SECURITIES EXCHANGE AGREEMENT
SECURITIES EXCHANGE AGREEMENT ("this Agreement") dated as of October
3rd, 2000 by and between BRIGHTON TECHNOLOGIES CORPORATION, a Delaware
corporation ("Purchaser"), and the individuals named on Schedule 1.1 hereto that
have executed this Agreement (the "Shareholders") being the shareholders of all
of the shares of the capital stock of SEEDLING TECHNOLOGY VENTURES INCORPORATED,
an Oregon corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Shareholders own all of the outstanding shares (the
"Company Shares") of common stock, $.001 par value of the Company (the "Company
Common Stock"); and
WHEREAS, the Shareholders wish to sell and Purchaser desires to
purchase the Company Shares pursuant to this Agreement in exchange for shares of
the common stock $.001 par value ("Purchaser Stock") of the Purchaser
("Purchaser Shares"); and
WHEREAS, it is the intention of the parties hereto that, upon
consummation of the purchase and sale of the Company Shares pursuant to this
Agreement Purchaser shall own all of the outstanding shares of capital stock of
the Company;
NOW, THEREFORE, IT IS AGREED:
ARTICLE 1
REPRESENTATIONS OF THE SHAREHOLDERS
The Shareholders, individually, represent, warrant and agree as
follows:
1.1 Ownership of Stock. Such Shareholder is the lawful owner of the
number of shares of Company Shares listed opposite the name of such Shareholder
in Schedule 1.1 hereto, free and clear of all preemptive or similar rights,
liens, encumbrances, restrictions and claims of every kind. Such Shareholder has
full legal right, power and authority to enter into this Agreement and to sell,
assign, transfer and convey the Company Shares so owned by such Shareholder
pursuant to this Agreement and the delivery to Purchaser of the Company Shares
by such Shareholder pursuant to the provisions of this Agreement will transfer
to Purchaser valid title thereto, free and clear of all liens, encumbrances,
restrictions and claims of every kind. Such Shareholder is a resident or
incorporated under the laws of the state set forth opposite such Shareholder's
name in Schedule 1.1.
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1.2 Authority to Execute and Perform Agreement; No Breach. Such
Shareholder has the full legal right and power and all authority and approval
required to enter into, execute and deliver this Agreement, and to sell, assign,
transfer and convey the Company Shares owned by such Shareholder and to perform
fully their respective obligations hereunder. This Agreement has been duly
executed and delivered by such Shareholder and, assuming due execution and
delivery by, and enforceability against, Purchaser, constitutes the valid and
binding obligation of such Shareholder enforceable in accordance with its terms,
subject to the qualifications that enforcement of the rights and remedies
created hereby is subject to (i) bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors, and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law). No
approval or consent of, or filing with, any governmental or regulatory body, and
no approval or consent of, or filing with, any other person is required to be
obtained by such Shareholder or in connection with the execution and delivery by
such Shareholder of this Agreement and consummation and performance by them of
the transactions contemplated hereby, other than as set forth on Schedule 1.2.
The execution, delivery and performance of this Agreement by such Shareholder
and the consummation of the transactions contemplated hereby in accordance with
the terms and conditions hereof by such Shareholder will not:
(a) knowingly violate, conflict with or result in the breach of
any of the material terms of, or constitute (or with notice or
lapse of time or both would constitute) a material default
under, any contract, lease, agreement or other instrument or
obligation to which such Shareholder is a party or by or to
which any of the properties and assets of such Shareholder may
be bound or subject;
(b) violate any order, judgment, injunction, award or decree of
any court, arbitrator, governmental or regulatory body, by
which either such Shareholder or the securities, assets,
properties or business of such Shareholder is bound; or
(c) knowingly violate any statute, law or regulation.
1.3 Existence and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Oregon. The Company has the power to own or lease its properties and assets and
to carry on its business as now being conducted. The Company is duly qualified
to do business and is in good standing in Oregon, which is the only jurisdiction
in which the character or location of the properties owned or leased by the
Company or the nature of the business conducted by the Company makes such
qualification necessary. However, the failure to be so qualified or in good
standing in any given jurisdiction will not be deemed to be a breach of this
Section 1.3 unless the failure of the Company to be in good standing in any such
jurisdiction individually or in all such jurisdictions collectively has or is
likely to have a material adverse effect on the Company or on the transactions
contemplated herein.
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1.4 Capital Stock. The Company has an authorized capitalization
consisting of 100,000,000 shares of Common Stock. There are 5,175,000 shares of
Common Stock issued and outstanding. All such outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. Except as
set forth as Schedule 1.4 attached hereto, there are no outstanding options,
warrants, rights, calls, commitments, conversion rights, rights of exchange,
plans or other agreements, commitments or arrangements of any character
providing for the purchase, subscription, issuance or sale of any shares of the
capital stock of the Company, other than the sale of the Company Shares as
contemplated by this Agreement.
1.5 Financial Statements and No Material Changes. Annexed hereto as
Schedule 1.5 are the unaudited consolidated balance sheet of the Company as of
September 30, 2000 (the "Financial Statements").
The Financial Statements were carefully prepared from the books and
records of the Company, and although the Financial Statements are not audited
and do not contain the footnotes which would be required in audited financial
statements, present fairly the financial position, assets and liabilities of the
Company and the results of its operations, for the respective periods indicated
and reflect all necessary accruals, all in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis. The Financial
Statements contain all adjustments (consisting of only normal recurring
accruals) required to be made by GAAP.
Since September 30, 2000 (the "Balance Sheet Date") there has been (a)
no material adverse change in the assets or liabilities, or in the business or
condition, financial or otherwise, or in the results of operations or prospects,
of the Company whether as a result of any legislative or regulatory change,
revocation of any license or rights to do business, fire, explosion, accident,
casualty, labor trouble, flood, drought, riot, storm, condemnation or act of God
or other public force or otherwise and (b) no material adverse change in the
assets or liabilities, or in the business or condition, financial or otherwise,
or in the results of operations or prospects, of the Company and to the best
knowledge, information and belief of the Shareholders, no fact or condition
exists or is contemplated or threatened which might cause such a change in the
future.
1.6 Books and Records. The corporate materials supplied to the
Purchaser are true, correct and complete in all material respects.
1.7 Title to Properties; Encumbrances.
(a) Except as set forth on Schedule 1.7 attached hereto, the
Company has valid and marketable title to (a) all of its
properties and assets (real and personal, tangible and
intangible), including, without limitation, all of the
properties and assets reflected in the balance sheet included
as part of the Financial Statements, except as indicated in
the Schedules hereto; and (b) all of the properties and assets
purchased by the Company since the Balance Sheet Date all of
which purchases as of a date not more than two days prior to
the date of this Agreement, have been set forth on Schedule
1.7 attached hereto; in each case subject to no encumbrance,
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lien, charge or other restriction of any kind or character,
except for (i) liens reflected in the balance sheet, included
as part of the Financial Statements; (ii) liens consisting of
zoning or planning restrictions, easements, permits and other
restrictions or limitations on the use of real property or
irregularities in title thereto which do not materially
detract from the value of, or impair the use of, such property
by the Company in the operation of its business; (iii) liens
for current taxes, assessments or governmental charges or
levies on property not yet due and delinquent; and (iv) liens
described on Schedule 1.7 attached hereto (liens of the type
described in clause (i), (ii) and (iii) above are hereinafter
sometimes referred to as "Permitted Liens").
(b) The rights, properties and other assets presently owned,
leased or licensed, by the Company reflected on the balance
sheet included in the Financial Statements or acquired since
the Balance Sheet Date include all rights, properties and
other assets necessary to permit the Company to conduct its
business in the same manner as its business has heretofore
been conducted. All such properties and assets owned or leased
by the Company are in satisfactory condition and repair, other
than ordinary wear and tear.
To the Shareholders' knowledge, no structure or improvement on
the real property leased by the Company, whether now existing
or intended to be constructed pursuant to existing plans and
specifications, violates, or if completed would violate, any
applicable zoning or building regulations or ordinances or
similar federal, state or municipal law.
With respect to the real property and structures and
improvements, whether now existing, under construction or
intended to be constructed pursuant to existing plans and
specifications, the Company has all governmental permits,
approvals, consents or similar authorizations necessary to own
or lease, construct and operate its properties, each of which
are listed on Schedule 1.7(b). Such governmental permits,
approvals, consents or similar authorizations will remain in
effect or, if due to expire by its terms, the Shareholders
have no reason to believe that they will not be renewable in
accordance with their terms.
To the Shareholders' knowledge, no violations of any easements
or restrictions relating to the real property exist.
To the Shareholders' knowledge, no material structural defects
in any of the buildings or other improvements erected on the
leased real property exist.
1.8 Leases. Schedule 1.8 attached hereto, contains an accurate and
complete list and description of the terms of all leases to which the Company is
a party (as lessee or lessor). Each lease set forth on Schedule 1.8 (or required
to be set forth on Schedule 1.8) is in full force and effect; all rents and
additional rents due to date on each such lease have been paid; in each case,
the lessee has been in peaceable possession since the commencement of the
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original term of such lease and is not in default thereunder and no waiver,
indulgence or postponement of the lessee's obligations thereunder has been
granted by the lessor; and there exists no event of default or event,
occurrence, condition or act (including the consummation of the transactions
contemplated hereby) which, with the giving of notice, the lapse of time or the
happening of any further event or condition, would become a default under such
lease. The Company has not violated any of the terms or conditions under any
such lease in any material respect. The property leased by the Company is in a
state of good maintenance and repair and is adequate and suitable for the
purposes for which it is presently being used.
1.9 Material Contracts. Except as set forth on Schedule 1.9 attached
hereto, the Company is not bound by:
(a) any agreement, contract or commitment relating to the
employment of any person by the Company, or any bonus,
deferred compensation, pension, profit sharing, stock option,
employee stock purchase, retirement or other employee benefit
plan;
(b) any agreement, indenture or other instrument which contains
restrictions with respect to payment of dividends or any other
distribution in respect of its capital stock;
(c) any loan or advance to, or investment in, any individual,
partnership, joint venture, corporation, trust, unincorporated
organization, government or other entity (each a "Person") or
any agreement, contract or commitment relating to the making
of any such loan, advance or investment;
(d) any guarantee or other contingent liability in respect of any
indebtedness or obligation of any Person (other than the
endorsement of negotiable instruments for collection in the
ordinary course of business);
(e) any management service, consulting or any other similar type
contract;
(f) any agreement, contract or commitment limiting the freedom of
the Company or any subsidiary to engage in any line of
business or to compete with any Person;
(g) any agreement, contract or commitment not entered into in the
ordinary course of business which involves $25,000 or more and
is not cancelable without penalty or premium within 30 days;
or
(h) any agreement, contract or commitment which might reasonably
be expected to have a potential adverse impact on the business
or operations of the Company; or
(i) any agreement, contract or commitment not reflected in the
Financial Statement under which the Company is obligated to
make cash payments of, or deliver products or render services
with a value greater than $10,000 individually or $30,000 in
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the aggregate, or receive cash payments of, or receive
products or services with a value greater than $10,000
individually or $30,000 in the aggregate, and any other
agreement, contract or commitment which is material to the
conduct of the business of the Company.
Each contract or agreement set forth on Schedule 1.9 (or not required
to be set forth on Schedule 1.9) is in full force and effect and there exists no
default or event of default or event, occurrence, condition or act (including
the consummation of the transactions contemplated hereby) which, with the giving
of notice, the lapse of time or the happening of any other event or condition,
would become a default or event of default thereunder. The Company has not
violated any of the terms or conditions of any contract or agreement set forth
on Schedule 1.9 (or not required to be set forth on Schedule 1.9) in any
material respect, and, to the knowledge, of the Shareholders, all of the
covenants to be performed by any other party thereto have been fully performed.
Except as set forth on Schedule 1.9, the consummation of the transactions
contemplated hereby does not constitute an event of default (or an event, which
with notice or the lapse of time or both would constitute a default) under any
such contract or agreement.
1.10 Restrictive Documents.
(a) Except as set forth on Schedule 1.10 attached hereto, the
Company is not subject to, or a party to, any charter, by-law,
mortgage, lien, lease, license, permit, agreement, contract,
instrument, law, rule, ordinance, regulation, order, judgment
or decree, or any other restriction of any kind or character,
which could materially adversely affect the business
practices, operations or condition of the Company or any of
its assets or property, or which would prevent consummation of
the transactions contemplated by this Agreement, or the
continued operation of the Company's business after the date
hereof or the Closing Date (as hereinafter defined) on
substantially the same basis as heretofore operated or which
would restrict the ability of the Company to acquire any
property or conduct business in any area.
(b) Except as set forth on Schedule 1.10 attached hereto, each
Shareholder represents that they individually are not subject
to, or a party to, any charter, by-law, mortgage, lien, lease,
license, permit, agreement, contract, instrument, law, rule,
ordinance, regulation, order, judgment or decree, or any other
restriction of any kind or character, or which would prevent
consummation of the transactions contemplated by this
Agreement, compliance by such Shareholder with the terms,
conditions and provisions or which would restrict the ability
of the Company to acquire any property or conduct business in
any area.
1.11 Litigation. Except as set forth on Schedule 1.11 attached hereto,
there is no action, suit, proceeding at law or in equity, arbitration or
administrative or other proceeding by or before (or to the knowledge of the
Shareholders any investigation by) any governmental or other instrumentality or
agency, pending, or, to the knowledge of the Shareholders, threatened, against
or affecting the Company, or any of its properties or rights, other than such
items which are insignificant and immaterial and which do not adversely affect
(i) the right or ability of the Company to carry on business as now conducted;
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(ii) the condition, whether financial or otherwise, or properties of the
Company; or (iii) the consummation of the transactions contemplated hereby. To
the knowledge of the Shareholders there is no valid basis for any such action,
proceeding or investigation. To the knowledge of the Shareholders there are no
outstanding orders, judgments, injunctions, awards or decrees of any court,
governmental or regulatory body or arbitration tribunal by which either the
Company, or any officer, director or employee of the Company, or the securities,
assets, properties or business of any of them is bound, other than any such
items which are insignificant and immaterial and which do not and will not
adversely affect (i) the right of the Company to carry on its business as now
conducted and as proposed to be conducted by the Purchaser after the
consummation of the transactions contemplated by this Agreement; (ii) the
condition, whether financial or otherwise, of properties of the Company; or
(iii) the consummation of the transactions contemplated hereby.
1.12 Taxes. Except as set forth on Schedule 1.12, the Company and every
member of the consolidated group of which the Company is a part has filed or
caused to be filed, within the times and within the manner prescribed by law,
all federal, state, local and foreign tax returns and tax reports which are
required to be filed by, or with respect to, the Company. Such returns and
reports reflect accurately all known liability for taxes of the Company for the
periods covered thereby. Except as set forth on Schedule 1.12, all federal,
state, local and foreign income, profits, franchise, employment, sales, use,
occupancy, excise and other taxes and assessments, stock and transfer taxes
(including interest and penalties) payable by, or shown to be due from, the
Company and any member of the consolidated group of which the Company is a part,
have been fully paid and fully provided for in the books and financial
statements of the Company. To the knowledge of the Shareholders, no examination
of any tax return of the Company or any member of a consolidated group of which
the Company is a part, is currently in progress. There are no outstanding
agreements or waivers extending the statutory period of limitation applicable to
any tax return of the Company.
1.13 Reserved.
1.14 Intellectual Properties.
(a) Since its formation, to the Shareholders' knowledge, the
business of the Company has not utilized any Intellectual
Property (as hereinafter defined) except that which is listed
on Schedule 1.14 and rights granted to the Company pursuant to
the assignment and other ownership rights obtained by common
laws and work for hire employment agreements listed on
Schedule 1.14. Except as otherwise set forth on Schedule 1.14,
to the knowledge of the Shareholders, the Company owns all
right, title and interest in the Intellectual Property listed
on Schedule 1.14 including, without limitation, the rights to
use and license the same. Each item of Intellectual Property
listed on Schedule 1.14 has been duly registered with, filed
in, or issued by the appropriate domestic or foreign
governmental agency, to the extent required, and each such
registration, filing and issuance remains in full force and
effect. Except as set forth on Schedule 1.14, no claim adverse
to the interests of the Company in the Intellectual Property
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or agreements listed on Schedule 1.14 has been made. To the
knowledge of the Shareholders, no such claim has been
threatened or asserted, and no basis exists for any such
claim. To the knowledge of the Shareholders, no Person has
infringed or otherwise violated the rights of the Company in
any of the Intellectual Property or agreements listed on
Schedule 1.14. Except as set forth on Schedule 1.14, no
litigation is pending wherein the Company is accused of
infringing or otherwise violating Intellectual Property rights
of others, or of breaching a contract conveying rights under
Intellectual Property. To the knowledge of the Shareholders,
no such claim has been asserted or threatened against the
Company, nor is the Company or any Shareholder aware of any
facts that would give rise to such a claim. For purposes of
this Section 1.14, "Intellectual Property" means domestic and
foreign patents, patent applications, registered and
unregistered trade marks and service marks, trade names,
registered and unregistered copyrights, computer programs,
data bases, trade secrets, proprietary information, web sites,
web pages, domain names, and links. The Shareholders will
assign any Intellectual Property owned by them and used in the
Company's Business to the Company. To the knowledge of the
Shareholders, the operation of the business of the Company
requires no rights under Intellectual Property (as hereinafter
defined) other than rights under the Intellectual Property
listed on Schedule 1.14 attached hereto, and rights granted to
the Company pursuant to agreements listed on Schedule 1.14.
(b) To the knowledge of the Shareholders, the Company has, at all
times, complied with all laws and regulations which relate to
the provision of e-commerce, content, information, or other
products or services over the World Wide Web.
1.15 Compliance with Laws. To the knowledge of the Shareholders,
neither the Company, nor to the knowledge of the Shareholders, any officer,
director or employee of the Company, is in violation of any applicable order,
judgment, injunction, award or decree, related to, arising out of or affecting
the business or operations of the Company or its properties or assets. To the
knowledge of the Shareholders, neither the Company, nor any officer, director or
employee of the Company is in violation of any federal, state, local or foreign
law, ordinance, regulation or any other requirement of any governmental or
regulatory body, court or arbitrator (including, without limitation, laws
relating to the environment and OSHA and the Americans with Disabilities Act)
other than insignificant or immaterial violations which do not and will not
adversely affect (i) the Company's business or property; (ii) the business
proposed to be conducted by the Purchaser after the consummation of the
transactions contemplated by this Agreement; or (iii) the consummation of the
transactions contemplated by this Agreement. To the knowledge of the
Shareholders, each permit, license, order or approval of any governmental or
regulatory body or other applicable authority ("Permits") that is material to
the conduct of the Company's business is in full force and effect, no violations
are or have been recorded in respect of any permit and no proceeding is pending
or, to the knowledge of the Shareholders, threatened, to revoke or limit any
Permit, which revocation or limitation could have an adverse effect on the
Company's business or property or the business to be conducted by the Purchaser
after the consummation of the transactions contemplated by this Agreement.
Schedule 1.15 contains a list of all Permits. Except as set forth on Schedule
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1.15, no approval or consent of any person is needed in order that the Permits
continue in full force and effect following the consummation of the transactions
contemplated by this Agreement.
1.16 Employment Relations. The Company is in compliance with all
Federal, state or other applicable laws, domestic or foreign, respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and has not and is not engaged in any unfair labor practice.
1.17 Employee Benefit Plans. The Company has no employee welfare
benefit plan (an "Employee Welfare Plan"), as defined in Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
1.18 Interests in Clients, Suppliers, Etc. Except as set forth on
Schedule 1.18 attached hereto, no Shareholder nor any officer or director of the
Company possesses, directly or indirectly, any financial interest in, or is a
director, officer or employee of, any corporation, firm, association or business
organization which is a client, supplier, customer, lessor, lessee, or
competitor or potential competitor of the Company. Ownership of securities of a
company whose securities are registered under the Securities Exchange Act of
1934, as amended, not in excess of 1% of any class of such securities shall not
be deemed to be a financial interest for purposes of this Section 1.18.
1.19 Bank Accounts and Powers of Attorney. Set forth on Schedule 1.19
attached hereto is an accurate and complete list showing (a) the name and
address of each bank in which the Company has an account or safe deposit box,
the number of any such account or any such box and the names of all persons
authorized to draw thereon or to have access thereto; (b) the names of all
persons, if any, holding powers of attorney from the Company and a summary
statement of the terms thereof.
1.20 Reserved.
1.21 Securities Matters. Each Shareholder hereby represents, warrants
and covenants to the Purchaser, as follows:
(a) Such Shareholder understands that the Purchaser Shares have
not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or any state securities act in
reliance on exemptions therefrom.
(b) The Purchaser Shares are being acquired solely for such
Shareholder's own account, for investment and are not being
acquired with a view to or for the resale, distribution,
subdivision or fractionalization thereof, the Shareholder has
no present plans to enter into any such contract, undertaking,
agreement or arrangement and such Shareholder further
understands that the Purchaser Shares, may only be resold
pursuant to a registration statement under the Securities Act,
or pursuant to some other available exemption;
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(c) The Shareholder is an "accredited investor" as that term is
defined in Regulation D of the Securities Act and through its
officers and directors has sufficient knowledge and experience
in financial and business matters to be capable of evaluating
the merits and the risks of its investment in the Purchaser
Shares and is able to bear the economic risk of its investment
in the Purchaser Shares;
(d) Such Shareholder acknowledges, in connection with the purchase
of the Purchaser Shares, that no representation has been made
by representatives of the Purchaser regarding its business,
assets or prospects other than that set forth herein and that
it is relying upon the information set forth in the filings
made by Purchaser pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended and such other
representations and warranties as set forth in this Agreement.
(e) Such Shareholder agrees that the certificate or certificates
representing the Purchaser Shares will be inscribed with
substantially the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933. The securities have been
acquired for investment and may not be sold, transferred assigned in
the absence of an effective registration statement for these securities
under the Securities Act of 1933 or an opinion of Purchaser's counsel
that registration is not required under said Act."
1.22 Certain Business Practices. No officer, director, shareholder,
employee, agent or other representative of the Company, or any person acting on
behalf of the Company has directly or indirectly, within the past five years,
given or agreed to give any illegal, unethical or improper gift or similar
benefit to any customer, supplier, governmental employee or other person who is
or may be in a position to help or hinder the Company or assist the Company in
connection with an actual or proposed transaction.
1.23 Subsidiaries. The Company has no subsidiaries.
1.24 Disclosure. Neither this Agreement, nor the Financial Statements
referred to in Section 1.5 hereof, any Schedule, Exhibit or certificate attached
hereto or delivered in accordance with the terms hereof or any document or
statement in writing which has been supplied by or on behalf of the Shareholders
or by or on behalf of any of the Company's directors or officers in connection
with the transactions contemplated by this Agreement contains any untrue
statement of a material fact, or omits any statement of a material fact
necessary in order to make the statements contained herein or therein not
misleading. To the knowledge of the Shareholders, there is no fact known to the
Shareholders which could materially and adversely affect the business, prospects
or financial condition of the Company or its properties or assets, which has not
been set forth in this Agreement, the Financial Statements referred to in
Section 1.5 hereof (including the footnotes thereto), any Schedule, Exhibit or
certificate attached hereto or delivered in accordance with the terms hereof or
any document or statement in writing which has been supplied by or on behalf of
the Company or by or on behalf of any of the Company's directors or officers in
connection with the transactions contemplated by this Agreement.
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1.25 Broker's or Finder's Fees. No agent, broker, person or firm acting
on behalf of the Company or the Shareholders is, or will be, entitled to any
commission or broker's or finder's fees from any of the parties hereto, or from
any Person controlling, controlled by or under common control with any of the
parties hereto, in connection with any of the transactions contemplated by this
Agreement.
1.26 Copies of Documents. The Shareholders have caused to be made
available for inspection and copying by the Purchaser and its advisers, true,
complete and correct copies of all documents referred to in this Article 1 or in
any Schedule attached hereto.
ARTICLE 2
REPRESENTATIONS OF THE PURCHASER
The Purchaser represents, warrants and agrees as follows:
2.1 Organization and Corporate Power. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and is duly qualified and in good standing to do business as
a foreign corporation in each jurisdiction in which such qualification is
required and where the failure to be so qualified would have a materially
adverse effect upon the Purchaser. The Purchaser has all requisite corporate
power and authority to conduct its business as now being conducted. The
Purchaser's Articles of Incorporation as amended to date, certified by the
Secretary of State of Delaware, and the By-laws of the Purchaser as amended to
date, certified by the President and the Secretary of the Purchaser, which have
been delivered to the Shareholders prior to the execution hereof, are true and
complete copies thereof as in effect as of the date hereof.
2.2 Authorization. The Purchaser has full power, legal capacity and
authority to enter into this Agreement, to execute all attendant documents and
instruments necessary to consummate the transaction herein contemplated, and to
issue and sell the Purchaser Shares to the Shareholders, and to perform all of
its obligations hereunder. This Agreement and all other agreements, documents
and instruments to be executed in connection herewith have been effectively
authorized by all necessary action, corporate or otherwise, on the part of the
Purchaser, which authorizations remain in full force and effect, have been duly
executed and delivered by the Purchaser, and no other corporate proceedings on
the part of the Purchaser are required to authorize this Agreement and the
transactions contemplated hereby, except as specifically set forth herein. This
Agreement constitutes the legal, valid and binding obligation of the Purchaser
and is enforceable with respect to the Purchaser in accordance with its terms,
except as enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, priority or other laws of court decisions relating to or
affecting generally the enforcements of creditors' rights or affecting generally
the availability of equitable remedies. Neither the execution and delivery of
this Agreement, nor the consummation by the Purchaser of any of the transactions
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contemplated hereby, or compliance with any of the provisions hereof, will (i)
conflict with or result in a breach or, violation of, or default under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, lease, credit agreement or other agreement, document, instrument or
obligation (including, without limitation, any of its charter documents) to
which the Purchaser is a party or by which the Purchaser or any of its assets or
properties may be bound, or (ii) violate any judgment, order, injunction,
decree, statute, rule or properties of the Purchaser. No authorization, consent
or approval of any public body of authority or any third party is necessary for
the consummation by the Purchaser of the transactions contemplated by this
Agreement.
2.3 Capitalization. Purchaser has an authorized capitalization
consisting of 100,000,000 shares of Common Stock, of which 6,879,656 shares are
issued and outstanding and 93,120,344 shares of Common Stock are held in
Purchaser's treasury and 5,000,000 shares of Preferred Stock, of which 0 shares
are issued and outstanding and 5,000,000 shares of Preferred Stock are held in
Purchaser's treasury. All such outstanding shares have been duly authorized and
validly issued and are fully paid and non-assessable. Except as set forth on
Schedule 2.3 attached hereto, there are no outstanding options, warrants,
rights, calls, commitments, conversion rights, rights of exchange, plans or
other agreements, commitments or arrangements of any character providing for the
purchase, subscription, issuance or sale of any shares of the capital stock of
Purchaser, other than the exchange of Purchaser Shares as contemplated by this
Agreement.
2.4 Financial Statements and No Material Changes. Annexed hereto as
Schedule 2.4 are the audited financial statements of Purchaser (the "Purchaser's
Financial Statements") for the period ended December 31, 1999.
(a) The Purchaser's Financial Statements are complete in material
respects and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
throughout the periods indicated. The Purchaser's Financial
Statements accurately set out and describe the financial
condition and operating results of the Purchaser as of the
dates, and for the periods indicated therein, subject to
normal year-end audit adjustments. Except as set forth in the
Purchaser's Financial Statements, the Purchaser has no
liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business
subsequent to December 31, 1999 and (ii) obligations under
contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting
principles to be reflected in the Purchaser's Financial
Statements. The Purchaser maintains and will continue to
maintain a standard system of accounting established and
administered in accordance with generally accepted accounting
principles.
(b) Except as set forth in Schedule 2.4, since December 31, 1999
there has been (i) no material adverse change in the assets or
liabilities, or in the business or condition, financial or
otherwise, or in the results of operations or prospects, of
Purchaser whether as a result of any legislative or regulatory
12
change, revocation of any license or rights to do business,
fire, explosion, accident, casualty, labor trouble, flood,
drought, riot, storm, condemnation or act of God or other
public force or otherwise and (ii) no material adverse change
in the assets or liabilities, or in the business or condition,
financial or otherwise, or in the results of operations or
prospects, of Purchaser and to the best knowledge, information
and belief of Purchaser, no fact or condition exists or is
contemplated or threatened which might cause such a change in
the future.
2.5 Subsidiaries. The Purchaser has no subsidiaries and no investments,
directly or indirectly, or other financial interest in any other corporation or
business organization, joint venture or partnership of any kind whatsoever
except set forth in Schedule 2.5.
2.6. Absence of Undisclosed Liabilities. Except as and to the extent
reflected or reserved against in the most recent balance sheet included in the
Purchaser's Financial Statements, the Purchaser has no liability(s) or
obligation(s) (whether accrued, to become due, contingent or otherwise) which
individually or in the aggregate could have a materially adverse effect on the
business, assets, properties, condition (financial or otherwise) or prospects of
the Purchaser. Except as disclosed on Schedule 2.6 hereto, there are no material
changes in the business of the Purchaser.
2.7 No Pending Material Litigation or Proceedings. Except as set forth
on Schedule 2.7, there are no actions, suits or proceedings pending or, to the
best of the Purchaser's knowledge, threatened against or affecting the Purchaser
(including actions, suits or proceedings where liabilities may be adequately
covered by insurance) at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, court, board, bureau,
agency or instrumentality, domestic or foreign, or affecting any of the officers
or directors of the Purchaser in connection with the business, operations or
affairs of the Purchaser, which might result in any adverse change in the
business, properties or assets, or in the condition (financial or otherwise) of
the Purchaser, or which might prevent the sale of the transactions contemplated
by this Agreement.
2.8 Disclosure. Neither this Agreement, nor any certificate, exhibit,
or other written document or statement, furnished to the Shareholders by the
Purchaser in connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to be stated in order to make the
statements contained herein or therein not misleading.
2.9 Tax Returns and Payments. Except as otherwise reflected in the
Purchaser's Financial Statements, Purchaser has timely filed or caused to be
timely filed (including allowable extensions) all material federal, state,
local, foreign and other tax returns for income taxes, sales taxes, withholding
taxes, employment taxes, property taxes, franchise taxes and all other taxes of
every kind whatsoever which are required by law to have been filed. Except as
otherwise reflected in the Purchaser's Financial Statements, Purchaser has paid
or caused to be paid all taxes, assessments, fees, penalties and other
governmental charges which were shown to be due pursuant to said returns and all
other taxes, assessments, fees, penalties and other governmental charges which
13
have become due and payable on said returns. The provisions for income and other
taxes reflected in the Purchaser's Financial Statements make adequate provision
for all accrued and unpaid taxes of Purchaser, whether or not disputed, and
Purchaser has made and will continue to make adequate provision for such taxes
on its books and records. Except as otherwise reflected in the Purchaser's
Financial Statements, Purchaser is not party to any action or proceeding pending
or threatened by any governmental authority for assessment or collection of
taxes; no unresolved claim for assessment or collection of such taxes has been
asserted against Purchaser, and no audit or investigation by state or local
government authorities is under way. Purchaser will make available for review by
the Shareholders or their representatives copies of the federal income and state
franchise tax returns of Purchaser as may be requested.
2.10 Compliance with Law and Government Regulations. The Purchaser is
in compliance with all applicable statutes, regulations, decrees, orders,
restrictions, guidelines and standards, whether mandatory or voluntary, imposed
by the United States of America, any state, county, municipality or agency of
any thereof, and any foreign country or government to which the Purchaser is
subject. Except as set forth on Schedule 2.10, without limiting the generality
of the foregoing, the Purchaser has filed all reports and statements required to
be filed pursuant to the Securities Act of 1933 (the "1933 Act") and Securities
Exchange Act of 1934 (the "1934 Act") including all periodic reports required
under the Section 13 or 15 of the Exchange Act. Each of such reports was
complete, did not contain any material misstatement of or omit to state any
material fact.
2.11 Broker's or Finder's Fees. No agent, broker, person or firm acting
on behalf of the Purchaser is, or will be, entitled to any commission or
broker's or finder's fees from the Shareholders or from any Person controlling,
controlled by or under common control with any of the parties hereto, in
connection with any of the transactions contemplated herein.
2.12 Books and Records. The minute books of Purchaser, all the contents
of which have been previously made available to the Shareholders and their
representatives, contain accurate records of all meetings of, and corporate
action taken by (including action taken by written consent) the shareholders and
Board of Directors of Purchaser. Except as set forth on Schedule 2.12 attached
hereto, Purchaser does not have any of its respective records, systems,
controls, data or information recorded, stored, maintained, operated or
otherwise wholly or partly dependent upon or held by any means (including any
electronic, mechanical or photographic process, whether computerized or not)
which (including all means of access thereto and therefrom) are not under the
exclusive ownership and direct control of Purchaser.
2.13 Title to Properties; Encumbrances.
(a) Except as set forth on Schedule 2.13 attached hereto,
Purchaser has good, valid and marketable title to (a) all of
its properties and assets (real and personal, tangible and
intangible), including, without limitation, all of the
properties and assets reflected in the balance sheet included
as part of the Purchaser's Financial Statements, except as
indicated in the Schedules hereto; and (b) all of the
14
properties and assets purchased by Purchaser since the date of
the Purchaser's Financial Statements all of which purchases as
of a date not more than two days prior to the date of this
Agreement, have been set forth on Schedule 2.13 attached
hereto; in each case subject to no encumbrance, lien, charge
or other restriction of any kind or character, except for (i)
liens reflected in the balance sheet, included as part of the
Purchaser's Financial Statements; (ii) liens consisting of
zoning or planning restrictions, easements, permits and other
restrictions or limitations on the use of real property or
irregularities in title thereto which do not materially
detract from the value of, or impair the use of, such property
by Purchaser in the operation of its business; (iii) liens for
current taxes, assessments or governmental charges or levies
on property not yet due and delinquent; and (iv) liens
described on Schedule 2.13 attached hereto (liens of the type
described in clause (i), (ii) and (iii) above are hereinafter
sometimes referred to as "Permitted Liens").
(b) The rights, properties and other assets presently owned,
leased or licensed, by Purchaser reflected on the balance
sheet included in the Purchaser's Financial Statements or
acquired since the date of the Purchaser's Financial Statement
include all rights, properties and other assets necessary to
permit Purchaser to conduct its business in the same manner as
its business has heretofore been conducted. All such
properties and assets owned or leased by Purchaser are in
satisfactory condition and repair, other than ordinary wear
and tear.
No structure or improvement on the real property leased by
Purchaser, whether now existing or intended to be constructed
pursuant to existing plans and specifications, violates, or if
completed would violate, any applicable zoning or building
regulations or ordinances or similar federal, state or
municipal law.
2.14 Leases. Schedule 2.14 attached hereto, contains an accurate and
complete list and description of the terms of all leases to which either
Purchaser or any of its subsidiaries is a party (as lessee or lessor). Each
lease set forth on Schedule 2.14 (or required to be set forth on Schedule 2.14)
is in full force and effect; all rents and additional rents due to date on each
such lease have been paid; in each case, the lessee has been in peaceable
possession since the commencement of the original term of such lease and is not
in default thereunder and no waiver, indulgence or postponement of the lessee's
obligations thereunder has been granted by the lessor; and there exists no event
of default or event, occurrence, condition or act (including the consummation of
the transactions contemplated hereby) which, with the giving of notice, the
lapse of time or the happening of any further event or condition, would become a
default under such lease. Neither Purchaser nor any of its subsidiaries has
violated any of the terms or conditions under any such lease in any material
respect, and, to the best knowledge, information and belief of Purchaser, all of
the covenants to be performed by any other party under any such lease have been
fully performed. The property leased by Purchaser or any of its subsidiaries is
in a state of good maintenance and repair and is adequate and suitable for the
purposes for which it is presently being used.
2.15 Material Contracts. Except as set forth on Schedule 2.15 attached
hereto, neither Purchaser or its subsidiaries has nor is bound by:
15
(a) any agreement, contract or commitment relating to the
employment of any person by Purchaser or its subsidiaries, or
any bonus, deferred compensation, pension, profit sharing,
stock option, employee stock purchase, retirement or other
employee benefit plan;
(b) any agreement, indenture or other instrument which contains
restrictions with respect to payment of dividends or any other
distribution in respect of its capital stock;
(c) any loan or advance to, or investment in, any individual,
partnership, joint venture, corporation, trust, unincorporated
organization, government or other entity (each a "Person") or
any agreement, contract or commitment relating to the making
of any such loan, advance or investment;
(d) any guarantee or other contingent liability in respect of any
indebtedness or obligation of any Person (other than the
endorsement of negotiable instruments for collection in the
ordinary course of business);
(e) any management service, consulting or any other similar type
contract;
(f) any agreement, contract or commitment limiting the freedom of
Purchaser or any subsidiary to engage in any line of business
or to compete with any Person;
(g) any agreement, contract or commitment not entered into in the
ordinary course of business which involves $25,000 or more and
is not cancelable without penalty or premium within 30 days;
or
(h) any agreement, contract or commitment which might reasonably
be expected to have a potential adverse impact on the business
or operations of Purchaser or any subsidiary; or
(i) any agreement, contract or commitment not reflected in the
Purchaser's Financial Statement under which Purchaser or any
subsidiary is obligated to make cash payments of, or deliver
products or render services with a value greater than $25,000
individually or $100,000 in the aggregate, or receive cash
payments of, or receive products or services with a value
greater than $25,000 individually or $100,000 in the
aggregate, and any other agreement, contract or commitment
which is material to the conduct of the business of Purchaser.
Each contract or agreement set forth on Schedule 2.15 (or not required
to be set forth on Schedule 2.15) is in full force and effect and there exists
no default or event of default or event, occurrence, condition or act (including
the consummation of the transactions contemplated hereby) which, with the giving
of notice, the lapse of time or the happening of any other event or condition,
16
would become a default or event of default thereunder. Neither Purchaser or any
subsidiary has violated any of the terms or conditions of any contract or
agreement set forth on Schedule 2.15 (or not required to be set forth on
Schedule 2.15) in any material respect, and, to the best knowledge, information
and belief of Purchaser, all of the covenants to be performed by any other party
thereto have been fully performed. Except as set forth on Schedule 2.15, the
consummation of the transactions contemplated hereby does not constitute an
event of default (or an event, which with notice or the lapse of time or both
would constitute a default) under any such contract or agreement.
2.16 Restrictive Documents. Other than as set forth on Schedule 2.16
attached hereto, neither Purchaser or any subsidiary, is subject to, or a party
to, any charter, by-law, mortgage, lien, lease, license, permit, agreement,
contract, instrument, law, rule, ordinance, regulation, order, judgment or
decree, or any other restriction of any kind or character, which could
materially adversely affect the business practices, operations or condition of
Purchaser or any of its assets or property ("Purchaser's Property", which for
the purposes of this Agreement includes the assets and property of all of
Purchaser's subsidiaries), or which would prevent consummation of the
transactions contemplated by this Agreement, or the continued operation of
"Purchaser's Business" after the date hereof or the Closing Date (as hereinafter
defined) on substantially the same basis as heretofore operated or which would
restrict the ability of Purchaser to conduct business in any area.
2.17 Liabilities. Except as set forth on Schedule 2.17, Purchaser on a
consolidated basis has no outstanding claims, liabilities or indebtedness,
contingent or otherwise, which are not properly reflected in the Purchaser's
Financial Statements in a manner consistently with past practice, other than
liabilities incurred subsequent to the Purchaser's Financial Statement date in
the ordinary course of business not exceeding $25,000 individually or $100,000
in the aggregate; the reserves reflected in the Financial Statements are
adequate, appropriate and reasonable. Purchaser is not in default in respect of
the terms or conditions of any indebtedness.
2.18 Compliance with Laws. Neither Purchaser nor any of its
subsidiaries, nor to the knowledge of Purchaser, any officer, director or
employee of Purchaser or any of its subsidiaries is in violation of any
applicable order, judgment, injunction, award or decree, related to, arising out
of or affecting the business or operations of Purchaser or any of its
subsidiaries or their respective properties or assets. Neither Purchaser nor any
of its subsidiaries, nor to the knowledge of Purchaser, any officer, director or
employee of either Purchaser or any of its subsidiaries is in violation of any
federal, state, local or foreign law, ordinance, regulation or any other
requirement of any governmental or regulatory body, court or arbitrator
(including, without limitation, laws relating to the environment and OSHA and
the Americans with Disabilities Act) other than insignificant or immaterial
violations which do not and will not adversely affect (i) Purchaser's Business
or Property; (ii) the business proposed to be conducted by the Shareholders
after the consummation of the transactions contemplated by this Agreement; or
(iii) the consummation of the transactions contemplated by this Agreement. Each
permit, license, order or approval of any governmental or regulatory body or
other applicable authority ("Permits") that is material to the conduct of
Purchaser's Business is in full force and effect, no violations are or have been
recorded in respect of any permit and no proceeding is pending or, to the
17
knowledge of Purchaser, threatened, to revoke or limit any Permit, which
revocation or limitation could have an adverse effect on Purchaser's Business or
Property or the business to be conducted by Purchaser after the consummation of
the transactions contemplated by this Agreement. Schedule 2.18 contains a list
of all Permits. Except as set forth on Schedule 2.18, no approval or consent of
any person is needed in order that the Permits continue in full force and effect
following the consummation of the transactions contemplated by this Agreement.
2.19 Employment Relations.
(a) Purchaser and each of its subsidiaries is in compliance with
all Federal, state or other applicable laws, domestic or
foreign, respecting employment and employment practices, terms
and conditions of employment and wages and hours, and has not
and is not engaged in any unfair labor practice;
(b) no unfair labor practice complaint against Purchaser or any of
its subsidiaries is currently pending before the National
Labor Relations Board nor has such a complaint been pending in
the last two years;
(c) there is no labor strike, dispute, slowdown or stoppage
actually pending or threatened against or involving Purchaser
or any of its subsidiaries nor has one existed during the last
two years;
(d) no representation question exists respecting the employees of
Purchaser or any of its subsidiaries;
(e) no grievance which might have an adverse effect upon Purchaser
or any of its subsidiaries or the conduct of Purchaser's
Business exists, no arbitration proceeding arising out of or
under any collective bargaining agreement is pending and no
claim therefor has been asserted;
(f) Neither Purchaser nor any of its subsidiaries is a party to,
nor does there otherwise exist, any union, collective
bargaining agreement or similar agreement with respect to the
employees of Purchaser or any of its subsidiaries and no
collective bargaining agreement or similar agreement is
currently being negotiated by Purchaser or any of its
subsidiaries; and
(g) Neither Purchaser nor any of its subsidiaries has experienced
any labor difficulty during the last two years. There has not
been any adverse change in relations with employees of
Purchaser or any of its subsidiaries as a result of any
announcement of the transactions contemplated by this
Agreement.
2.20 Employee Benefit Plans.
(a) Schedule 2.20 contains a complete list, as of August 31, 2000,
of all employees, including their names, birthdates, job
titles, base salaries and dates of hire. Schedule 2.20
18
contains a true and complete list and accurate description of
each employee welfare benefit plan (an "Employee Welfare
Plan"), as defined in Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), maintained
currently or at any time by Purchaser or any other
organization which as of the Closing Date is a member of a
controlled group of organizations within the meaning of
Section 414(b), (c), (m) or (o) of the Internal Revenue Code
of 1986, as amended, (the "Code"), of which Purchaser is a
member (an "ERISA Affiliate"), or to which Purchaser or any
ERISA Affiliate contributes or is required to contribute or
contributed or was required to contribute at any time.
Schedule 2.20 contains a true and complete list and accurate
description of each employee pension benefit plan, as defined
in Section 3(2) of ERISA (an "Employee Pension Plan"),
maintained currently or at any time by the Shareholders or any
ERISA affiliate or to which Purchaser or any ERISA Affiliate
contributes or is required to contribute or contributed or was
required to contribute at any time. The Employee Welfare
Plans, the Employee Pension Plans and the other plans listed
on Schedule 2.20 are collectively referred to herein as the
"Plans." Neither Purchaser nor any ERISA Affiliate has
maintained at any time, nor does it contribute to or has it
contributed to or is or was required to contribute to: (i) any
multi-employer plan (as defined in Section 3(37) of ERISA); or
(ii) any funded or unfunded medical, health or life insurance
plans or arrangements for current or future retirees or
terminated employees.
(b) With respect to each current Plan, the Shareholders have been
provided heretofore with true and complete copies of: (i) all
Plan documents and all documents or instruments establishing
or constituting any related trust, annuity contract or other
funding instrument, and any amendments thereto; (ii) the most
recent determination letter received from the IRS; (iii) the
most recent financial statement; (iv) the most recent IRS Form
5500; and (v) written descriptions of all non-written
agreements relating to the Plans. All current Plans, all Plan
documents and all documents or instruments establishing or
constituting any related trust, annuity contract or other
funding instrument, and any amendments thereto, comply in all
material respects with the provisions of ERISA and the Code
and applicable laws, rules and regulations. All necessary
governmental approvals for all current Plans have been
obtained and favorable determinations as to the qualification
under the Code of each of the current Plans, and for any Code
Section 501(c)(9) trust maintained in connection with any
current Employee Welfare Plan, and each amendment thereto,
have been made by the IRS, or have been applied for and no
event has occurred and no facts or circumstances exist that
may cause the loss of any such qualification or may cause any
such application to be denied.
(c) Except as set forth on Schedule 2.20, the administration of
all Plans has been consistent with, and in compliance in all
material respects with, applicable requirements of the Code
and ERISA, including, without limitation, compliance on a
timely basis with all requirements for reporting, disclosure
19
and requirements for the continuation of group health
insurance. Neither Purchaser, any ERISA Affiliate nor any Plan
fiduciary (as defined in Section 3(21) of ERISA), with respect
to any Plan, has engaged in any transaction or acted or failed
to act in any manner that violates Section 404 or 406 of ERISA
or engaged in any prohibited transaction (as defined in
Section 4975(c)(1) of the Code) for which there exists neither
a statutory nor regulatory exemption or for which an exemption
has not been obtained. All obligations required to be
performed by Purchaser or any ERISA Affiliate under each Plan
have been performed, and Purchaser is not in violation of the
terms of any Plan, nor does Purchaser have any knowledge of
any existing violation by any other party of any term or
requirement of or applicable to any current Plan. All
contributions required by law to have been made under any
Plan, or to any trusts or funds established thereunder or in
connection therewith, have been made by the due dates thereof
(including any valid extensions).
(d) No claims, suits or other proceedings are pending or
threatened, and no facts or circumstances exist that could
provide a basis for any such claim, suit or other proceeding,
by Purchaser' or any ERISA Affiliate's current or former
employees, any participant (as defined in Section 3(7) of
ERISA) to any Plan maintained at any time by Purchaser or any
ERISA Affiliate to which Purchaser contributes or has
contributed or is or was required to contribute, any fiduciary
of any Plan, any beneficiary (as defined in Section 3(8) of
ERISA) of any such person or by any governmental body, agency
or instrumentality thereof relating to or affecting any Plan,
other than usual and ordinary claims for benefits by eligible
persons. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby
will constitute: (i) a termination of employment or other
event entitling any person to any additional or other
benefits, or that would otherwise modify any benefits or the
vesting of any benefits, under any Plan maintained at any time
by Purchaser or any ERISA affiliate, or to which Purchaser or
any ERISA Affiliate contributes or has contributed or is or
was required to contribute; or (ii) a violation of Section 404
or 406 of ERISA or a prohibited transaction (as defined in
Section 4975(c)(1) of the Code) for which there exists neither
a statutory nor regulatory exemption or for which an exemption
has not been obtained.
(e) Neither Purchaser nor any ERISA Affiliate maintains any Plans
that are subject to the requirements of Section 412 of the
Code.
2.21 Environmental Laws and Regulations.
(a) Neither Purchaser nor any of its subsidiaries has generated,
transported or disposed of any hazardous material (defined
below) during the past three years.
(b) Neither Purchaser nor any of its subsidiaries has Hazardous
Materials at any site or facility owned or operated presently
or at any previous time by Purchaser or any of its
subsidiaries.
20
Purchaser and its subsidiaries are in compliance in all material
respects with all applicable federal, state and local laws and regulations
relating to product registration, pollution control and environmental
contamination including, but not limited to, all laws and regulations governing
the generation, use, collection, discharge, or disposal of Hazardous Materials
and all laws and regulations with regard to record keeping, notification and
reporting requirements respecting Hazardous Materials. Neither Purchaser nor any
of its subsidiaries has been alleged to be in violation of, and has not been
subject to any administrative or judicial proceeding pursuant to, such laws or
regulations either now or any time during the past three years. There are no
facts or circumstances which Purchaser reasonably expects could form the basis
for the assertion of any Environmental Claim (as defined below) against
Purchaser or any of its subsidiaries relating to environmental matters
including, but not limited to, any Environmental Claim arising from past or
present environmental practices asserted under CERCLA (as defined below) and
RCRA (as defined below), or any other federal, state or local environmental
statute, which Purchaser believes might have an adverse effect on the business,
results of operations, financial condition or prospects of Purchaser and its
subsidiaries taken as a whole.
For purposes of this Section 2.21, the following terms shall have the
following meanings: (A) "Hazardous Materials" shall mean materials defined as
"hazardous substances", "hazardous wastes" or "solid wastes" in (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. ss.ss. 9601--5657, and any amendments thereto ("CERCLA"); (ii) the
Resource Conservation and Recovery Act, 42 U.S.C. ss.ss.6901-6987 and any
amendments thereto ("RCRA"); and (iii) any similar federal, state or local
environmental statute; and (B) "Environmental Claim" shall mean any and all
claims, demands, causes of actions, suits, proceedings, administrative
proceedings, losses, judgments, decrees, debts, damages, liabilities, court
costs, attorneys' fees and any other expenses incurred, assessed or sustained by
or against Purchaser.
2.22 Interests in Clients, Suppliers, Etc. At closing and in accordance
with the respective employment agreement, except as set forth on Schedule 2.22
attached hereto, as of the date of closing no officer or director of Purchaser
or any of its subsidiaries possesses, directly or indirectly, any financial
interest in, or is a director, officer or employee of, any corporation, firm,
association or business organization which is a client, supplier, customer,
lessor, lessee, or competitor or potential competitor of Purchaser. Ownership of
securities of a company whose securities are registered under the Securities
Exchange Act of 1934, as amended, not in excess of 1% of any class of such
securities shall not be deemed to be a financial interest for purposes of this
Section 2.22.
ARTICLE 3
SALE OF SHARES
21
3.1 Sale of Shares. Subject to the terms and conditions herein stated,
the Shareholders agree to sell, assign, transfer and deliver to Purchaser on the
Closing Date, and Purchaser agrees to purchase the Company Shares from the
Shareholders on the Closing Date. The certificates representing the Company
Shares shall be duly endorsed in blank, or accompanied by stock powers duly
executed in blank, by the Shareholders transferring the same, with all necessary
transfer tax and other revenue stamps, acquired at Shareholders' expense,
affixed and canceled. The Shareholders agree to cure any deficiencies with
respect to the endorsement of the certificates representing the Company Shares
owned by the Shareholders or with respect to the stock power accompanying any
such certificates.
3.2 Price for the Company Shares. In full consideration for the
acquisition of the Company Shares, the Purchaser will issue to the Shareholders
an aggregate of 39,120,344 Purchaser Shares which shall represent 85% of the
issued and outstanding shares of Purchaser's Common Stock immediately after the
Closing.
3.3 Closing. The sales referred to in Sections 3.1 shall take place at
10:00 A.M. at the offices of Sommer & Schneider LLP, 595 Stewart Avenue, Suite
710, Garden City, New York, 11530 at two business days after all the conditions
set forth in Articles 4 and 5 have been fulfilled or waived, but not later than
October 5th, 2000, or at such other time and date as the parties hereto shall
agree in writing. Such time and date are herein referred to as the "Closing
Date."
ARTICLE 4
CONDITIONS TO PURCHASER'S OBLIGATIONS
The purchase of the Company Shares by Purchaser on the Closing Date is
conditioned upon satisfaction, on or prior to such date, of the following
conditions:
4.1 Reserved.
4.2 Good Standing and Other Certificates. The Shareholders shall have
delivered to the Purchaser:
(a) copies of the Company's charter including all amendments
thereto, in each case certified by the Secretary of State or
other appropriate official of its jurisdiction of
incorporation;
(b) a certificate from the Secretary of State or other appropriate
official of their respective jurisdictions of incorporation to
the effect that the Company is in good standing or subsisting
in such jurisdiction and listing all charter documents
including all amendments thereto, of the Company's charter
documents on file;
(c) a copy of the By-Laws of the Company, certified by the
respective Secretary of each entity as being true and correct
and in effect on the Closing Date.
22
(d) a resolution of the Company's Board of Directors certified by
their respective Secretary approving the transactions
contemplated hereby.
4.3 No Material Adverse Change. Prior to the Closing Date, there shall
be no material adverse change in the assets or liabilities, the business or
condition, financial or otherwise, the results of operations, or prospects of
the Company, whether as a result of any legislative or regulatory change,
revocation of any license or rights to do business, fire, explosion, accident,
casualty, labor trouble, flood, drought, riot, storm, condemnation or act of God
or other public force or otherwise, and the Shareholders shall have delivered to
the Purchaser a certificate signed by the Company's duly authorized
representative, dated the Closing Date, to such effect.
4.4 Reserved.
4.5 Truth of Representations and Warranties. The representations and
warranties of each Shareholder contained in this Agreement or in any Schedule
attached hereto shall be true and correct on and as of the Closing Date with the
same effect as though such representations and warranties had been made on and
as of such date.
4.6 Performance of Agreements. All of the agreements of each
Shareholder to be performed on or before the Closing Date pursuant to the terms
hereof shall have been duly performed, and the Shareholders shall have delivered
to the Purchaser a certificate, signed by the Shareholders' duly authorized
representative dated the Closing Date, to such effect.
4.7 No Litigation Threatened. No action or proceedings shall have been
instituted or threatened before a court or other government body or by any
public authority to restrain or prohibit any of the transactions contemplated
hereby, and the Shareholders shall have delivered to the Purchaser a certificate
signed by the Shareholders' duly authorized representative, dated the Closing
Date, to such effect.
4.8 Reserved.
4.9 Governmental Approvals. All governmental and other consents and
approvals, if any, necessary to permit the consummation of the transactions
contemplated by this Agreement shall have been received.
4.10 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement and all documents incident thereto
shall be satisfactory in form and substance to the Purchaser and their counsel,
and the Purchaser shall have received copies of all such documents and other
evidences as they or their counsel may reasonably request in order to establish
the consummation of such transactions and the taking of all proceedings in
connection therewith.
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4.11 Closing. The transactions contemplated by this Agreement shall
have been consummated by October 5th, 2000.
ARTICLE 5
CONDITIONS TO THE OBLIGATIONS OF
THE SHAREHOLDERS
The obligations of the Shareholders on the Closing Date are conditioned
upon satisfaction, on or prior to such date, of the following conditions:
5.1 Reserved.
5.2 Good Standing Certificates. The Purchaser shall have delivered to
the Shareholders:
(a) copies of the Certificate of Incorporation of the Purchaser,
including all amendments thereto, certified by the Secretary
of State of the State of Delaware; and
(b) certificates from the Secretary of State of the State of
Delaware to the effect that Purchaser is in good standing in
such State and listing all charter documents, including all
amendments thereto, of Purchaser on file.
5.3 Truth of Representations and Warranties. The representations and
warranties of the Purchaser contained in this Agreement shall be true and
correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, and
Purchaser shall have delivered to the Shareholder a certificate, dated the
Closing Date, to such effect.
5.4 Governmental Approvals. All governmental consents and approvals, if
any, necessary to permit the consummation of the transactions contemplated by
this Agreement shall have been received.
5.5 Performance of Agreements. All of the agreements of the Purchaser
to be performed on or before the Closing Date pursuant to the terms hereof shall
have been duly performed, and the Purchaser shall have delivered to the
Shareholder a certificate, dated the Closing Date, to such effect.
5.6 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement and all documents incident thereto
shall be reasonably satisfactory in form and substance to the Shareholders and
their counsel, and the Shareholders shall have received copies of all such
documents and other evidences as they or their counsel may reasonably request in
order to establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
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5.7 Lock-Up Agreements. Kit Kung, the Purchaser's Chairman and CEO
shall have entered into a lock-up agreement with the Purchaser in the form
annexed hereto as Exhibit 5A.
5.8 Forgiveness of Kit Kung's and Hong Yun's Indebtedness and
Cancellation of Employment Agreements. Purchaser shall have issued an aggregate
of 889,927 shares of Purchaser's Common Stock to Kit Kung and Hong Yun, his
spouse, in lieu of all outstanding indebtedness, including unpaid salaries due
Kit Kung and Hong Yun. In connection therewith, Kit Kung and Hong Yun shall have
entered into a termination agreement, terminating their respective employment
agreements with the Purchaser in the form annexed hereto as Exhibit 5B.
5.9 Reserved.
5.10 Board Representation. At Closing, each current member of the Board
of Directors, except Kit Kung, shall resign and vote in favor of Purchaser's
designees to fill the vacancies caused by such resignations.
5.11 Assumption Agreement. Kit Kung and Easi-Link shall have entered
into a secured Assignment and Assumption Agreement with Purchaser whereby Kit
Kung and Easi-Link agree to assume all of Purchaser's liabilities except
liabilities due to Purchaser's current accounting firm and a maximum of $100,000
for unpaid salaries due to Purchaser's employees, other than Kit Kung and Hong
Yun. The collateral underlying this Agreement shall be a pledge of 889,927
shares of Purchaser's Common Stock owned by Kit Kung.
5.12 Closing. The transactions contemplated by this Agreement shall
have been consummated by October 5th, 2000.
ARTICLE 6
CONDUCT OF BUSINESS; EXCLUSIVE DEALING; REVIEW
6.1. Conduct of Business of the Company. During the period from the
date of this Agreement to the Closing Date, the Shareholders shall cause the
Company and each of its subsidiaries to conduct their respective operations only
according to their ordinary and usual course of business and to use their best
efforts to preserve intact their respective business organizations, keep
available the services of their officers and employees and maintain satisfactory
relationships with licensors, suppliers, distributors, clients and others having
business relationships with them. Notwithstanding the immediately preceding
sentence, prior to the Closing Date, except as may be first approved by the
Purchaser or as is otherwise permitted or required by this Agreement, the
Shareholders will cause (a) the Company's and each of its subsidiaries'
respective Certificate of Incorporation and By-Laws to be maintained in their
form on the date of this Agreement, (b) the compensation payable or to become
payable by the Company and each of its subsidiaries to any officer, employee or
agent being paid $50,000 per year or more on the Balance Sheet Date to be
25
maintained at their levels on the date of this Agreement, (c) the Company and
each of its subsidiaries to refrain from making any bonus, pension, retirement
or insurance payment or arrangement to or with any such persons except those
that may have already been accrued, (d) the Company and each of its subsidiaries
to refrain from entering into any contract or commitment except contracts in the
ordinary course of business, (e) the Company and each of its subsidiaries to
refrain from making any change affecting any bank, safe deposit or power of
attorney arrangements of the Company or any such subsidiary and (f) the Company
and each of its subsidiaries to refrain from taking any of the actions referred
to in Section 1.20 hereof. The Shareholders agree not to take any action, or
omit to take any action, which would cause the representations and warranties
contained in Article I hereof to be untrue or incorrect. During the period from
the date of this Agreement to the Closing Date, the Shareholders shall cause the
Company to confer on a regular and frequent basis with one or more designated
representatives of the Purchaser to report material operational matters and to
report the general status of ongoing operations. The Shareholders shall cause
the Company and each of its subsidiaries to notify Purchaser of any unexpected
emergency or other change in the normal course of its business or in the
operation of its properties and of any governmental complaints, investigations
or hearings (or communications indicating that the same may be contemplated),
adjudicatory proceedings, budget meetings or submissions involving any material
property of the Company and each of its subsidiaries, and to keep Purchaser
fully informed of such events and permit its representatives prompt access to
all materials prepared in connection therewith.
6.2. Exclusive Dealing. During the period from the date of this
Agreement to the Closing Date, the Shareholders shall not, and shall cause the
Company to refrain from taking any action to, directly or indirectly, encourage,
initiate or engage in discussions or negotiations with, or provide any
information to, any Person, other than the Purchaser, concerning any purchase of
the Stock or any merger, sale of substantial assets or similar transaction
involving the Company.
6.3. Review of the Company. The Purchaser may, prior to the Closing
Date, through their representatives, review the properties, books and records of
the Company and each of its subsidiaries and its financial and legal condition
as they deem necessary or advisable to familiarize themselves with such
properties and other matters; such review shall not, however, affect the
representations and warranties made by the Shareholders hereunder or the
remedies of the Purchaser for breaches of those representations and warranties.
The Shareholders shall cause the Company and each of its subsidiaries to permit
the Purchaser and their representatives to have, after the date of execution of
this Agreement, full access to the premises and to all the books and records of
the Company and its subsidiaries and to cause the officers of the Company and
each of its subsidiaries to furnish the Purchaser with such financial and
operating data and other information with respect to the business and properties
of the Company and its subsidiaries as the Purchaser shall from time to time
reasonably request. In the event of termination of this Agreement, the Purchaser
shall keep confidential any material information obtained from the Shareholders
or the Company or any subsidiary concerning the Company's and its subsidiaries'
respective properties, operations and business (unless readily ascertainable
from public or published information or trade sources) until the same ceases to
26
be material (or becomes so ascertainable) and, at the request of the
Shareholders, shall return to the Company and its subsidiaries all copies of any
schedules, statements, documents or other written information obtained in
connection therewith. The Shareholders shall deliver or cause to be delivered
such additional instruments as the Purchaser may reasonably request for the
purpose of consummating the transactions contemplated by this Agreement.
ARTICLE 7
SURVIVAL OF REPRESENTATIONS; INDEMNITY; SET-OFF
7.1 Survival of Covenants and Agreements. The respective
representations, warranties, covenants and agreements of the Shareholders and
the Purchaser contained in this Agreement, or any Schedule attached hereto or
any agreement or document delivered pursuant to this Agreement shall survive for
a period of two years from the consummation of the transactions contemplated
hereby; provided, however, that the representations, warranties and agreements
made with regard to taxes and ERISA matters shall survive until the applicable
statutes of limitations have expired; and provided further, however, that with
respect to any covenant, term or provision to be performed hereunder or in any
of the Schedules hereto or any documents or agreements delivered hereunder, the
right of indemnification under this Article 8 shall survive until such covenant,
term or provision has been fully paid, performed or discharged.
7.2 Indemnification.
(a) The Shareholders agree to indemnify and hold the Purchaser and
their officers, directors, shareholders, employees, affiliates
and agents harmless from damages, losses, liabilities,
assessments, judgments, costs or expenses (including, without
limitation, penalties, interest and reasonable counsel fees
and expenses), (each a "Claim"), in excess of $25,000 in the
aggregate, as a result of or arising out of the material
breach of any representation or warranty made by the
Shareholders, or the failure of any material representation or
warranty made by the Shareholders in this Agreement or in any
Schedule attached hereto or any document or agreement
delivered hereunder to be true and correct in all material
respects as of the date of this Agreement and as of the
Closing Date or the non-performance by the Shareholders of any
covenant, term or provision to be performed by it hereunder or
in any of the documents or agreements delivered hereunder
which may be imposed or sought to be imposed on Purchaser or
the Shareholders.
(b) The Purchaser agrees to indemnify and hold the Shareholders
and each of their officers, directors, shareholders,
employees, affiliates and agents harmless from damages, losses
or expenses (including, without limitation, reasonable counsel
fees and expenses) in excess of $25,000, in the aggregate,
suffered or paid, directly or indirectly, as a result of or
arising out of the failure of any representation or warranty
made by the Purchaser in this Agreement to be true and correct
in all respects as of the date of this Agreement and as of the
Closing Date.
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7.3 Conditions of Indemnification.
(a) A party entitled to indemnification hereunder (the
"Indemnified Party") shall notify the party or parties liable
for such indemnification (the "Indemnified Party") in writing
of any Claim or potential liability for Taxes ("Tax Claim")
which the Indemnified Party has determined has given or could
give rise to a right of indemnification under this Agreement.
Such notice shall be given within a reasonable (taking into
account the nature of the Claim or Tax Claim) period of time
after the Indemnified Party has actual knowledge thereof. The
Indemnifying Party shall satisfy its obligations under this
Article 7 within forty days after receipt of subsequent
written notice from the Indemnified Party if an amount is
specified therein, or promptly following receipt of subsequent
written notice or notices specifying the amount of such Claim
or Tax Claim additions thereto; provided, however, that for so
long as the Indemnifying Party is in good faith defending a
Claim or Tax Claim pursuant to Section 7.3(b) hereof, its
obligation to indemnify the Indemnified Party with respect
thereto shall be suspended (other than with respect to any
costs, expenses or other liabilities incurred by the
Indemnified Party prior to the assumption of the defense by
the Indemnifying Party). Failure to provide a notice of Claim
or Tax Claim within the time period referred to above shall
not constitute a defense to a Claim or Tax Claim or release
the Indemnifying Party from any obligation hereunder to the
extent that such failure does not prejudice the position of
the Indemnifying Party.
(b) If the facts giving rise to any such indemnification involve
any actual, threatened or possible Claim or demand or Tax
Claim by any person not a party to this Agreement against the
Indemnified Party, the Indemnifying Party shall be entitled to
contest or defend such Claim or demand Tax Claim at its
expense and through counsel of its own choosing, which counsel
shall be reasonably acceptable to the Indemnified Party, such
right to contest or defend shall only apply if the
Indemnifying Party gave written notice of its intention to
assume the contest and defense of such Claim or demand Tax
Claim to the Indemnified Party as soon as practicable, but in
no event more than thirty days after receipt of the notice of
Claims or Tax Claim, and provided the Indemnified Party with
appropriate assurances as to the creditworthiness of the
Indemnifying Party, and that the Indemnifying Party will be in
a position to pay all fees, expenses and judgments that might
arise out of such Claim or demand Tax Claim. The Indemnified
Party shall have the obligation to cooperate in the defense of
any such Claim or demand Tax Claim and the right, at its own
expense, to participate in the defense of any Claim or Tax
Claim. So long as the Indemnifying Party is defending in good
faith any such Claim or demand Tax Claim asserted by a third
party against the Indemnified Party, the Indemnified Party
shall not settle or compromise such Claim or demand Tax Claim.
The Indemnifying Party shall have the right to settle or
compromise any such Claim or demand Tax Claim without the
consent of the Indemnified Party at any time utilizing its own
funds to do so if in connection with such settlement or
28
compromise the Indemnified Party is fully released by the
third party and is paid in full any indemnification amounts
due hereunder. The Indemnified Party shall make available to
the Indemnifying Party or its agents all records and other
materials in the Indemnified Party's possession reasonably
required by it for its use in contesting any third party Claim
or demand Tax Claim and shall otherwise cooperate, at the
expense of the Indemnifying Party, in the defense thereof in
such manner as the Indemnifying Party may reasonably request.
Whether or not the Indemnifying Party elects to defend such
Claim or demand Tax Claim, the Indemnified Party shall have no
obligation to do so.
7.4 Payment of Indemnification Liabilities. All payments of claims to
an indemnified party may be made by wire transfer of immediately available funds
within 10 business days after the date of the notice of sums due and owing
provided for in Section 7.2
ARTICLE 8
MISCELLANEOUS
8.1 Knowledge of the Shareholders. Knowledge means, with respect to any
person, the actual or constructive knowledge of such person and, in the case of
a corporation, the actual or constructive knowledge of its executive officers
and directors.
8.2 Expenses. The parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
8.3 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of Delaware applicable to agreements executed and to be performed solely
within such State without regard to conflicts of laws.
8.4 Jurisdiction. Any judicial proceeding brought against any of the
parties to this Agreement on any dispute arising out of this Agreement or any
matter related hereto may be brought in the courts of the State of Oregon, or in
the United States District Court for Portland, Oregon, and, by execution and
delivery of this Agreement, each of the parties to this Agreement accepts the
exclusive jurisdiction of such courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement. The prevailing
party or parties in any such litigation shall be entitled to receive from the
losing party or parties all costs and expenses, including reasonable counsel
fees, incurred by the prevailing party or parties
8.5 Captions. The Article and Section captions used herein for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
29
8.6 Publicity. Except as otherwise required by law, none of the parties
hereto shall issue any press release or make any other public statement, in each
case relating to, connected with or arising out of this Agreement or the matters
contained herein, without obtaining the prior approval of Purchaser,
Shareholders and the Company to the contents and the manner of presentation and
publication thereof. The parties hereto agree that the execution of this
Agreement requires the release of information to the financial press concerning
this acquisition and accordingly agree to promptly issue a press release
mutually acceptable to the Company and the Purchaser.
8.7 Notices. Any notice or other communication required or permitted
hereunder shall be deemed sufficiently given when delivered in person, one
business day after delivery to a reputable overnight carrier, four business days
if delivered by registered or certified mail, postage prepaid or when sent by
telecopy with a copy following by hand or overnight carrier or mailed, certified
or registered mail, postage prepaid, addressed as follows:
If to the Purchaser:
Brighton Technologies Corporation
6 Pearl Court
Allendale, NJ 07401
If to Shareholders:
Seedling Technology Ventures Incorporated
15455 NW Greenbrier Parkway, #210
Beaverton, Oregon 87007
Attn: Douglas Spink
with a required copy to:
Sommer & Schneider LLP
595 Stewart Avenue, Suite 710
Garden City, NY 11530
The failure to give notice to one or more Shareholders shall not affect
the validity of notices otherwise properly given.
8.8 Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
30
8.9 Counterparts. This Agreement may be executed in two or more
counterparts and delivered by facsimile all of which taken together shall
constitute one instrument.
8.10 Entire Agreement. This Agreement, including the Schedules hereto
and the other documents referred to herein which form a part hereof, contain the
entire understanding of the parties hereto with respect to the subject matter
contained herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
8.11 Amendments. This Agreement may not be changed orally, but only by
an agreement in writing signed by Purchaser and the Shareholders holding a
majority of the Company Shares.
8.12 Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
8.13 Third Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereof.
8.14 Cooperation After Closing.From and after the Closing Date, each of
the parties hereto shall execute such documents and other papers and take such
further actions as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Purchaser and Shareholders have
executed this Agreement, all as of the day and year first above written.
PURCHASER:
BRIGHTON TECHNOLOGIES CORPORATION
By: /s/ Kit Kung
---------------------------------------
Kit Kung
Title: Chairman and Chief Executive Officer
SHAREHOLDERS:
/s/ Douglas B. Spink
--------------------
Douglas B. Spink
/s/ Paul R. Peterson
--------------------
Paul R. Peterson
/s/ Neal J. Wozniak
--------------------
Neal J. Wozniak
Shizuko Ota 2000 Irrevocable Trust
By: /s/ Frank Lucketti
---------------------------------------
Frank Lucketti and Chiemi Ota, Trustees
/s/ Frank Lucketti
---------------------------------------
Frank Lucketti and Chiemi Ota,
Joint Tenants in Common
32