense
Aaction Total Expense 354,801
AMM Total Operating Expense - Other 671,505
-------------
Total AMM Total Operating Expense 1,026,306
MAM Annualized Expenses
MAM Payroll Adjustment -75,000
MAM Annualized Expenses - Other 611,926
-------------
Total MAM Annualized Expenses 536,926
MLA Annualized Operating Exp 6,572,204
MRA Total Operating Expense
MRA Payroll Adjustment -150,000
MRA Total Operating Expense - Other 524,022
-------------
Total MRA Total Operating Expense 374,022
UM Total Operating Expense 911,067
MIRADOR DIVERSIFIED SERVICES, INC. PRELIMIN 1999 PROFORMA
PROFIT AND LOSS
JANUARY THROUGH DECEMBER 1999
Jan - Dec '99
-------------
UMI Total Operating Expense
UMI Colorado Efficiencies -135,000
UMI Payroll Adjustment -250,000
UMI Total Operating Expense - Other 1,248,181
-----------
Total UMI Total Operating Expense 863,181
-----------
Total 1999 Operating Expense 11,810,240
-----------
Total Expense 11,810,240
-----------
Net Ordinary Income 3,266,367
-----------
Net Income 3,266,367
===========
MIRADOR DIVERSIFIED SERVICES, INC. 1999 PRELIMINARY PROFORMA
PROFIT AND LOSS
BALANCE SHEET
AS OF DECEMBER 31, 1999
NOTES:
1. All Balance Sheet and Income & Expense information is based on PRELIMINARY
information provided by the individual companies. This information is compiled
for management use only, and does not contain adjustments that would normally be
included in any presentation to readers not part of the respective management
groups. Adjustments for accruals, non-cash items, asset and/or liability
allocations, etc. are rarely included in this form of management presentation,
and the use of this information by non-management is highly cautioned.
2. The source for the information presented is as follows:
ACM = American Capital Mortgage: full year Income/Expense Statement ending
12/31/99
Balance Sheet as of 12/31/99
Allstate = Allstate Mortgage: full year Income/Expense Statement ending 12/31/99
Balance Sheet as of 12/31/99
AMM = America's Mortgage Mart: full year Income/Expense Statement ending
12/31/99, including revenue from Aaction Mortgage which was acquired
December 1999.
Balance Sheet as of 12/31/99
MAM = Mid-America Mortgage: ANNUALIZED 12 month statement Balance Sheet and
Income/Expense based on 10 month statement from February 1 to November
30,1999.
MLA = Mortgage Lending of America: ANNUALIZED 12 month statement Balance Sheet
and Income/Expense based on 9 month statement from January 1 to September
30, 1999.
MRA = Mortgage Resource Associates: full year Income/Expense Statement ending
12/31/99.
Balance Sheet as of 12/31/99
NATCAP = NATCAP Mortgage: Balance Sheet as of 10/31/98
Income/Expense NOT included since only the assets of this operation are
being acquired
UM = University Mortgage: full year Income/Expense Statement ending 12/31/99
Balance Sheet NOT included since the assets of this operation are not
being acquired
UMI = United Mortgagee: Balance Sheet ending December 31, 1999
Income/Expense statement for June 1 to December 31, 1999 ANNUALIZED
Note: Income/Expense Statement contains extraordinary expenses related to
the prior management and subsequent write-off of non-performing income and
non-continuing expense items. Payroll expense has been adjusted downwards
by $250,000 but other items also require adjustment and as such the actual
accounting basis considerably exaggerates the expenses while minimizing
the income.
3. Expenses have been reduced for anticipated savings within the Colorado
operations, which we estimate rent to be reduced by $60,000 annually and
Administrative efficiencies to produce another $75,000 in expense reductions.
4. Payroll at American Capital Mortgage, Mid America Mortgage, and Mortgage
Resource Associates can be reduced by $75,000, $75,000, and $150,000,
respectively, to reflect conversion to prior management salaries to new salary
structure.
5. Income includes estimated net gain to UMI as a Mortgage Banker, to include
gains from Service Release and Yield Spread Premiums, and additional fees
charged to customer at closing which can be retained by UMI. We calculate this
revenue gain to be $1,640,975 to which we have added the $125,000 in savings
outlined in #3 and the $300,000 savings in #4. Note that Banker gain is based on
combined net revenues for all companies except Mortgage Lending of America,
since they currently operate as a Mortgage Banker.
Printed May 19, 2000
SCHEDULE OF EXHIBITS
Exhibit
2.1 Mirador Corporate Documents
2.6 1999 Mirador financial Statements
2.13 Mirador Lease
2.14 List of Mirador Agreements
2.16 Salaries/employment
3.7 TCT Liabilities
3.11 TCT intellectual property
3.12 Pending Litigation
3.16 TCT Agreements
3.17 TCT Bank Accounts
Schedule
1 TCT Capitalization
2 Capitalization of Mirador Acquisitions
3 TCT beneficial owners