Exhibit 2.1
SECURITIES EXCHANGE AGREEMENT
SECURITIES EXCHANGE AGREEMENT (this "Agreement") dated as of November
23, 2001 by and between COLUMBIALUM, LTD., a Nevada corporation ("Columbialum"),
and the individuals whose names appear on the signature page hereof, each being
a shareholder (the "Shareholders") of INTEGRA STAFFING, INC., a Florida
corporation ("Integra").
W I T N E S S E T H:
WHEREAS, as of November 23rd, 2001 there are 1,000 outstanding shares
of the common stock, $.01 par value of Integra (the "Integra Stock") all of
which are owned beneficially and of record, by the Shareholders who together own
100% of the issued and outstanding shares of Integra Stock, each owning the
number of shares set forth opposite their respective names on the signature page
hereof.
WHEREAS, Columbialum proposes to exchange 100% of the outstanding $0.01
par value common stock of Integra (the "Integra Stock") for the issuance of an
aggregate of 1,500,000 shares of Columbialum $0.001 par value common stock
("Columbialum Stock"), representing 60.0% of the issued and outstanding
Columbialum Stock at a closing provided for in Section 2 of this Agreement.
WHEREAS, the Board of Directors of Columbialum and Integra have
determined that it is desirable to effect a plan of reorganization meeting the
requirement of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended and the parties intend that the issuance of the Columbialum Stock and
exchange for the Integra Stock shall qualify as a "tax free" reorganization as
contemplated by the provisions of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants, agreements, representations and warranties contained herein,
the parties hereto agree as follows:
ARTICLE 1
ISSUANCE AND EXCHANGE OF SHARES
1.1 Issuance and Exchange. At Closing to be held in accordance with the
provisions of Article 2 below and subject to the terms and agreements set forth
herein, Columbialum agrees to issue each of the Shareholders who agree,
severally and jointly, to exchange the number of authorized and newly issued
shares of Columbialum Stock determined as provided in Section 1.2 below for each
share of Integra Stock owned by them. In consideration for the shares of
Columbialum Stock to be exchanged, the Shareholders each shall deliver to
Columbialum stock certificates evidencing their ownership of Integra, together
with duly executed stock powers to effectuate the transfer.
1
1.2 Exchange Ratio.
(a) At Closing, Columbialum shall exchange 1,500 shares of
Columbialum Stock for each share of Integra Stock in
accordance with the distribution shown on the signature page
hereof and as full consideration for the Integra Stock.
(b) No fractional shares of Columbialum Stock will be issued to
any Shareholder. Accordingly, Shareholders who would otherwise
be entitled to receive fractional shares of Columbialum Stock
will, upon surrender of their certificate representing the
fractional shares of Integra Stock, receive a full share if
the fractional share exceeds fifty percent (50%) and if the
fractional share is less than fifty percent (50%) the
fractional share shall be canceled.
(c) An aggregate of 1,500,000 shares of Columbialum Stock shall be
exchanged by and issued to all of the Integra Shareholders.
ARTICLE 2
CLOSING
2. Closing.
The consummation of the exchange by the Shareholders (the Closing")
shall occur at the offices of INTEGRA STAFFING, INC., 701 West Fletcher Avenue,
Tampa, Florida 33612, on the 15th day of December 2001, or at such other place
and/or on such other time and date as the parties may agree upon (the "Closing
Date"). If the Closing fails to occur by December 15, 2001, or by such later
date to which the Closing may be extended as provided hereinabove, this
Agreement shall automatically terminate, all parties shall pay their own
expenses incurred in connection herewith, and no party hereto shall have any
further obligations hereunder; provided, however, that no such termination shall
constitute a waiver by any party or parties which is/are not in default of any
of its or their respective representations, warranties or covenants if any other
party or parties is in default of any of its or their respective
representations, warranties or covenants under this Agreement. At the Closing,
as conditions thereto:
2.1 Deliveries by Columbialum.
Columbialum shall deliver, or cause to be delivered to the
Shareholders:
(a) As soon after the Closing as is feasibly possible and no later
than three business days from the Closing, certificates for
the shares of Columbialum Stock being exchanged for their
respective accounts, in form and substance reasonably
satisfactory to the Shareholders and their counsel;
(b) The certificates, resolutions, opinions and resignations
specified in Article 6 below;
2
2.2 Shareholders' Deliveries.
The Shareholders shall deliver to Columbialum:
(a) A stock certificate or certificates evidencing the ownership
of each Shareholder, of all shares of Integra Stock currently
owned by them, respectively, duly endorsed for transfer to
Columbialum; and
(b) The certificates, resolutions and opinions specified in
Article 5 below.
(c) All of the books and records of Integra.
ARTICLE 3
REPRESENTATIONS OF ALL SHAREHOLDERS
All of the Shareholders hereby represent and warrant to Columbialum as
follows (it being acknowledged that Columbialum is entering into this Agreement
in material reliance upon each of the following representations and warranties,
and that the truth and accuracy of each, as evidenced by their signature set
forth on the signature page, constitutes a condition precedent to the
obligations of Columbialum hereunder):
3.1 Ownership of Stock. The Shareholders are the lawful owners of the
shares of Integra Stock to be transferred to Columbialum free and clear of all
preemptive or similar rights, liens, encumbrances, restrictions and claims of
every kind, except those listed on Schedule 3.1 hereto and the delivery to
Columbialum of the Integra Stock pursuant to the provisions of this Agreement
will transfer to Columbialum valid title thereto, free and clear of all liens,
encumbrances, restrictions and claims of every kind. All of the shares of
Integra Stock to be exchanged herein have been duly authorized and validly
issued and are fully paid and non-assessable.
3.2 Authority to Execute and Perform Agreement; No Breach. Each
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 Integra Stock and to perform fully their respective
obligations hereunder. This Agreement has been duly executed and delivered by
each Shareholder and, assuming due execution and delivery by, and enforceability
against Columbialum, constitutes the valid and binding obligation of each
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 the Shareholders
or in connection with the execution and delivery by the Shareholders of this
Agreement and consummation and performance by them of the transactions
contemplated hereby.
3
The execution, delivery and performance of this Agreement by each
Shareholder and the consummation of the transactions contemplated hereby in
accordance with the terms and conditions hereof by each Shareholder will not:
(a) violate, conflict with or result in the breach of any of the
terms of, or constitute (or with notice or lapse of time or
both would constitute) a default under, any contract, lease,
agreement or other instrument or obligation to which a
Shareholder is a party or by or to which any of the properties
and assets of any of the Shareholders may be bound or subject;
(b) violate any order, judgment, injunction, award or decree of
any court, arbitrator, governmental or regulatory body, by
which a Shareholder or the securities, assets, properties or
business of any of them is bound; or
(c) violate any statute, law or regulation.
3.3 Securities Matters.
(a) The Shareholders have been advised that the Columbialum 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 Columbialum Shares are being acquired solely for each
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 Shareholders
have no present plans to enter into any such contract,
undertaking, agreement or arrangement and each Shareholder
further understands that the Columbialum Shares, may only be
resold pursuant to a registration statement under the
Securities Act, or pursuant to some other available exemption;
(c) The Shareholders acknowledge, in connection with the exchange
of the Columbialum Shares, that no representation has been
made by representatives of Columbialum regarding its business,
assets or prospects other than that set forth herein and that
each is relying upon the information set forth in the filings
made by Columbialum 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.
(d) The Shareholders acknowledge that they are either an
"accredited investor" with the meaning of Regulation D under
the Securities Act or they have sufficient knowledge and
experience in financial matters to be capable of evaluating
the merits and risks of exchanging their Integra Shares for
Columbialum Shares and they are able to bear the economic risk
of the transactions contemplated hereby.
4
(e) The Shareholders agree that the certificate or certificates
representing the Columbialum 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 COLUMBIALUM's counsel
that registration is not required under said Act."
ARTICLE 4
REPRESENTATIONS OF PRINCIPAL SHAREHOLDERS
The Principal Shareholders (as indicated on the signature page hereof)
hereby represent and warrant to Columbialum as follows:
4.1 Existence and Good Standing. Integra is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida. Integra has the power to own or lease its properties and assets and to
carry on its business as now being conducted. Integra is duly qualified to do
business and is in good standing in the jurisdictions set forth on Schedule 4.1,
which are the only jurisdictions in which the character or location of the
properties owned or leased by Integra or the nature of the business conducted by
Integra makes such qualification necessary.
4.2 Capital Stock. Integra has an authorized capitalization consisting
of 1,000 shares of Common Stock, of which 1,000 shares are issued and
outstanding and no shares of Common Stock are held in Integra's treasury. All
such outstanding shares have been duly authorized and validly issued and are
fully paid and non-assessable. Except as set forth as Schedule 4.2 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 Integra, other than the exchange
of the Integra Shares as contemplated by this Agreement.
4.3 Financial Statements and No Material Changes. Annexed hereto as
Schedule 4.3 are the audited balance sheets of Integra; (the "Financial
Statements").
The Financial Statements were carefully prepared from the books and
records of Integra, and contain the footnotes which would be required in audited
financial statements, present fairly the financial position, assets and
liabilities of Integra and the results of its operations, for the respective
periods indicated and reflect all necessary accruals, all in conformity with
accounting principles generally accepted in the United States of America
("GAAP") applied on a consistent basis. The Financial Statements contain all
adjustments (consisting of only normal recurring accruals) required to be made
by GAAP, subject to normal year-end adjustments.
5
Since the date of the Financial Statements, 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 Integra, 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 Integra and to the best
knowledge, information and belief of Integra, no fact or condition exists or is
contemplated or threatened which might cause such a change in the future.
4.4 Books and Records. The minute books of Integra, all the contents of
which have been previously made available to Columbialum 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 Integra. Except as set forth on Schedule 4.4 attached
hereto, Integra 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 Integra.
4.5 Title to Properties; Encumbrances.
(a) Except as set forth on Schedule 4.5 attached hereto, Integra
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 Financial Statements, except as indicated in
the Schedules hereto; and (b) all of the properties and assets
purchased by Integra since the date of the 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 4.5 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 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 Integra 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 4.5 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 Integra reflected on the balance sheet
included in the Financial Statements or acquired since the
date of the Financial Statement include all rights, properties
and other assets necessary to permit Integra to conduct its
business in the same manner as its business has heretofore
6
been conducted. All such properties and assets owned or leased
by Integra are in satisfactory condition and repair, other
than ordinary wear and tear.
No structure or improvement on the real property leased by
Integra, 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.
4.6 Leases. Schedule 4.6 attached hereto, contains an accurate and
complete list and description of the terms of all leases to which either Integra
is a party (as lessee or lessor). Each lease set forth on Schedule 4.6 (or
required to be set forth on Schedule 4.6) 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 Integra 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 Integra, all of the covenants to be
performed by any other party under any such lease have been fully performed. The
property leased by Integra 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.
4.7 Material Contracts. Except as set forth on Schedule 4.7 attached
hereto, neither Integra nor its subsidiaries have, nor is bound by:
(a) any agreement, contract or commitment relating to the
employment of any person by Integra 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, other than those
recorded on Integra's books;
(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;
7
(f) any agreement, contract or commitment limiting the freedom of
Integra 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 $100,000 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 Integra or any subsidiary; or
(i) any agreement, contract or commitment not reflected in the
Financial Statements under which Integra is obligated to make
cash payments of, or deliver products or render services with
a value greater than $100,000 individually or $300,000 in the
aggregate, or receive cash payments of, or receive products or
services with a value greater than $100,000 individually or
$300,000 in the aggregate, and any other agreement, contract
or commitment which is material to the conduct of the business
of Integra.
Each contract or agreement set forth on Schedule 4.7 (or not required
to be set forth on Schedule 4.7) 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. Integra has violated any
of the terms or conditions of any contract or agreement set forth on Schedule
4.7 (or not required to be set forth on Schedule 4.7) in any material respect,
and, to the best knowledge, information and belief of Integra, all of the
covenants to be performed by any other party thereto have been fully performed.
Except as set forth on Schedule 4.7, 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.
4.8 Restrictive Documents. Other than as set forth on Schedule 4.8
attached hereto, neither Integra nor its Shareholders 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
Integra or any of its assets or property ("Integra's Property"), or which would
prevent consummation of the transactions contemplated by this Agreement,
compliance by the Shareholders with the terms, conditions and provisions hereof
or the continued operation of "Integra'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 Integra to conduct
business in any area.
4.9 Litigation. Except as set forth on Schedule 4.9 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 best knowledge,
8
information and belief of the Principal Shareholders any investigation by) any
governmental or other instrumentality or agency, pending, or, to the best
knowledge, information and belief of Integra or any subsidiary, threatened,
against or affecting Integra or any subsidiary, or any of their respective
properties or rights, or against the Principal Shareholders, or any officer,
director or employee of a Principal Shareholder other than such items which are
insignificant and immaterial and which do not adversely affect (i) the right or
ability of Integra's Business to carry on business as now conducted; (ii) the
condition, whether financial or otherwise, or properties of Integra; or (iii)
the consummation of the transactions contemplated hereby and the Shareholders do
not know of any valid basis for any such action, proceeding or investigation.
There are no outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental or regulatory body or arbitration tribunal by which
either the Principal Shareholders or Integra, or any officer, director or
employee of Integra, 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 Integra to carry
on its business as now conducted and as proposed to be conducted by Columbialum
after the consummation of the transactions contemplated by this Agreement; (ii)
the condition, whether financial or otherwise, or properties of Integra; or
(iii) the consummation of the transactions contemplated hereby.
4.10 Taxes. Except as set forth on Schedule 4.10, Integra 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, Integra. Such returns and reports
reflect accurately all liability for taxes of Integra for the periods covered
thereby. Except as set forth on Schedule 4.10, 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 due from, Integra and each of its subsidiaries,
have been fully paid and fully provided for in the books and financial
statements of Integra. No examination of any tax return of Integra is currently
in progress. There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any tax return of Integra. Schedule
4.10 attached hereto lists all tax sharing contracts, agreements or arrangements
to which Integra is a party and all such contracts, agreements and arrangements
have been terminated prior to the Closing Date with no liability or obligation
to Integra.
4.11 Liabilities. Except as set forth on Schedule 4.11, Integra has no
outstanding claims, liabilities or indebtedness, contingent or otherwise, which
are not properly reflected in the Financial Statements in a manner consistently
with past practice, other than liabilities incurred subsequent to the Financial
Statement date in the ordinary course of business not exceeding $100,000
individually or $300,000 in the aggregate; the reserves reflected in the
Financial Statements are adequate, appropriate and reasonable. Integra is not in
default in respect of the terms or conditions of any indebtedness.
4.12 Insurance. Set forth on Schedule 4.12, attached hereto, is a brief
description of insurance policies (specifying the insurer, the policy number or
coverage note number with respect to binders and the amount of any deductible,
describing the pending claims if such claims exceed the applicable policy
limits, setting forth the aggregate amount paid out by the insurer under each
policy from December 31, 2000, through the date hereof and the aggregate limit,
if any, of the insurer's liability thereunder) which Integra maintain with
9
respect to its business, properties or employees. Such policies are valid,
binding and enforceable in accordance with their terms and are in full force and
effect and are free from any right of termination on the part of the insurance
carriers. Such policies, with respect to their amounts and types of coverage,
are adequate to insure fully against risks to which Integra and their respective
property and assets are normally exposed in the operation of their businesses.
Integra is in default with respect to any material provision in any such policy
or binder and has not failed to give any notice or present any claim under any
such policy or binder in due and timely fashion, and Integra has not received
any notice of cancellation or non-renewal with respect to any such policy or
binder. Except for claims set forth on Schedule 4.12, there are no outstanding
unpaid claims under any such policy or binder which have gone unpaid for more
than 45 days or as to which the carrier has disclaimed liability.
4.13 Intellectual Properties. The operation of the business of Integra
requires no rights under Intellectual Property (as hereinafter defined) other
than rights under Intellectual Property listed on Schedule 4.13 attached hereto,
and rights granted to Integra pursuant to agreements listed on Schedule 4.13.
Within the three year period immediately prior to the date of this Agreement,
neither the business of Integra made use of Intellectual Property rights other
than rights under Intellectual Property listed on Schedule 4.13 and rights
granted to Integra pursuant to agreements listed on Schedule 4.13. Except as
otherwise set forth on Schedule 4.13, Integra owns all right, title and interest
in the Intellectual Property listed on Schedule 4.13 including, without
limitation, exclusive rights to use and license the same. Each item of
Intellectual Property listed on Schedule 4.13 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 4.13, no claim adverse
to the interests of Integra in the Intellectual Property or agreements listed on
Schedule 4.13 has been made in litigation. To the best knowledge, information
and belief of the Principal Shareholders, no such claim has been threatened or
asserted, no basis exists for any such claim, and no Person has infringed or
otherwise violated the rights of Integra in any of the Intellectual Property or
agreements listed on Schedule 4.13. Except as set forth on Schedule 4.13, no
litigation is pending wherein Integra is accused of infringing or otherwise
violating the Intellectual Property right of another, or of breaching a contract
conveying rights under Intellectual Property. To the best knowledge, information
and belief of the Principal Shareholders, no such claim has been asserted or
threatened against Integra, nor are there any facts that would give rise to such
a claim. For purposes of this Section 4.13, "Intellectual Property" means
domestic and foreign patents, patent applications, registered and unregistered
trademarks and service marks, trade names, registered and unregistered
copyrights, computer programs, data bases, trade secrets and proprietary
information. The Principal Shareholders will transfer any Intellectual Property
owned by it and used in Integra' business to Columbialum.
4.14 Compliance with Laws. Neither Integra, nor to the knowledge of
Integra, the Principal Shareholders, any officer, director or employee of
Integra is in violation of any applicable order, judgment, injunction, award or
decree, related to, arising out of or affecting the business or operations of
Integra or their respective properties or assets. Neither the Principal
Shareholders, Integra, nor to the knowledge of Integra, any officer, director or
employee of either Integra 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
10
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) Integra's Business or Property; (ii) the business proposed
to be conducted by Columbialum 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 Integra'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 Principal Shareholders or Integra,
threatened, to revoke or limit any Permit, which revocation or limitation could
have an adverse effect on Integra's Business or Property or the business to be
conducted by Columbialum after the consummation of the transactions contemplated
by this Agreement. Schedule 4.14 contains a list of all Permits. Except as set
forth on Schedule 4.14, 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.
4.15 Employment Relations.
(a) Integra 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 Integra 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 Integra
nor has one existed during the last two years;
(d) no representation question exists respecting the employees of
Integra;
(e) no grievance which might have an adverse effect upon Integra
or the conduct of Integra's Business exists, no arbitration
proceeding arising out of or under any collective bargaining
agreement is pending and no claim therefore has been asserted;
(f) Integra is a party to, nor does there otherwise exist, any
union, collective bargaining agreement or similar agreement
with respect to the employees of Integra and no collective
bargaining agreement or similar agreement is currently being
negotiated by Integra; and
(g) Neither Integra has experienced any labor difficulty during
the last two years. There has not been, and to the best
knowledge, information and belief of the Principal
Shareholders there will not be, any adverse change in
relations with employees of Integra as a result of any
announcement of the transactions contemplated by this
Agreement.
11
4.16 Employee Benefit Plans.
(a) Schedule 4.16 contains a complete list, as of November 23,
2001, of all employees, including their names, birth dates,
job titles, base salaries and dates of hire. Schedule 4.16
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 Integra 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 Integra is a member (an "ERISA
Affiliate"), or to which Integra or any ERISA Affiliate
contributes or is required to contribute or contributed or was
required to contribute at any time. Schedule 4.16 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 Integra or any ERISA affiliate or to which Integra
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 4.16 are collectively
referred to herein as the "Plans." Neither Integra 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, Columbialum has 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 4.16, the administration of
all Plans has been consistent with, and in compliance in all
material respects with, applicable requirements of the Code
12
and ERISA, including, without limitation, compliance on a
timely basis with all requirements for reporting, disclosure
and requirements for the continuation of group health
insurance. Neither Integra, 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 Integra or any ERISA Affiliate under each Plan
have been performed, and Integra is not in violation of the
terms of any Plan, nor does Integra or the Shareholders 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 any of Integra's 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 Integra or any
ERISA Affiliate to which Integra 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 Integra or any ERISA affiliate, or to which Integra 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 Integra nor any ERISA Affiliate maintains any Plans
that are subject to the requirements of Section 412 of the
Code.
4.17 Environmental Laws and Regulations.
(a) Integra has not generated, transported or disposed of any
hazardous material (defined below) during the past three
years.
(b) Integra has no Hazardous Materials at any site or facility
owned or operated presently or at any previous time by
Integra.
13
Integra is 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. Integra has not 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 Integra or the Principal Shareholders reasonably
expects could form the basis for the assertion of any Environmental Claim (as
defined below) against Integra 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 Integra or the Principal Shareholders believes might have an adverse
effect on the business, results of operations, financial condition or prospects
of Integra taken as a whole.
For purposes of this Section 4.17, 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 Integra.
4.18 Interests in Clients, Suppliers, Etc. At closing and in accordance
with the respective employment agreements, except as set forth on Schedule 4.18
attached hereto, as of the date of closing no officer or director of Integra,
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 Integra. 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 4.18.
4.19 Powers of Attorney and Compensation of Employees. Set forth on
Schedule 4.19 attached hereto is an accurate and complete list showing (a) the
names of all persons, if any, holding powers of attorney from Integra and a
summary statement of the terms thereof; and (b) the names and current salaries,
including bonus and fringe benefits (other than those described on Schedule 4.16
hereto) of all officers and of all persons whose compensation from Integra or
any of its subsidiaries for the calendar year to date ended on the Financial
Statement date exceeded an annualized rate of $100,000, together with a
statement of the full amount paid or payable to each such person for services
rendered during such fiscal year.
14
4.20 No Changes Since Financial Statement Date. Since the Financial
Statement date, of October 18, 2001, for the years ended December 31, 2000 and
1999, Integra has not:
(a) incurred any liability or obligation of any nature (whether
accrued, absolute, contingent or otherwise), except
liabilities and obligations in the ordinary course of business
and consistent with past practice, resulting in an increase
for the liabilities shown on the Financial Statement of more
than $200,000 in the aggregate;
(b) permitted any of its assets to be subjected to any mortgage,
pledge, lien, security interest, encumbrance, restriction or
charge of any kind (other than Permitted Liens);
(c) sold, transferred or otherwise disposed of any assets except
inventory sold in the ordinary course of business and
consistent with past practice;
(d) made any single capital expenditure or commitment therefore,
in excess of $200,000 or made aggregate capital expenditures
and commitments therefore in excess of $500,000;
(e) except as set forth on Schedule 4.20(e), declared or paid any
dividend or made any distribution on any shares of its capital
stock, or redeemed, purchased or otherwise acquired any shares
of its capital stock or any option, warrant or other right to
purchase or acquire any such shares;
(f) except as set forth on Schedule 4.20(f), made any bonus or
profit sharing distribution or payment of any kind;
(g) increased its indebtedness for borrowed money, or made any
loan to any Person;
(h) written off as uncollectible any notes or accounts receivable,
except immaterial write-downs or write-offs in the ordinary
course of business and consistent with past practice which do
not exceed $250,000 in the aggregate charged to applicable
reserves, and none of which individually or in the aggregate
is material to Integra;
(i) granted any increase in the rate of wages, salaries, bonuses
or other remuneration or benefits of any executive employee or
other employees or consultants, and no such increase is
customary on a periodic basis or required by agreement or
understanding except as set forth on Schedules 4.16 and 4.20;
(j) canceled or waived any claims or rights of substantial value;
(k) made any change in any method of accounting or auditing
practice;
(l) otherwise conducted its business or entered into any
transaction, except in the usual and ordinary manner and in
the ordinary course of business and consistent with past
practices;
15
(m) paid, discharged or satisfied any claims, liabilities or
obligations (absolute, accrued, contingent or otherwise) other
than the payment, discharge or satisfaction in the ordinary
course of business and consistent with past practice of
liabilities and obligations reflected and reserved against in
Integra's Financial Statements or incurred in the ordinary
course of business and consistent with past practice since the
Financial Statement date;
(n) paid, loaned or advanced any amount to, or sold, transferred
or leased any properties or assets (real, personal or mixed,
tangible or intangible to, or entered into any agreement or
arrangement of any kind with, any of its officers, directors
or shareholders or any affiliate or associate of its officers,
directors or shareholders, except compensation to officers at
rates not exceeding the rate of compensation in effect as of
the Financial Statement date;
(o) suffered any material adverse changes in its working capital,
financial condition, assets, liabilities (absolute, accrued,
contingent or otherwise), reserves, business operations or
prospects; or
(p) agreed, whether or not in writing, to do any of the foregoing.
4.21 Certain Business Practices. No officer, director, shareholder,
employee, agent or other representative of Integra, or any person acting on
behalf of Integra, has directly or indirectly, within the past two 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 Integra in connection with an actual or proposed
transaction.
4.22 Subsidiaries. Except as set forth on Schedule 4.22, Integra has no
subsidiaries or interest in any corporation, partnership, joint venture or other
entity.
4.23 Disclosure. To the best of Principal Shareholder's knowledge and
belief, neither this Agreement, nor the Financial Statements referred to in
Section 4.3 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 Principal Shareholders or
by or on behalf of any of Integra'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. There is no fact
known to the Principal Shareholders or Integra which could materially and
adversely affect the business, prospects or financial condition of Integra or
any of its subsidiaries or their respective properties or assets, which has not
been set forth in this Agreement, the Financial Statements referred to in
Section 4.3 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 Shareholder or by or on behalf of any of Integra's directors or officers in
connection with the transactions contemplated by this Agreement.
16
4.24 Broker's or Finder's Fees. Except for the persons/entities listed
on Schedule 4.24, no agent, broker, person or firm acting on behalf of the
Principal Shareholders or Integra 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.
4.25 Copies of Documents. The Principal Shareholders have caused to be
made available for inspection and copying by Columbialum and its advisers, true,
complete and correct copies of all documents referred to in this Article 4 or in
any Schedule attached hereto.
ARTICLE 5
REPRESENTATIONS OF COLUMBIALUM
Columbialum represents, warrants and agrees as follows:
5.1 Organization and Corporate Power. Columbialum is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, 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
Columbialum. Columbialum has all requisite corporate power and authority to
conduct its business as now being conducted and to own and lease the properties,
which it now owns and leases. Columbialum Articles of Incorporation as amended
to date, certified by the Secretary of State for the State of Nevada, and the
Bylaws of Columbialum as amended to date, certified by the President and the
Secretary of Columbialum, 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.
5.2 Authorization. Columbialum 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
exchange the Columbialum Shares with 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
Columbialum, which authorizations remain in full force and effect, have been
duly executed and delivered by Columbialum, and no other corporate proceedings
on the part of Columbialum 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 Columbialum and
is enforceable with respect to Columbialum in accordance with its terms, except
as enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
priority or other laws or 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 Columbialum of any of the transactions 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
17
Columbialum is a party or by which Columbialum or any of its assets or
properties may be bound, or (ii) violate any judgment, order, injunction,
decree, statute, rule or properties of Columbialum. No authorization, consent or
approval of any public body of authority or any third party is necessary for the
consummation by Columbialum of the transactions contemplated by this Agreement.
5.3 Capitalization. The authorized capital stock of Columbialum
consists of 20,000,000 shares of Common Stock, $.001 par value and 2,000,000
shares of Preferred Stock, $.001 par value. As of the date of Closing, there
will be 2,500,000 shares of Columbialum's Common Stock issued and outstanding.
No shares of Preferred Stock are now or will, at the time of closing be issued
and outstanding. As of the date of Closing, the Board of Directors and a
majority of shareholders of Columbialum will have duly authorized an amendment
of Columbialum Articles of Incorporation to change the name of the company,
change the par value of Columbialum's common and preferred stock, and to approve
an equity incentive plan. Said amendment to the Articles of Incorporation will
be duly and properly filed as soon after Closing as is feasibly possible. All of
the outstanding shares of Columbialum's Common Stock have been, and all of
Columbialum's Common Stock to be issued and sold to each Shareholder pursuant to
this Agreement, when issued and delivered as provided herein will be duly
authorized, validly issued, fully paid and non-assessable and free of preemptive
or similar rights. Except as set forth on Schedule 5.3 there are no options,
warrants, rights, agreements or commitments of any character obligating
Columbialum contingently or otherwise to issue any shares or to register any
shares of its capital stock under any applicable federal or state securities
laws.
5.4 Financial Statements.
(a) To management's knowledge and belief, Columbialum financial
statements contained in its Form 10-KSB filing for the fiscal
year ended December 31, 2000, its Form 10-QSB filings for the
quarter period ended September 30, 2001, (collectively
"Columbialum Financial Statements") are complete in material
respects and have been prepared in accordance with accounting
principles generally accepted in the United States of America
applied on a consistent basis throughout the periods
indicated. To management's knowledge and belief, Columbialum's
Financial Statements accurately set out and describe the
financial condition and operating results of Columbialum as of
the dates, and for the periods indicated therein, subject to
normal year-end audit adjustments. Except as set forth in
Columbialum's Financial Statements and to management's
knowledge and belief, Columbialum has no liabilities,
contingent or otherwise, other than (i) liabilities incurred
in the ordinary course of business subsequent to September 30,
2001 and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required
under accounting principles generally accepted in the United
States of America to be reflected in Columbialum's Financial
Statements. Columbialum maintains and will continue to
maintain a standard system of accounting established and
administered in accordance with accounting principles
generally accepted in the United States of America.
18
(b) To management's knowledge and belief, except as set forth in
Schedule 5.4, since September 30, 2001 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 Columbialum 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 (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
Columbialum and to the best knowledge, information and belief
of Columbialum, no fact or condition exists or is contemplated
or threatened which might cause such a change in the future.
5.5 Subsidiaries. Columbialum 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.
5.6. Absence of Undisclosed Liabilities. To management's knowledge and
belief, except as and to the extent reflected or reserved against in the most
recent balance sheet included in the Columbialum's Financial Statements,
Columbialum 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 Columbialum. Except as disclosed on
Schedule 5.6 hereto, there are no material changes in the business of
Columbialum. At Closing, Columbialum shall have no assets and no liabilities.
5.7 No Pending Material Litigation or Proceedings. There are no
actions, suits or proceedings pending or, to the best of Columbialum's
knowledge, threatened against or affecting Columbialum (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
Columbialum in connection with the business, operations or affairs of
Columbialum, which might result in any adverse change in the business,
properties or assets, or in the condition (financial or otherwise) of
Columbialum, or which might prevent the sale of the transactions contemplated by
this Agreement. Columbialum is not subject to any voluntary or involuntary
proceeding under the United States Bankruptcy Code and has not made an
assignment for the benefit of creditors.
5.8 Disclosure. Neither this Agreement, nor any certificate, exhibit,
or other written document or statement, furnished to the Shareholders by
Columbialum 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.
5.9 Tax Returns and Payments. All tax returns and reports, including,
without limitation, all foreign returns and reports, of Columbialum required by
law to be filed have been duly filed, and all taxes, assessments, fees and other
governmental charges heretofore levied upon any properties, assets, income or
19
franchises of Columbialum which are due and payable have been paid, except as
otherwise reflected in the Financial Statements. No extension of time for the
assessment of deficiencies in any federal or state tax has been requested of or
granted by Columbialum.
5.10 Compliance with Law and Government Regulations. To management's
knowledge and belief, Columbialum 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 Columbialum is subject. Without limiting the generality of
the foregoing, Columbialum 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 1934 Act and Form SR reports under Rule 463 of
the 1933 Act. Each of such reports was complete, did not contain any material
misstatement of or omit to state any material fact.
5.11 Books and Records. The minute books of Columbialum, all the
contents of which have been previously made available to Integra and their
representatives, to management's knowledge and belief, 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 Columbialum.
Columbialum 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 Columbialum.
5.12 Material Contracts. Except as set forth on Schedule 5.12 attached
hereto, Columbialum has or is bound by:
(a) any agreement, contract or commitment relating to the
employment of any person by Columbialum 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);
20
(e) any management service, consulting or any other similar type
contract;
(f) any agreement, contract or commitment limiting the freedom of
Columbialum 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 $100,000 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 Columbialum; or
(i) any agreement, contract or commitment not reflected in the
Financial Statement under which Columbialum is obligated to
make cash payments of, or deliver products or render services
with a value greater than $100,000 individually or $300,000 in
the aggregate, or receive cash payments of, or receive
products or services with a value greater than $100,000
individually or $300,000 in the aggregate, and any other
agreement, contract or commitment which is material to the
conduct of the business of Columbialum.
Each contract or agreement set forth on Schedule 5.12 (or not required
to be set forth on Schedule 5.12) 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. To management's knowledge
and belief, Columbialum has not violated any of the terms or conditions of any
contract or agreement set forth on Schedule 5.12 (or not required to be set
forth on Schedule 5.12) in any material respect, and, to the knowledge and
belief of Columbialum, all of the covenants to be performed by any other party
thereto have been fully performed. Except as set forth on Schedule 5.12, 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.
5.13 Taxes. To management's knowledge and belief, except as set forth
on Schedule 5.13, Columbialum 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, Columbialum. Such returns and reports reflect accurately all liability for
taxes of Columbialum for the periods covered thereby. Except as set forth on
Schedule 5.13, 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 due from,
Columbialum have been fully paid and fully provided for in the books and
financial statements of Columbialum. No examination of any tax return of
Columbialum is currently in progress. There are no outstanding agreements or
waivers extending the statutory period of limitation applicable to any tax
return of Columbialum. Schedule 5.13 attached hereto lists all tax sharing
contracts, agreements or arrangements to which Columbialum is a party and all
21
such contracts, agreements and arrangements have been terminated prior to the
Closing Date with no liability or obligation to Columbialum.
5.14 Liabilities. According management's knowledge and belief,
Columbialum has no outstanding claims, liabilities or indebtedness, contingent
or otherwise, which are not properly reflected in the Financial Statements in a
manner consistently with past practice, other than liabilities incurred
subsequent to the Financial Statement date in the ordinary course of business
not exceeding $100,000 individually or $300,000 in the aggregate; the reserves
reflected in the Financial Statements are adequate, appropriate and reasonable.
Columbialum is not in default in respect of the terms or conditions of any
indebtedness.
5.15 Compliance with Laws. Columbialum is not, nor to the knowledge of
Columbialum, any officer, director or employee of Columbialum, in violation of
any applicable order, judgment, injunction, award or decree, related to, arising
out of or affecting the business or operations of Columbialum or its properties
or assets. Columbialum is not, nor to the knowledge of Columbialum, any officer,
director or employee of Columbialum, 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) Columbialum's Business or Property; (ii) the
business proposed to be conducted by Integra 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 Columbialum'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 Columbialum,
threatened, to revoke or limit any Permit, which revocation or limitation could
have an adverse effect on Columbialum's Business or Property or the business to
be conducted by Columbialum after the consummation of the transactions
contemplated by this Agreement. Schedule 5.15 contains a list of all Permits.
Except as set forth on Schedule 5.15, 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.
5.16 Employment Relations. Columbialum 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.
5.17 Employee Benefit Plans. Columbialum 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"), and no
employee pension benefit plan, as defined in Section 3(2) of ERISA (an "Employee
Pension Plan").
5.18 Broker's or Finder's Fees. No agent, broker, person or firm acting
on behalf of Columbialum is, or will be, entitled to any commission or broker's
22
or finder's fees from Integra 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.
ARTICLE 6
CONDITIONS TO COLUMBIALUM'S OBLIGATIONS
The exchange of the Integra Shares by Columbialum on the Closing Date
is conditioned upon satisfaction, on or prior to such date, of the following
conditions:
6.1 Opinion of Integra's Counsel. Integra shall have furnished
Columbialum with a favorable opinion, dated the Closing Date, of Integra's
counsel, in form and substance satisfactory to Columbialum and their counsel, to
the effect set forth in Exhibit 1 attached hereto.
6.2 Good Standing and Other Certificates. Integra shall have delivered
to Columbialum:
(a) copies of certificates of incorporation, 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 Integra and each of its subsidiaries are in
good standing or subsisting in such jurisdiction and listing
all charter documents including all amendments thereto, on
file;
(c) a copy of the Bylaws each of Integra and each of its
subsidiaries, certified by the respective Secretary of each
entity as being true and correct and in effect on the Closing
Date.
(d) a resolution of Integra's Board of Directors certified by
their respective Secretary approving the transactions
contemplated hereby and authorizing the President and
Secretary of each entity to execute this Agreement and all
documents necessary to consummate the sale of the Shares.
6.3 Officer Certificate. Integra shall deliver a certificate of its
President, as set forth in Exhibit 2, stating the following:
(a) Certain Agreements. Except as listed on Schedule 4.7 hereto
there are no management or consulting agreements with any
third parties to provide these services to Integra or any of
its subsidiaries.
(b) 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
23
otherwise, the results of operations, or prospects of Integra
or any of its subsidiaries, 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.
(c) Truth of Representations and Warranties. The representations
and warranties of Integra 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.
(d) Performance of Agreements. All of the agreements of each of
Integra or any of its subsidiaries to be performed on or
before the Closing Date pursuant to the terms hereof shall
have been duly performed.
(e) 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.
6.4 Chief Financial Officer's Letter. Columbialum shall have received a
letter, dated the Closing Date, from Integra's Chief Financial Officer, in form
and substance satisfactory to them, to the effect set forth in Exhibit 3
attached hereto.
6.5 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.
6.6 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 Columbialum and their counsel,
and Columbialum 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.
6.7 Audited Financial Statements. The completion and delivery of
Integra's financial statements together with an unqualified auditors report
(except as to going concern).
6.8 Closing. The transactions contemplated by this Agreement shall have
been consummated by December 15, 2001.
24
ARTICLE 7
CONDITIONS TO THE OBLIGATIONS OF
THE SHAREHOLDERS AND INTEGRA
The obligations of the Shareholders and Integra on the Closing Date are
conditioned upon satisfaction, on or prior to such date, of the following
conditions:
7.1 Opinion of Columbialum's Counsel. Columbialum shall have furnished
the Shareholders and Integra with an opinion, dated the Closing Date, as to the
effect set forth in Exhibit 4 attached hereto.
7.2 Good Standing Certificates. Columbialum shall have delivered to the
Shareholders:
(a) copies of the Articles of Incorporation of Columbialum,
including all amendments thereto, certified by the Secretary
of State of the State of Nevada; and
(b) certificates from the Secretary of State of the State of
Nevada to the effect that Columbialum is in good standing in
such State and listing all charter documents, including all
amendments thereto, of Columbialum on file.
7.3 Truth of Representations and Warranties. The representations and
warranties of Columbialum 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
Columbialum shall have delivered to Integra a certificate, dated the Closing
Date, to such effect.
7.4 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.
7.5 Performance of Agreements. All of the agreements of Columbialum to
be performed on or before the Closing Date pursuant to the terms hereof shall
have been duly performed, and Columbialum shall have delivered to Integra a
certificate, dated the Closing Date, to such effect.
7.6 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 Integra and its
counsel, and Integra 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.
7.12 Closing. The transactions contemplated by this Agreement shall
have been consummated by December 15, 2001.
25
ARTICLE 8
SURVIVAL OF REPRESENTATIONS; INDEMNITY; SET-OFF
8.1 Survival of Covenants and Agreements. The respective
representations, warranties, covenants and agreements of the Shareholders,
Integra and Columbialum 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 one year 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.
8.2 Indemnification.
(a) Integra agrees to indemnify and hold Columbialum 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 $100,000 in the
aggregate, as a result of or arising out of the breach of any
representation or warranty made by the Shareholders and/or
Integra or the failure of any representation or warranty made
by Shareholders and/or Integra in this Agreement or in any
Schedule attached hereto or any document or agreement
delivered hereunder to be true and correct in all respects as
of the date of this Agreement and as of the Closing Date or
the non-performance by The Shareholders and/or Integra 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 Columbialum or
Integra.
(b) Columbialum's right to indemnification as provided in this
Section 8.2 shall not be eliminated, reduced or modified in
any way as a result of the fact that (i) Columbialum has
notice of a breach or inaccuracy of any representation,
warranty or covenant contained herein; (ii) Columbialum has
been provided with access, as requested by Columbialum, to
officers and employees of Integra or any of its subsidiaries
and such of Integra's books, documents, contracts and records
as has been provided to Columbialum in response to
Columbialum's requests.
8.3 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
26
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 8 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 8.3(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
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.
27
ARTICLE 9
MISCELLANEOUS
9.1 Knowledge of the Shareholders, Integra or Columbialum. Where any
representation or warranty contained in this Agreement is expressly qualified by
reference to the knowledge, information and belief of the Shareholders, Integra
or Columbialum and the Shareholders and Columbialum, as the case may be, confirm
that they have made reasonable due and diligent inquiry as to the matters that
are the subject of such representations and warranties.
9.2 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.
9.3 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of Nevada applicable to agreements executed and to be performed solely
within such State without regard to conflicts of laws.
9.4 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 Nevada, or in
the United States District Court for the Tampa, Florida area, 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.
9.5 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.
9.6 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 Columbialum and
Integra 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
Integra and Columbialum and to file a Form 8-K report with the Securities and
Exchange Commission containing this agreement and all exhibits and schedules
hereto.
9.7 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:
28
If to Columbialum:
Columbialum, Ltd.
310 East Harrison
Tampa, Florida 33602
Telephone No.: (813) 968-9444
Facsimile No.: (775) 201-3906
with a required copy to:
Sommer & Schneider LLP
595 Stewart Avenue, Suite 710
Garden City, NY 11530
Telephone No.: (516) 228-8181
Facsimile No.: (516) 228-8211
If to Integra:
Integra Staffing, Inc.
701 West Fletcher Avenue, Suite B
Tampa, FL 33612
Telephone No.: (813) 964-1118
Facsimile No.: (813) 964-0405
9.8 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.
9.9 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
9.10 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.
9.11 Amendments. This Agreement may not be changed orally, but only by
an agreement in writing signed by Columbialum, the Shareholders and Integra.
9.12 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.
29
9.13 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.
9.14 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.
ARTICLE 10
COVENANTS
10.1 Access to Information. Each of Integra and Columbialum agrees
that, prior to the Closing Date, the other party hereto shall be entitled,
through its officers, employees and representatives (including, without
limitation, its legal and financial advisors and accountants), to make such
investigation of the properties, businesses and operations of Integra or
Columbialum and their respective subsidiaries, as applicable, and such
examination of the books, records and financial condition of Integra or
Columbialum (and their respective subsidiaries), as applicable, as such other
party reasonably requests and to make copies of such books and records. Any such
investigation and examination shall be conducted during regular business hours
and under reasonable circumstances, and each of Integra and Columbialum shall
cooperate, and shall cause their respective subsidiaries to cooperate, fully
therein. No investigation by Integra or Columbialum prior to or after the date
of this Agreement shall diminish or obviate any of the representations,
warranties, covenants or agreements of the other party thereto contained in this
Agreement or any other agreements or certificates in connection with the
transactions contemplated by this Agreement. In order that each of Columbialum
and Integra may have full opportunity to make such physical, business,
accounting and legal review, examination or investigation as it may reasonably
request of the affairs of Integra or Columbialum (and their respective
subsidiaries), as applicable, Integra and Columbialum shall cause the officers,
employees, consultants, agents, accountants, attorneys and other representatives
of Integra or Columbialum, as applicable, to cooperate fully with such
representatives in connection with such review and examination.
10.2 Conduct of Columbialum's and Integra's Respective Businesses
Pending the Closing.
(a) Prior to the Closing Date, except as otherwise expressly
contemplated by this Agreement, Integra shall and Columbialum
shall:
(i) conduct its business only in the ordinary course
consistent with past practice;
(ii) use its best efforts to (A) preserve its present
business operations, organization (including, without
limitation, management and the sales force) and
30
goodwill, (B) preserve its present relationship with
Persons having business dealings with it;
(iii) maintain (A) all its assets and properties in their
current condition, ordinary wear and tear excepted,
and (B) insurance upon all of its properties and
assets in such amounts and of such kinds comparable
to that in effect on the date of this Agreement;
(iv) (A) maintain its books, accounts and records in the
ordinary course of business consistent with past
practices, (B) continue to collect accounts
receivable and pay accounts payable utilizing normal
procedures and without discounting or accelerating
payment of such accounts (other than in the ordinary
course of business), and (C) comply with all
contractual and other obligations applicable to its
operations; and
(v) comply in all material respects with applicable Laws.
(b) Prior to the Closing Date, except as otherwise expressly
contemplated by this Agreement, Integra shall not and
Columbialum shall not:
(i) declare, set aside, make or pay any dividend or other
distribution in respect of its capital stock;
(ii) (a) in the case of Columbialum, transfer, issue
(except issuances of shares upon the exercise of
outstanding warrants, options and convertible
debentures), sell or dispose of any shares of its
capital stock or other securities or grant options,
warrants, calls or other rights to purchase or
otherwise acquire shares of the capital stock or
other securities;
(b) in the case of Integra, issue, sell or
dispose of any shares of its capital stock
or other securities, or grant options,
warrants, calls or other rights to purchase
any capital stock.
(iii) effect any recapitalization, reclassification, stock
split or like change in its capitalization except, in
the case of Columbialum, as is required pursuant to
this Agreement or authorize the issuance of the
Shares (including securities convertible into shares
of Columbialum Stock);
(iv) amend its certificate of incorporation, by-laws,
memorandum or articles of association or similar
organizational documents, except that Columbialum may
amend its certificate of incorporation solely for the
purposes of increasing its common and preferred
capital stock, and authorizing the Shares as
contemplated by this Agreement, or changing the name
of Columbialum as determined by the Board of
Directors and Columbialum;
31
(v) (A) materially increase the annual level of
compensation of any employee, (B) increase the annual
level of compensation payable or to become payable by
it or any of its subsidiaries to any of their
respective executive officers, (C) grant any bonus,
benefit or other direct or indirect compensation to
any employee, director or consultant, other than in
the ordinary course consistent with past practice,
(D) increase the coverage or benefits available under
any (or create any new) severance pay, termination
pay, vacation pay, company awards, salary
continuation for disability, sick leave, deferred
compensation, bonus or other incentive compensation,
insurance, pension or other employee benefit plan or
arrangement made to, for, or with any of its or its
subsidiaries' directors, officers, employees, agents
or representatives or otherwise modify or amend or
terminate any such plan or arrangement;
(vi) except (A) for trade payables and (B) for pledges of
assets and indebtedness for borrowed money which do
not exceed, individually or in the aggregate,
$1,000,000 (it being understood that(1) such amount
shall not include indebtedness existing or assets
pledged prior to the date of this Agreement and (2)
the transaction value of any asset pledges shall be
deemed to be equal to the fair market value of the
assets pledged in such transaction), borrow monies of
any reason or draw down on any line of credit or debt
obligation, or become the guarantor, surety, endorser
or otherwise liable for any debt, obligation or
liability (contingent or otherwise) of any other
Person;
(vii) except as may be permitted pursuant to clause (vi)
above, subject to any lien (except for leases that do
not materially impair the use of the property subject
thereto in their respective businesses as presently
conducted and in the ordinary course of business),
any of its properties or assets (whether tangible or
intangible);
(viii) acquire any material properties or assets or sell,
assign, transfer, convey, lease or otherwise dispose
of any material properties or assets, or its rights
to any of the foregoing (except for fair
consideration in the ordinary course of business
consistent with past practice);
(ix) cancel or compromise any debt or claim or waive or
release any material right except in the ordinary
course of business consistent with past practice;
(x) enter into any commitment for capital expenditures in
excess of $250,000 for any individual commitment and
$1,000,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or
collective bargaining agreement or, through
negotiation or otherwise, make any commitment or
incur any liability to any labor organization;
32
(xii) enter into any transaction or make or enter into any
Contract which by reason of its size or otherwise is
not in the ordinary course of business consistent
with past practice.
(xiii) transfer any funds or assets to any of its officers
and directors, which funds and assets are, in the
aggregate, worth in excess of $25,000, except for the
purchase of goods and services from any such officer
or director in the ordinary course of business at the
fair market value for such goods and services;
(xiv) agree to do anything prohibited by this Section 10.2
or anything which would make any of the
representations and warranties of Columbialum or the
Integra in this Agreement or Columbialum Documents or
Integra Documents untrue or incorrect in any material
respect as of any time through and including the
Closing Date.
10.3 Consents and Approvals.
(a) Integra and Columbialum shall use their respective best
efforts, and shall cooperate with each other, to obtain at the
earliest practicable date all consents and approvals required
to consummate the transactions contemplated by this Agreement;
provided, however, that neither Integra nor Columbialum shall
be obligated to pay any consideration (except for filing fees)
thereon to any third party from whom consent or approval is
requested.
(b) Promptly following the date of this Agreement, Columbialum
shall prepare and file with the Securities and Exchange
Commission an information statement and related solicitation
materials relating to taking corporate actions without the
benefit of a meeting to approve the issuance of Columbialum's
Shares pursuant hereto (such information statement, as amended
or supplemented from time to time, being hereinafter referred
to as the "Information Statement"), and shall use its best
efforts to cause the Information Statement to be mailed to its
stockholders at such time and in such manner as permits the
notification to be sent as promptly as practicable. Integra
shall furnish all information as may be reasonably requested
by Columbialum and, in any case, as required with respect to
Columbialum by Regulation 14A under the Securities Exchange
Act of 1934, as amended, for inclusion in the Information
Statement.
The information provided by Columbialum and Integra,
respectively, for use in the Information Statement shall, on
the date when the Information Statement is first mailed to
Columbialum's stockholders, be true and correct in all
material respects and shall not omit to state any material
fact required to be stated therein or necessary in order to
make the statements contained therein not misleading, and
Columbialum and Integra each agree to promptly correct any
information provided by it for use in the Information
Statement which shall have become false or misleading.
33
(c) Columbialum shall notify its shareholders that the Board of
Directors has approved, among other matters, the issuance of
the Columbialum's Shares pursuant hereto. The Information
Statement shall comply as to form in all material respects
with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and no amendment or supplement to the
Information Statement shall be made by Columbialum without the
prior written approval of Integra unless Columbialum
determines law requires such amendment or supplement.
10.4 Other Actions. Each of Integra and Columbialum shall use its best
efforts to (i) take all actions necessary or appropriate to consummate the
transactions contemplated by this Agreement and (ii) cause the fulfillment at
the earliest practicable date of all of the conditions to their respective
obligations to consummate the transactions contemplated by this Agreement.
10.5 Publicity. Neither Integra nor Columbialum shall issue any press
release or public announcement concerning this Agreement or the transactions
contemplated hereby without obtaining the prior written approval of the other
party hereto, which approval will not be unreasonably withheld or delayed,
unless, in the sole judgment of Columbialum or Integra, disclosure is otherwise
required by applicable Law or by the applicable rules of any stock exchange on
which Columbialum or Integra lists securities; provided that, to the extent
required by applicable Law, the party intending to make such release shall use
commercially reasonable efforts consistent with such applicable Law to consult
wit the other party with respect to the text thereof.
10.6 Tax and Accounting Matters. Within 60 days following the date
hereof, Integra will deliver to Columbialum (i) the Interim Statements, together
with an unqualified audit report thereon by Integra's independent public
accountants and (ii) an unaudited pro forma consolidated balance sheet of
Integra, after giving effect to the transactions contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
34
IN WITNESS WHEREOF, each of Columbialum and Integra Shareholders have
executed this Agreement, all as of the day and year first above written.
COLUMBIALUM, LTD.
By: /s/ Rene Morissette
----------------------------
Rene Morissette
President and Sole Director
INTEGRA STAFFING, INC.
By: /s/ R. Gale Porter
----------------------------
R. Gale Porter
President and Director
THE PRINCIPAL SHAREHOLDERS: No. of Shares of INTEGRA
-------------------------- ------------------------
/s/ Cristino L. Perez - Trustee 36.00
------------------------------------------------
Frank Hartman
/s/ Cristino L. Perez - Trustee 0.30
------------------------------------------------
Frank Hartman, as Custodian for Ginifer Hartman,
under the Florida Uniform Gifts to Minor
/s/ R. Gale Porter 350.00
------------------------------------------------
R. Gale Porter & Jerry G. Porter, Tenants by the
Entireties
/s/ William A. Brown - Trustee 253.70
------------------------------------------------
William A. Brown, Trustee for the
William A. Brown Family Trust
35
/s/ Cristino L. Perez 155.00
------------------------------------------------
Cristino L. Perez & Elona Perez, Joint Tenants
with Rights of Survivorship
/s/ Charles Lincoln 205.00
------------------------------------------------
Charles Lincoln and/or Lorraine Lincoln
36