SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 11, 1999
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THERMACELL TECHNOLOGIES, INC.
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(Exact name of registrant as specified in charter)
FLORIDA 0-21279 59-3223708
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1125 COMMERCE BLVD., SARASOTA, FLORIDA 34243
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(Address of principal executive offices) (Zip Code)
Registrant's telephone Number, including area code (941) 358-0306
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N/A
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(Former name or former address, if changed since last report)
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ITEM 2. Acquisition or Disposition of Assets
On December 21, 1998, ThermaCell Technologies, Inc. ("Company") acquired
substantially all of the assets and liabilities of T-Coast Pavers/Sealco
Systems, Inc., Stewart, Florida sealant service applicator enterprises. T-Coast
Pavers/Sealco Systems have a total of more than $2 million in revenues. Sealco
Systems provides outdoor sealing and weather-proofing services while T-Coast
Pavers manufacturers and installs brick-like pavers used in construction.
The total purchase price for T-Coast Pavers/Sealco Systems was 300,000
shares of ThermaCell common stock and a contingent payment of 300,000 shares
subject to certain performance requirements for one of its two former owners.
Reference is made to the form of a Stock Purchase Agreement attached as an
exhibit to this Form 8-K for additional details regarding the terms of this
acquisition.
ITEM 7. Financial Statements, Proforma Financial Information and Exhibits
(a) It is impractical to provide the required financial statements
at this time. These financial statements will be filed on a
supplemental basis.
(b) Stock Purchase Agreement for the sale of T-Coast Pavers/Sealco
Systems, Inc.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ThermaCell Technologies, Inc.
(Registrant)
By: /s/ John Pidorenko
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John Pidorenko
President and Chief Executive Officer
Date: January 11, 1999
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT MADE THIS 1st day of December, 1998, by and among
Maurice Malacarne ("Maurice Malacarne"), Judy Malacarne ("Judy Malacarne"),
T-Coast Pavers/Sealco Systems, Inc., a Florida corporation (the "Company",
together with Maurice Malacarne and Judy Malacarne sometimes referred to herein
as the "Seller") and ThermaCell Technologies, Inc., a Florida corporation
(hereinafter referred to as "Buyer").
WHEREAS, Maurice Malacarne and Judy Malacarne collectively own 100% of
the outstanding capital stock of the Company (the "Shares"); and
WHEREAS, the Seller desires to sell, transfer and deliver and the Buyer
desires to purchase and acquire all of the Seller's right, title and interest in
the Shares on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements contained herein be it agreed;
1. Purchase and Sale of the Shares.
(a) In General. Seller shall, subject to the terms and conditions hereof,
sell, transfer, convey, assign and deliver to Buyer, and Buyer shall
purchase, accept, and pay for, all right, title, and interest in and to
the Shares for a purchase price set forth below.
(b) Purchase Price. The Purchase Price payable by Buyer to Seller for the
Shares shall be 300,000 shares (the "Purchase Shares") of the Buyer's
common stock. The Buyer shall, at its sole cost and expense, register
the Purchase Shares and shall file a registration statement (the
"Registration Statement") with the Securities and Exchange Commission
("SEC") covering the Purchase Shares no later than April 15, 1999. The
Buyer will use its best efforts to cause the Registration Statement to
be declared effective at the earliest possible time and will maintain
the effectiveness of the Registration Statement until all of the
Purchase Shares are sold by the Seller.
(c) Assumed Value. The Purchase Shares referenced in subparagraph (b) above
shall have an assumed value (the "Assumed Value") of $300,000. If the aggregate
net proceeds received by the Seller from the sale(s) of the Purchase Shares are
less than the Assumed Value, then the Buyer shall pay the Seller an amount of
cash equal to the difference between the Assumed Value and the actual aggregate
net proceeds from the sale(s). The aforementioned equalization of value shall be
calculated upon Sellers' sale of all the Purchase Shares.
In the event the Seller does not receive at least the Assumed Value upon
sale of the Purchase Shares, then the Seller shall have the right to request the
Buyer to pay any deficiency in monies anticipated to be received with the
provision of thirty days notice by the Seller to the Buyer.
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If the Buyer fails to pay within the thirty day notice period then the Seller
shall have the right to terminate this Agreement and receive back all of the
Shares and assets of the Company as if the transaction reflected herein had not
occurred.
(d) Closing. The closing of the transaction provided for herein (the
"Closing") shall take place at the offices of the Buyers counsel on December 1,
1998, or at such other place and date as may be agreed upon by the Buyer and
Seller.
2. Representations and Warranties of the Seller. The Seller represents and
warrants to the Buyer as follows:
(a) The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Florida.
(b) The Company has no subsidiaries or other affiliated corporations.
(c) All of the issued and outstanding capital stock of the Company has
been validly issued and is fully paid and nonassessable; there are no
outstanding options, warrants, or rights to purchase any of its capital stock or
assets; the Company has not in any manner altered or amended its charter or
articles of incorporation since it filed its original Certificate of
Incorporation.
(d) The Seller represents and warrants that the Company is the sole and
absolute owner of the assets attached hereto as Composite Exhibit "A"; such
assets are free and clear of any liens, encumbrances or restrictions on sale and
has complete power, right and authority to sell the same.
(e) The Seller has furnished to the Buyer financial statements
consisting of the balance sheet of the Company as of December 31, 1997 and the
statement of income for the twelve months then ended, and certified balance
sheet and profit and loss statement as of December 31, 1997, copies of which
financial statements are attached hereto as part of Composite Exhibit "A." Such
financial statements are correct and complete and present fairly the financial
position of the Company. The Company has also furnished to Buyer income tax
(state and federal and franchise tax) returns for the last two years and Seller
represents that they are true and correct.
Since the time period covered as reflected by Composite Exhibit "A",
there has not been any material adverse change in the financial position,
business, or properties of the Company other than changes in the normal and
usual course of its business. The basis for income tax purposes of all assets
set forth in the balance sheet of the Company as reflected in Composite Exhibit
"A", does not materially vary from the amounts at which such assets are shown by
such balance sheet.
All tax returns and reports of the Company required by any governmental
agency or the laws of Florida and any other jurisdiction in which the Company is
qualified have been duly filed and all taxes assessments upon or measured by any
of the properties, franchises, income or receipts
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of the Company have been audited by taxing officials as set forth in Exhibit "B"
and no deficiencies have proposed as a result of such audit which have not been
paid.
(f) Exhibit "C" hereto attached contains a listing and description of all
leases under which the Company is presently either lessor or lessee, including,
as part of such description, term, expiration date, rental, and renewal or
purchase privilege. The Company represents that it is in full force and effect
and that no default, or breach, has occurred which would make said Agreement
unenforceable. All leases are to be prorated based on the date of closing.
(g) There are no actions, suits or proceedings pending or to the
knowledge of the Seller or the Company, threatened against or affecting the
Company or any of its properties at law or in equity or before or by any
federal, state municipal or other governmental department, commission, board,
bureau, agency or instrumentality which involve the possibility of any
judgement, liability or order which may result in any material adverse change in
the business, operations, properties, assets or liabilities of the Company, and
the Company is not, to the knowledge of the Seller or the Company, in default in
respect of any order, injunction or decree of any court or any government
instrumentality. Notwithstanding the foregoing, there is a lawsuit pending
between the Company and Skinner which Seller shall continues to take full
responsibility for in terms of litigating said costs, any judgments and/or
awards and all costs and fees associated therewith.
(h) The Company owns outright and absolutely all properties and assets
reflected on its books at the date hereof as being owned by it, including assets
in the ordinary course of business, and other than is disclosed in Exhibit "D"
hereto, subject to no liens, mortgages or encumbrances of any kind except as
noted in Exhibits "A" and "D."
(i) Except as set forth in Exhibit "E" attached hereto, the Company is
not a party to any written or oral contract which would affect the assets of the
Company.
(k) All notes and accounts receivable of the Company are valid and
enforceable against a maker or debtor, as the case may be, for the original
principal amount or unpaid balance and for an aggregate amount at least equal to
the amount of such notes and accounts receivable shown in Exhibit "A" and
provide for any losses which may be sustained on realization of the receivables.
To the best knowledge of the Seller and of the Company, no maker of any such
note and no debtor owing any such account is insolvent or unable to pay the
amount owing to the Company.
(1) The Company has not since the date of Exhibit "A" attached hereto(i)
issued or agreed to issue any stock, bonds or other securities, including
securities convertible into stock, except the capital stock issued and now owned
by the seller; (ii) declared or made any payment or distribution to shareholders
or purchased or redeemed any shares of its capital stock; (iii) mortgaged,
pledged or subjected to lien, charge or any other encumbrance, any of its
assets; (iv) suffered any damage or loss, whether or not covered by insurance,
materially affecting its property or business; (v) sold or transferred any of
its assets except in the ordinary and usual course of its business as conducted
during calendar year 1998; (vi) paid or agreed to pay to any officer, employee
or other person any extraordinary compensation or bonus, or increased the salary
or other compensation of any officer; or (vii) incurred any material obligations
or liabilities, absolute or contingent, except current liabilities incurred, and
obligations under contracts entered into, in the ordinary and usual course of
business.
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(m) There are no provisions in the Articles of Incorporation or Bylaws
of the Company, or any agreements to which the Company or the Seller is a party,
which prohibit, limit, or otherwise affect the right, power and authority of the
Seller to execute this Agreement or to consummate the transactions contemplated
thereby.
(n) As of the execution of this Agreement, the Seller and the Company
will give or cause to be given to the Buyer and to its representatives full
access during normal business hours to the properties owned by the Company and
to the books, records, contracts and the documents of the Company, and they will
furnish or cause to be furnished to the Buyer all information with respect to
the business affairs and property of the Company as the Buyer may from time to
time reasonably request and as maybe related to the terms of the Agreement.
(o) Except as otherwise provided herein, the Company will carry on its
business in substantially the same manner as heretofore, cause its properties to
be maintained and kept in good condition, repair and working order, keep in
force and effect each and every lease, agreement and insurance comparable in
amount and scope to coverage now maintained by it, and use its best efforts to
maintain and preserve its business organization intact, which has been approved
by the Buyer in its "as is" condition.
(p) The warranties and representations of each of the parties to this
Agreement and the indemnity provisions hereof shall survive the date hereof, and
the consummation of the transactions contemplated herein, notwithstanding any
investigation or examination made for or on behalf of the parties hereto or the
acceptance by the Buyer of any certificate or opinion furnished in connection
with this transaction. The Seller shall indemnify and hold harmless the Buyer
against any loss, damage or expense, including, but not limited to, legal and
other fees, for taxes, interest, assessments and penalties thereon of any kind
or nature, for any period prior to the date of this Agreement, and any
retroactive insurance premiums incurred or sustained by the Buyer, or any loss,
damage or expense as a result of or attributable to any misrepresentation or
breach of warranty by the Seller and against any such loss, damage or expense
which would not have been incurred or sustained by the Buyer if such
representations and warranties had been true and correct.
3. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller as follows:
(a) The Buyer is a corporation duly organized, existing and in good
standing under the laws of the State of Florida and is duly authorized to own
the properties and conduct the business now owned and conducted by it.
(b) As of the date hereof, the Buyer's authorized capital stock consists
of shares of no par value common stock. All of such issued shares have been
validly issued and are fully paid and nonassessable.
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(c) As of the date hereof the Buyer has and shall have the corporate power
and authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly executed and delivered by the Buyer will
constitute a legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors,
rights generally or by general equitable principles.
(d) The Purchase Shares have been duly authorized and validly issued and
when delivered to Seller will have been fully paid and non-assessable.
(e) The Buyer is acquiring the Shares for its own account for investment
purposes and not with a view to any distribution thereof.
4. Conditions for Consummation of this Agreement.
(a) All representations and warranties of the Buyer and Seller contained
in this Agreement shall have been true in all material respects on the date
thereof.
(b) During the period from the date of the balance sheets attached hereto
as Exhibit "A" to this date, there shall not have been any material adverse
change in or to the business or any of the rights or assets and properties, or
any material adverse change in the conditions, financial or otherwise, of the
Company.
(c) The Buyer shall execute those documents necessary to have the Seller
removed from any personal liability for the trade accounts listed in Schedule
"F".
(d) The Seller shall have furnished to the Buyer as of this date, a letter
from the accountants for the Company stating that nothing has come to their
attention which would indicate that there had been any material adverse change
in the financial position or results of operations of the Company in the period
of calendar year 1997.
(e) All legal matters in connection with this Agreement and all
transactions contemplated hereunder shall have been approved by counsel for the
Buyer at the time of execution.
(f) At the time of Closing, or promptly thereafter, the Buyer shall assume
the obligations set forth in Schedule "F".
(g) Delivery of all the books and records and of the Company or copies
of the same to the Buyer regarding the assets and liabilities of the Company.
(h) Buyer shall enter into a five year employment agreement with Maurice
Malacarne in the form attached hereto as Exhibit "G"
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5. Miscellaneous.
(a) The Buyer and Seller represent that no broker has been involved in
this transaction.
(b) The Seller and the Buyer, at any time after the date of this
Agreement and from time to time upon request of the other party, will execute
and deliver such further instruments of conveyance, assignment and transfer, and
take such other action as such other party may reasonably request in order to
effectuate the purposes of this Agreement.
(c) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective representative, successors, heirs and
assigns.
(d) Any notice or communication required hereunder shall be sufficiently
given if delivered or mailed by certified mail, postage prepaid, to the Seller
or to the Buyer at the addresses set forth below:
If to the Seller: Maurice F. Malacarne
2920 S. Kensington Street
Stuart, FL 34997
If to the Buyer: ThermaCell Technologies, Inc.
1125 Commerce Blvd.
Sarasota, FL 34243
Attn: John Pidorenko, CEO
(e) This Agreement binds and constitutes the entire understanding
between the parties with respect to the sale and purchase provided herein and
all prior agreements, understandings, representations and statements, oral or
written, are merged into this Agreement. No provision hereof may be waived,
modified, amended, discharged or terminated, except by instrument in writing
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge, or termination is sought and then only to the extent set
forth in such instrument.
(f) Section titles or headings in this Agreement are inserted for
convenience and reference only and in no way define, describe or limit the scope
of the intent of this Agreement or any provision
(g) Each and every provision of this Agreement shall be carried out by
the party so charged in a manner deemed duly diligent, expeditious and in
good faith. Whenever the consent of a party is required under this Agreement,
the same may not be unreasonably withheld.
(h) This Agreement may be executed in one or more counterparts, any such
counterpart shall, for all purposes, be deemed an original, including
facsimiles, but all such counterparts together shall constitute but one and the
same instrument.
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(i) This instrument, executed via original or facsimile signature, as of
the date first written above, is a Florida contract, and any disputes thereunder
shall be resolved by the laws of the State of Florida, in the Circuit Court,
Palm Beach County. It is to take effect as a sealed instrument and sets forth
the entire contract between the parties. It is binding upon and inures to the
benefit of the parties hereto and their representatives, heirs, devisees,
executors, administrators, successors, and assigns and may be modified, amended
or terminated only by a written instrument executed by both the Seller and the
Buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
SELLER:
T-COAST PAVERS/SEALCO SYSTEMS, INC.
By: /s/ Maurice Malacarne
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Maurice Malacarne, President
/s/ Maurice Malacarne
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Maurice Malacarne
/s/ Judy Malacarne
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Judy Malacarne
BUYER:
THERMACELL TECHNOLOGIES, INC.
By: /s/ John Pidorenko
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John Pidorenko, President
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LIST OF EXHIBITS
1. Exhibit "A" Financial Statements
2. Exhibit "B" Income Tax Returns
3. Exhibit "C" Listing and description of leases
4. Exhibit "D" Properties subject of Liens, Mortgages
5. Exhibit "E" Contracts to which the Company is subject
6. Exhibit "F" Trade Accounts
7. Exhibit "G" Employment contract to be entered into between Buyer and
Maurice Malacarne