EXHIBIT 2.1
SHARE EXCHANGE AGREEMENT
BY AND AMONG
BLACKFOOT ENTERPRISES, INC.
AND
THE SHAREHOLDERS OF
TOWER TECH SYSTEMS, INC.
AND
TOWER TECH SYSTEMS, INC.
DATED AS OF NOVEMBER 7, 2005
TABLE OF CONTENTS
PAGE
THE SHARE EXCHANGE................................................................................................1
1.1 THE SHARE EXCHANGE..............................................................................1
1.2 EFFECTIVE DATE..................................................................................1
1.3 EXCHANGE OF TOWER TECH COMMON STOCK.............................................................1
1.4 EXCHANGE OF CERTIFICATES........................................................................1
1.5 REPORTING OF SHARE EXCHANGE.....................................................................2
1.6 BOARD OF DIRECTORS OF BLACKFOOT.................................................................2
THE CLOSING.......................................................................................................2
2.1 TIME AND PLACE OF CLOSING.......................................................................2
2.2 OBLIGATIONS OF THE TOWER TECH SHAREHOLDERS AT OR PRIOR TO THE CLOSING...........................2
2.3 OBLIGATIONS OF BLACKFOOT AT OR PRIOR TO THE CLOSING.............................................2
REPRESENTATIONS AND WARRANTIES OF THE TOWER TECH SHAREHOLDERS.....................................................3
3.1 ORGANIZATION AND QUALIFICATION..................................................................3
3.2 CAPITALIZATION..................................................................................3
3.3 SUBSIDIARIES AND AFFILIATES.....................................................................4
3.4 OPTIONS OR OTHER RIGHTS.........................................................................4
3.5 OWNERSHIP OF SHARES.............................................................................4
3.6 VALIDITY AND EXECUTION OF AGREEMENT.............................................................4
3.7 NO CONFLICT.....................................................................................4
3.8 CONSENTS AND APPROVALS..........................................................................5
3.9 VIOLATION OF LAWS, PERMITS, ETC.................................................................5
3.10 BOOKS AND RECORDS...............................................................................5
3.11 TOWER TECH FINANCIAL STATEMENTS.................................................................5
3.12 UNDISCLOSED LIABILITIES.........................................................................6
3.13 TITLE TO PROPERTY; ENCUMBRANCES.................................................................6
3.14 TAXES...........................................................................................6
3.15 LITIGATION......................................................................................7
3.16 CONTRACTS AND OTHER AGREEMENTS..................................................................7
3.17 ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE........................................................7
3.18 COMPENSATION ARRANGEMENTS; OFFICERS, DIRECTORS AND EMPLOYEES....................................8
3.19 ERISA...........................................................................................8
3.20 OPERATIONS......................................................................................8
3.21 INTANGIBLE PROPERTY AND INTELLECTUAL PROPERTY..................................................10
3.22 EMPLOYEE RELATIONS.............................................................................10
3.23 INSURANCE......................................................................................10
3.24 LICENSES AND PERMITS...........................................................................11
3.25 BROKERS........................................................................................11
3.26 ACQUISITION OF BLACKFOOT SHARES................................................................11
3.27 DISCLOSURE.....................................................................................11
REPRESENTATIONS AND WARRANTIES OF BLACKFOOT......................................................................11
4.1 ORGANIZATION AND QUALIFICATION.................................................................12
4.2 CAPITALIZATION.................................................................................12
4.3 SUBSIDIARIES AND AFFILIATES....................................................................12
4.4 OPTIONS OR OTHER RIGHTS........................................................................12
4.5 VALIDITY AND EXECUTION OF AGREEMENT............................................................12
4.6 NO CONFLICT....................................................................................12
4.7 CONSENTS AND APPROVALS.........................................................................13
4.8 VIOLATION OF LAWS, PERMITS, ETC................................................................13
4.9 BOOKS AND RECORDS..............................................................................13
4.10 BLACKFOOT FINANCIAL STATEMENTS.................................................................13
4.11 UNDISCLOSED LIABILITIES........................................................................14
4.12 TITLE TO PROPERTY; ENCUMBRANCES................................................................14
4.13 TAXES..........................................................................................14
4.14 LITIGATION.....................................................................................14
4.15 CONTRACTS AND OTHER AGREEMENTS.................................................................15
4.16 COMPENSATION ARRANGEMENTS; OFFICERS, DIRECTORS AND
EMPLOYEES......................................................................................15
4.17 ERISA..........................................................................................15
4.18 OPERATIONS.....................................................................................15
4.19 BROKERS........................................................................................17
4.20 APPROVAL OF SHARE EXCHANGE.....................................................................17
4.21 SEC REPORTING STATUS...........................................................................17
4.22 INVESTMENT COMPANY.............................................................................17
4.23 OTC BULLETIN BOARD STATUS......................................................................17
4.24 DISCLOSURE.....................................................................................17
ACTIONS PRIOR TO CLOSING.........................................................................................18
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS......................................................18
5.2 CONDUCT OF BUSINESS............................................................................18
5.3 PRESERVATION OF BUSINESS.......................................................................18
5.4 ADVICE OF CHANGES..............................................................................18
5.5 OTC BULLETIN BOARD.............................................................................19
5.6 SEC REPORTS....................................................................................19
5.7 OTHER AGREEMENTS...............................................................................19
CONDITIONS PRECEDENT TO CLOSING..................................................................................19
6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BLACKFOOT TO COMPLETE THE CLOSING...................19
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE TOWER TECH SHAREHOLDERS TO
COMPLETE THE CLOSING...........................................................................20
POST-CLOSING COVENANTS...........................................................................................22
7.1 FURTHER INFORMATION............................................................................22
7.2 RECORD RETENTION...............................................................................22
7.3 POST-CLOSING ASSISTANCE........................................................................22
7.4 SEC REPORTING..................................................................................22
TERMINATION OF AGREEMENT.........................................................................................23
8.1 TERMINATION....................................................................................23
8.2 SURVIVAL AFTER TERMINATION.....................................................................23
MISCELLANEOUS....................................................................................................23
9.1 EXPENSES.......................................................................................23
9.2 FURTHER ASSURANCES.............................................................................24
9.3 NOTICES........................................................................................24
9.4 ARBITRATION....................................................................................25
9.5 PUBLICITY......................................................................................25
9.6 ENTIRE AGREEMENT...............................................................................25
9.7 WAIVERS AND AMENDMENTS.........................................................................25
9.8 GOVERNING LAW..................................................................................26
9.9 BINDING EFFECT, NO ASSIGNMENT..................................................................26
9.10 COUNTERPARTS...................................................................................26
9.11 EXHIBITS AND SCHEDULES.........................................................................26
9.12 EFFECT OF DISCLOSURE ON SCHEDULES..............................................................26
9.13 HEADINGS.......................................................................................26
9.14 SEVERABILITY OF PROVISIONS.....................................................................26
Schedule A - List of Tower Tech Shareholders
THIS SHARE EXCHANGE AGREEMENT is entered into as of November 7, 2005, by and
among BLACKFOOT ENTERPRISES, INC., a Nevada corporation ("BLACKFOOT"), the
persons named on Schedule A attached to this Agreement (the "TOWER TECH
SHAREHOLDERS"), and TOWER TECH SYSTEMS, INC., a Wisconsin corporation ("TOWER
TECH").
Recitals
It is the intention of the parties hereto that Tower Tech become a wholly-owned
subsidiary of Blackfoot through the exchange of all outstanding shares of Tower
Tech Common Stock for shares of Blackfoot Common Stock on the following terms:
Agreement
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements hereinafter set forth, in accordance with the provisions of
applicable law, the parties hereby agree as follows:
ARTICLE I
THE SHARE EXCHANGE
1.1 THE SHARE EXCHANGE. Subject to the terms and conditions of this
Agreement, at Closing, the Tower Tech Shareholders shall tender all
their respective shares of Tower Tech Common Stock to Blackfoot in
exchange for Blackfoot Common Stock, and Tower Tech shall become a
wholly-owned subsidiary of Blackfoot.
1.2 EFFECTIVE DATE. The Share Exchange will become effective at Closing.
1.3 EXCHANGE OF TOWER TECH COMMON STOCK. The Tower Tech Common Stock
shall be exchanged in the Share Exchange as follows:
(a) Each certificate that prior to the Effective Date represented
an outstanding share of Tower Tech Common Stock will be
exchanged for 45,909.09 shares of Blackfoot Common Stock.
(b) No fraction of a share of Blackfoot Common Stock will be
issued upon such exchange of shares of Tower Tech Common
Stock. Instead amounts of shares will be rounded to the
nearest whole number.
1.4 EXCHANGE OF CERTIFICATES. At Closing, or as soon as practicable
thereafter, Blackfoot shall deliver to each Tower Tech Shareholder
listed on Schedule A hereto, certificates representing the whole number
of shares of Blackfoot Common Stock into which such Tower Tech
Shareholder's shares of Tower Tech Common Stock shall have been
exchanged as set forth herein, and such Tower Tech Shareholder's
certificate(s) of Tower Tech Common Stock shall be delivered to
Blackfoot.
Share Exchange Agreement - Page 1
1.5 REPORTING OF SHARE EXCHANGE. For federal, state, and local income tax
return reporting purposes, all parties agree to treat the Share
Exchange as a nontaxable exchange under Section 368 of the Internal
Revenue Code.
1.6 BOARD OF DIRECTORS OF BLACKFOOT. Simultaneously at Closing, the
existing officers and directors of Blackfoot shall resign from their
positions and three members selected by Tower Tech shall be appointed
to fill the vacancies.
ARTICLE II
THE CLOSING
2.1 TIME AND PLACE OF CLOSING. The closing of the Share Exchange (the
"CLOSING") shall, unless otherwise
agreed to in writing by the parties, take place at the offices of Dill
Dill Carr Stonbraker & Hutchings, P.C., at 10:00 a.m., local time, on
or prior to December 16, 2005.
2.2 OBLIGATIONS OF THE TOWER TECH SHAREHOLDERS AT OR PRIOR TO THE CLOSING.
At or prior to Closing, and subject to the satisfaction by Blackfoot of
its obligations hereunder, the Tower Tech Shareholders shall deliver to
Blackfoot the following:
(a) A copy of the Articles of Incorporation of Tower Tech
certified as of a date within thirty days of the Closing by
the Secretary of State of the State of Wisconsin and certified
by the corporate secretary of Tower Tech as to the absence of
any amendments between the date of certification by the
Secretary of State and the Closing;
(b) A certificate from the Secretary of State of the State of
Wisconsin as to the existence and good standing of Tower Tech
as of a date within 10 days of the Closing;
(c) A certificate of the corporate secretary of Tower Tech
attaching thereto true and correct copies of the bylaws of
Tower Tech;
(d) The certificate of Tower Tech referred to in SECTION 6.1
hereof; and
(e) Such other documents as are required pursuant to this
Agreement or as may reasonably be requested from the Tower
Tech Shareholders by Blackfoot or its counsel.
(f) The certificates evidencing the shares of Tower Tech Common
Stock owned by the Tower Tech Shareholders, duly endorsed for
transfer to Blackfoot.
2.3 OBLIGATIONS OF BLACKFOOT AT OR PRIOR TO THE CLOSING. At or prior to
Closing, and subject to the satisfaction by the Tower Tech Shareholders
of their obligations hereunder, Blackfoot shall deliver to the Tower
Tech Shareholders the following:
(a) A copy of the Articles of Incorporation of Blackfoot certified
as of a date within thirty days of the Closing by the
Secretary of State of the State of Nevada and certified by the
Share Exchange Agreement - Page 2
corporate secretary of Blackfoot as to the absence of any
amendments between the date of certification by the Secretary
of State and the Closing;
(b) A certificate from the Secretary of State of the State of
Nevada as to the existence and good standing of Blackfoot as
of a date within 10 days of the Closing;
(c) A certificate of the corporate secretary of Blackfoot
attaching thereto true and correct copies of the bylaws of
Blackfoot and the corporate resolutions duly adopted by the
board of directors of Blackfoot authorizing the consummation
of the transactions contemplated hereby;
(d) The certificate of Blackfoot referred to in SECTION 6.2
hereof; and
(e) Such other documents as are required pursuant to this
Agreement or as may reasonably be requested from Blackfoot by
the Tower Tech Shareholders or their counsel.
(f) Certificates evidencing the Blackfoot Common Stock to be
issued to the Tower Tech Shareholders pursuant to Article I
hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE TOWER TECH SHAREHOLDERS
Except as expressly set forth and specifically identified by the section number
of this Agreement in the schedule delivered by the Tower Tech Shareholders to
Blackfoot contemporaneously with the execution of this Agreement (the "TOWER
TECH SHAREHOLDER DISCLOSURE SCHEDULE"), the Tower Tech Shareholders and Tower
Tech represent, warrant, and covenant to Blackfoot as follows:
3.1 ORGANIZATION AND QUALIFICATION. Tower Tech is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Wisconsin and has all requisite corporate power and authority
to (a) own, lease and operate its properties and assets as they are now
owned, leased and operated and (b) carry on its business as currently
conducted and as proposed to be conducted. Tower Tech is duly qualified
or licensed to do business in each jurisdiction in which the failure to
be so qualified or licensed could have a material adverse effect in the
business, operations, properties, assets, liabilities, prospects, or
condition (financial or otherwise) of Tower Tech (hereinafter a
"MATERIAL EFFECT").
3.2 CAPITALIZATION. The issued and outstanding capital stock of Tower Tech
consists of 550 shares of common stock. All of the issued and
outstanding shares of capital stock of Tower Tech are validly issued,
fully paid, and non assessable, and none of such shares have been
issued in violation of the preemptive rights of any person.
Share Exchange Agreement - Page 3
3.3 SUBSIDIARIES AND AFFILIATES. Tower Tech does not own or hold, directly
or indirectly, any equity, debt, or other interest in any entity or
business or any option to acquire any such interest.
3.4 OPTIONS OR OTHER RIGHTS. No options, warrants, calls, commitments or
other rights to acquire, sell or issue shares of capital stock or other
equity interests of Tower Tech, whether upon conversion of other
securities or otherwise, are issued or outstanding, and there is no
agreement or understanding with respect to the voting of such capital
stock or other equity interests.
3.5 OWNERSHIP OF SHARES. The shares of Tower Tech Common Stock are owned of
record and beneficially by the Tower Tech Shareholders as set forth on
Schedule A. The Tower Tech Shareholders possess full authority and
legal right to sell, transfer, and assign the entire legal and
beneficial ownership of the shares of Tower Tech Common Stock, free
from all liens, claims, and encumbrances of any kind; and there are no
outstanding rights or obligations granted by the Tower Tech
Shareholders to purchase or acquire any of the shares of Tower Tech
Common Stock or any interest in any of the shares of Tower Tech Common
Stock. Upon transfer of the shares of Tower Tech Common Stock to
Blackfoot hereunder at the Closing, Blackfoot will receive the entire
legal and beneficial interest in the shares of Tower Tech Common Stock,
free and clear of all liens, claims, and encumbrances and subject to no
legal or equitable restrictions of any kind.
3.6 VALIDITY AND EXECUTION OF AGREEMENT. Each of the Tower Tech
Shareholders has the full legal right, capacity and power required to
enter into, execute and deliver this Agreement and to carry out the
transactions contemplated. This Agreement has been duly executed and
delivered by each of the Tower Tech Shareholders and constitutes the
valid and binding obligation of each of the Tower Tech Shareholders,
enforceable in accordance with its terms, subject to the qualification
that enforcement of the rights and remedies created hereby is subject
to (a) bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of
creditors and (b) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
3.7 NO CONFLICT. None of the execution, delivery, or performance of this
Agreement does or will: (a) result in any violation or be in conflict
with or constitute a default under any term or provision of the
Articles of Incorporation or bylaws of Tower Tech or any term or
provision of any judgment, decree, order, statute, injunction, rule, or
regulation applicable to Tower Tech or any Tower Tech Shareholder, or
of any material note, bond, mortgage, indenture, lease, license,
franchise, agreement, or other instrument or obligation to which Tower
Tech or any Tower Tech Shareholder is bound; (b) result in the creation
of any material option, pledge, security interest, lien, charge,
encumbrance, or restriction, whether imposed by agreement,
understanding, law or otherwise, except those arising under applicable
federal or state securities laws (hereinafter an "ENCUMBRANCE") upon
any of the properties or assets of Tower Tech or any Tower Tech
Shareholder pursuant to any such term or provision; or (c) constitute a
default under, terminate, accelerate, amend or modify, or give any
party the right to terminate, accelerate, amend, modify, abandon, or
refuse to perform or comply with, any material contract, agreement,
arrangement, commitment, or plan to which Tower Tech or any Tower Tech
Share Exchange Agreement - Page 4
Shareholder is a party, or by which Tower Tech or any Tower Tech
Shareholder or any of their respective properties or assets may be
subject or bound.
3.8 CONSENTS AND APPROVALS. No federal, state, or other regulatory
approvals are required to be obtained, nor any regulatory requirements
complied with, by Tower Tech or any Tower Tech Shareholder in
connection with the Share Exchange.
3.9 VIOLATION OF LAWS, PERMITS, ETC.
(a) Tower Tech is not in violation of any term or provision of its
Articles of Incorporation or bylaws, or of any material term
or provision of any judgment, decree, order, statute, law,
injunction, rule, ordinance, or governmental regulation that
is applicable to it and where the failure to comply with which
would have a Material Effect.
(b) Tower Tech has maintained in full force and effect all
certificates, licenses, and permits material to the conduct of
its business, and has not received any notification that any
revocation or limitation thereof is threatened or pending.
3.10 BOOKS AND RECORDS. The books and records of Tower Tech (including,
without limitation, the books of account, minute books, and stock
record books) are complete and correct in all material respects and
have been maintained in accordance with sound business practices. The
minute books of Tower Tech are complete and current in all material
respects and, as applicable, accurately reflect all actions taken by
the shareholders and the board of directors of Tower Tech since the
date of inception of Tower Tech, and all signatures contained therein
are the true signatures of the persons whose signatures they purport to
be.
3.11 TOWER TECH FINANCIAL STATEMENTS.
(a) The audited balance sheets of Tower Tech as of December 31,
2004 and 2003, and the related audited statements of income,
statements of cash flow and statements of shareholders equity
for the years then ended, true and complete copies of which
have been delivered to Blackfoot, present fairly, in all
material respects, the financial position of Tower Tech as at
such dates and the results of operations of Tower Tech for the
years then ended, in accordance with generally accepted
accounting principles ("GAAP") consistently applied for the
periods covered thereby.
(b) The unaudited balance sheet of Tower Tech as of June 30, 2005
and the related statements of income, statements of cash flow
and statements of shareholders equity for the six-month period
then ended, true and complete copies of which have heretofore
been delivered to Blackfoot, present fairly, in all material
respects, the financial position of Tower Tech as of such date
and the results of operations of Tower Tech for the period
then ended, in each case in accordance with GAAP consistently
applied for the six-month period covered thereby.
Share Exchange Agreement - Page 5
(c) The financial statements referred to in paragraphs (a) and (b)
above are hereinafter referred to as the TOWER TECH FINANCIAL
STATEMENTS.
3.12 UNDISCLOSED LIABILITIES. Tower Tech does not have any material direct
or indirect indebtedness, liability, claim, loss, damage, deficiency,
obligation or responsibility, fixed or unfixed, choate or inchoate,
liquidated or un-liquidated, secured or unsecured, accrued, absolute,
contingent or otherwise (all of the foregoing being collectively
referred to as "LIABILITIES" and individually as a "Liability"), of a
kind required by GAAP to be set forth on a financial statement that is
not fully and adequately reflected or reserved against on the Tower
Tech Financial Statements. Tower Tech does not have any Liabilities,
whether or not of a kind required by GAAP to be set forth on a
financial statement, other than (a) Liabilities incurred in the
ordinary course of business since the date of the latest balance sheet
included in the Tower Tech Financial Statements that are consistent
with past practice and are included in the latest Tower Tech Financial
Statements, (b) Liabilities that are fully reflected on or reserved
against on the latest balance sheet included in the Tower Tech
Financial Statements, or (c) as specifically disclosed in the Tower
Tech Financial Statements.
3.13 TITLE TO PROPERTY; ENCUMBRANCES. Tower Tech has good and indefeasible
title to and other legal right to use all properties and assets, real,
personal and mixed, tangible and intangible, reflected as owned on the
latest balance sheet included in the Tower Tech Financial Statements or
acquired after the date of such balance sheet, except for properties
and assets disposed of in accordance with customary practice in the
business or disposed of for full and fair value since the date of such
balance sheet in the ordinary course of business consistent with past
practice and except for matters that would not have a Material Effect.
3.14 TAXES. All returns, reports, information returns, or other documents
(including any related or supporting information) filed or required to
be filed with any federal, state, local, or foreign governmental entity
or others authority in connection with the determination, assessment or
collection of any Tax (whether or not such Tax is imposed on Tower
Tech) or the administration of any laws, regulations or administrative
requirements relating to any Tax (hereinafter "TAX RETURNS"), reports
and declarations of estimated tax or estimated tax deposit forms
required to be filed by Tower Tech have been duly and timely filed;
Tower Tech has paid all taxes, charges, fees, levies or other
assessments imposed by any federal, state, local or foreign taxing
authority, whether disputed or not, including, without limitation,
income, capital, estimated, excise, property, sales, transfer,
withholding, employment, payroll, and franchise taxes and such terms
shall include any interest, penalties or additions attributable to or
imposed on or with respect to such assessments and any expenses
incurred in connection with the settlement of any tax liability
(hereinafter "TAXES") which have become due whether pursuant to such
returns or any assessment received by it or otherwise, and has paid all
installments of estimated Taxes due; and all Taxes which Tower Tech is
required by law to withhold or to collect have been duly withheld and
collected, and have been paid over to the proper court, tribunal,
arbitrator or any government or political subdivision thereof, whether
federal, state, county, local or foreign, or any agency, authority,
official or instrumentality of any such government or political
subdivision (hereinafter "GOVERNMENTAL OR REGULATORY BODY"). There are
no tax liens upon any of the assets or properties of Tower Tech except
for any lien, pledge, hypothecation, mortgage, security interest,
Share Exchange Agreement - Page 6
claim, lease, charge, option, right of first refusal, easement,
servitude, transfer restriction under any member or similar agreement,
encumbrance or any other restriction or limitation whatsoever, other
than (i) materialmen's, mechanics', repairmen's or other like liens
arising in the ordinary course of business for amounts either not yet
due or being contested in good faith and by appropriate proceedings so
long as such proceedings shall not involve any material danger of sale,
forfeiture or loss of any part of the assets and shall have been
disclosed to Blackfoot hereunder, or (ii) any lien arising as a result
of any act or omission of Blackfoot (hereinafter "LIENS") for Taxes not
yet due. Tower Tech is not a party to any express tax settlement
agreement, arrangement, policy or guideline, formal or informal (a
"SETTLEMENT AGREEMENT"), and Tower Tech does not have any obligation to
make payments under any Settlement Agreement.
3.15 LITIGATION.
(a) There is no action, proceeding, investigation, or inquiry
pending or, to the best of Tower Tech's knowledge, threatened
(i) against or affecting any of Tower Tech's assets or
business that, if determined adversely to Tower Tech, would
result in a Material Effect or (ii) that questions this
Agreement or any action contemplated by this Agreement or in
connection with the Share Exchange.
(b) Tower Tech has no knowledge of any state of facts or of the
occurrence or nonoccurrence of any event or group of related
events; that should reasonably cause Tower Tech to determine
that there exists any basis for any material claim against
Tower Tech for any of the matters described in paragraph (a)
above.
3.16 CONTRACTS AND OTHER AGREEMENTS. SECTION 3.16 to the Tower Tech
Shareholder Disclosure Schedule contains a complete and correct list as
of the date hereof of all material agreements, contracts, and
commitments (and all amendments thereto), written or oral, to which
Tower Tech is a party or by which any of its properties is bound. Tower
Tech has made available to Blackfoot complete and correct copies of all
material written agreements, contracts, and commitments, together with
all amendments thereto, and accurate (in all material respects)
descriptions of all material oral agreements. Such agreements,
contracts, and commitments are in full force and effect, and, to the
best of Tower Tech's knowledge, all other parties to such agreements,
contracts, and commitments have performed all obligations required to
be performed by them to date thereunder in all material respects and
are not in default thereunder in any material respect.
3.17 ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE. All accounts receivable
reflected on the balance sheet of Tower Tech included in the Tower Tech
Financial Statements, and all accounts receivable arising subsequent to
June 30, 2005, (a) have arisen from BONA FIDE sales transactions in the
ordinary course of business on ordinary trade terms and (b) have been
collected or are collectible in the ordinary course of business in the
aggregate recorded amounts thereof in accordance with their terms
without valid set-off or counterclaim. Tower Tech has made payments on
accounts payable and other current obligations arising subsequent to
June 30, 2005, in accordance with past practice of the business of
Tower Tech.
Share Exchange Agreement - Page 7
3.18 COMPENSATION ARRANGEMENTS; OFFICERS, DIRECTORS AND EMPLOYEES. SECTION
3.18 to the Tower Tech Shareholder Disclosure Schedule sets forth: (a)
the name of all present officers, directors and employees of Tower Tech
and current annual salary, including any promised, expected or
customary bonus or such other amount, and (b) the names and titles of
all directors and officers of Tower Tech. Tower Tech has not made a
commitment or agreement (verbally or in writing) to increase the
compensation or to modify the conditions or terms of employment of any
person listed in SECTION 3.18 to the Tower Tech Shareholder Disclosure
Schedule. To the knowledge of Tower Tech, none of such persons has made
a threat to Tower Tech to terminate such person's relationship with
Tower Tech.
3.19 ERISA. Except as set forth in SECTION 3.19 to the Tower Tech
Shareholder Disclosure Schedule, there are no employee benefit plans as
defined in ERISA ("Plans") maintained for the benefit of, or covering,
any employee, former employee, independent contractor or former
independent contractor of Tower Tech, or their dependents or their
beneficiaries, or otherwise, now or heretofore contributed to by Tower
Tech, and no such Plan is or has ever been subject to ERISA.
3.20 OPERATIONS. Except as expressly authorized by this Agreement, and
except as set forth in SECTION 3.20 to the Tower Tech Shareholder
Disclosure Schedule, since the date of the latest Tower Tech Financial
Statements, Tower Tech has not:
(a) amended its Articles of Incorporation or By-Laws or merged
with or into or consolidated with any other entity, or changed
or agreed to rearrange in any manner the character of the
business of Tower Tech;
(b) issued, sold or purchased options or rights to subscribe to,
or entered into any contracts or commitments to issue, sell or
purchase, any shares of its capital stock or other equity
interests;
(c) entered into, amended or terminated any (i) employment
agreement or collective bargaining agreement, (ii) adopted,
entered into or amended any arrangement which is, or would be,
a Plan or (iii) made any change in any actuarial methods or
assumptions used in funding any Plan or in the assumptions or
factors used in determining benefit equivalencies thereunder;
(d) issued any note, bond or other debt security, created,
incurred or assumed any indebtedness for borrowed money other
than in the ordinary course of business in connection with
trade payables, or guaranteed any indebtedness for borrowed
money or any capitalized lease obligation;
(e) declared, set aside or paid any dividends or declared or made
any other distributions of any kind to the shareholders, or
made any direct or indirect redemption, retirement, purchase
or other acquisition of any shares of its capital stock or
other equity interests;
(f) knowingly waived any right of material value to the business
of Tower Tech;
Share Exchange Agreement - Page 8
(g) made any change in its accounting methods or practices or made
any changes in depreciation or amortization policies or rates
adopted by it or made any material write-down of inventory or
material write-off as uncorrectable of accounts receivable;
(h) made any wage or salary increase or other compensation payable
or to become payable or bonus, or increase in any other direct
or indirect compensation, for or to any of its officers,
directors, employees, consultants, agents or other
representatives, or any accrual for or commitment or agreement
to make or pay the same, other than increases made in the
ordinary course consistent with past practice;
(i) entered into any transactions with any of its affiliates,
shareholders, officers, directors, employees, consultants,
agents or other representatives (other than employment
arrangements made in the ordinary course of business
consistent with past practice), or any affiliate of any
shareholder, officer, director, consultant, employee, agent or
other representative;
(j) made any payment or commitment to pay any severance or
termination pay to any person or any of its officers,
directors, employees, consultants, agents or other
representatives, other than payments or commitments to pay
such persons or their officers, directors, employees in the
ordinary course of business;
(k) except in the ordinary course of business, (i) entered into
any lease (as lessor or lessee), (ii) sold, abandoned or made
any other disposition of any of its assets or properties other
than in the ordinary course of business consistent with past
practice, (iii) granted or suffered any Lien on any of its
assets or properties other than sales of inventory in the
ordinary course of business, or (iv) entered into or amended
any material contract or other agreement to which it is a
party, or by or to which it or its assets or properties are
bound or subject, or pursuant to which it agrees to indemnify
any person or to refrain from competing with any person, in
each case or type required to be disclosed pursuant to SECTION
3.15 hereof;
(l) except in the ordinary course of business, incurred or assumed
any debt, obligation or liability (whether absolute or
contingent and whether or not currently due and payable);
(m) except for inventory or equipment acquired in the ordinary
course of business, made any acquisition of all or any part of
the assets, properties, capital stock or business of any other
person;
(n) except in the ordinary course of business, paid, directly or
indirectly, any of its Liabilities before the same became due
in accordance with their terms or otherwise than in the
ordinary course of business, except to obtain the benefit of
discounts available for early payment;
Share Exchange Agreement - Page 9
(o) except in the ordinary course of business, created, incurred
or assumed any indebtedness for borrowed money, or guaranteed
any indebtedness for borrowed money or any capitalized lease
obligation, in each case in excess of $5,000 individually or
in the aggregate;
(p) except in the ordinary course of business, made any capital
expenditures or commitments for capital expenditures in
aggregate amount exceeding $5,000; or
(q) except in the ordinary course of business, terminated, failed
to renew, amended or entered into any contract or other
agreement of a type required to be disclosed pursuant to
SECTION 3.16.
3.21 INTANGIBLE PROPERTY AND INTELLECTUAL PROPERTY. Tower Tech possesses all
of the necessary licenses, trademarks, trade names, and domain names
(hereinafter "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct its
business in the manner that is currently being conducted and
anticipates conducting in the future. All of such Intellectual Property
Rights are held in the name of Tower Tech. None of the Intangible
Property of Tower Tech infringes upon the rights of any other person in
any material respect or, to the knowledge of Tower Tech, is so
infringed upon by any other person or its property. Tower Tech has not
received any notice of any claim of any other person relating to any of
the Intangible Property or any process or confidential information of
Tower Tech and does not know of any basis for any such charge or claim.
Except for the Intangible Property, no other material intellectual
property or intangible property rights are required for Tower Tech to
conduct the business of Tower Tech in the ordinary course consistent
with past practice. Except as separately identified in SECTION 3.21 of
the Tower Tech Shareholder Disclosure Schedule, no approval or consent
of any person is needed so that the interest of Tower Tech in the
Intangible Property shall continue to be in full force and effect and
enforceable by Tower Tech following the transactions contemplated by
this Agreement.
3.22 EMPLOYEE RELATIONS. Tower Tech is not a party any agreement with any
labor organization, collective bargaining or similar agreement with
respect to its employees. There are no material complaints, grievances
or arbitrations, employment-related litigation, administrative
proceedings or controversies either pending or, to the knowledge of
Tower Tech, threatened, involving any employee, applicant for
employment, or former employee of Tower Tech against Tower Tech. During
the past five years, Tower Tech has not suffered or sustained any labor
dispute resulting in any work stoppage and no such work stoppage is, to
the knowledge of Tower Tech, threatened. To the knowledge of Tower
Tech, there are no attempts presently being made to organize any
employees employed by Tower Tech.
3.23 INSURANCE. Tower Tech has adequate policies of insurance for its
operations. Tower Tech is not in default with respect to any material
provision contained in any policy or binder of insurance and has not
failed to give any notice or present any claim under any such policy or
binder in due and timely fashion. 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. Tower
Tech has not received any notice of cancellation or non renewal of any
such policy or binder. Tower Tech has not received any notice from any
of its insurance carriers that any insurance premiums will be
Share Exchange Agreement - Page 10
materially increased in the future or that any existing insurance
coverage will not be available in the future on substantially the same
terms as now in effect.
3.24 LICENSES AND PERMITS. Except as set forth in SECTION 3.24 of the Tower
Tech Shareholder Disclosure Schedule, no material government permits,
licenses, domain name and other registrations, and other consents and
authorizations (federal, state, local and foreign) of any Governmental
or Regulatory Body (collectively, "PERMITS") is required to be obtained
by Tower Tech in connection with its properties or the business of
Tower Tech. Tower Tech has not received any notice of any claim of
revocation of any such Permit and has no knowledge of any event which
would be likely to give rise to such a claim.
3.25 BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out by the Tower
Tech Shareholders directly with Blackfoot without the intervention of
any other person on behalf of the Tower Tech Shareholders in such
manner as to give rise to any valid claim by any person against the
Tower Tech Shareholders or Blackfoot for a finder's fee, brokerage
commission or similar payment.
3.26 ACQUISITION OF BLACKFOOT SHARES. Each Tower Tech Shareholder
acknowledges that the Blackfoot Common Stock are restricted securities
under the Securities Act and represents that such Tower Tech
Shareholder (i) is acquiring the Blackfoot Common Stock for his own
account without a view to distribution within the meaning of the
Securities Act; (ii) has received from Blackfoot its filings with the
Securities and Exchange Commission and all other information that he
has deemed necessary to make an informed investment decision with
respect to an investment in Blackfoot in general and the Blackfoot
Common Stock in particular; (iii) is financially able to bear the
economic risks of an investment in Blackfoot; and (iv) has such
knowledge and experience in financial and business matters in general
and with respect to investments of a nature similar to the Blackfoot
Common Stock so as to be capable, by reason of such knowledge and
experience, of evaluating the merits and risks of, and making an
informed business decision with regard to, the acquisition of the
Blackfoot Common Stock. Each Tower Tech Shareholders understands and
agrees that the certificates evidencing the Blackfoot Common Stock
shall bear the usual restrictive legend pertaining to Rule 144 under
the Securities Act and that the Blackfoot Common Stock will not be
transferable except in accordance with applicable rules and regulations
of the Securities and Exchange Commission.
3.27 DISCLOSURE. To the knowledge of the Tower Tech Shareholders, neither
this Agreement, nor any Schedule or Exhibit to this Agreement, contains
an untrue statement of a material fact or omits a material fact
necessary to make the statements contained herein or therein not
misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BLACKFOOT
Except as expressly set forth and specifically identified by the section number
of this Agreement in the schedule delivered by Blackfoot to the Tower Tech
Shareholders contemporaneously with the execution of this Agreement (the
Share Exchange Agreement - Page 11
"BLACKFOOT DISCLOSURE SCHEDULE"), Blackfoot represents, warrants, and covenants
to the Tower Tech Shareholders as follows:
4.1 ORGANIZATION AND QUALIFICATION. Blackfoot is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power and authority to
(a) own, lease and operate its properties and assets as they are now
owned, leased and operated and (b) carry on its business as currently
conducted and as proposed to be conducted. Blackfoot is duly qualified
or licensed to do business in each jurisdiction in which the failure to
be so qualified or licensed could have a Material Effect.
4.2 CAPITALIZATION. The issued and outstanding capital stock of Blackfoot
consists of shares of 9,750,000 common stock, $0.001 par value per
share. All of the issued and outstanding shares of capital stock of
Blackfoot are validly issued, fully paid, and nonassessable, and none
of such shares have been issued in violation of the preemptive rights
of any person. The Blackfoot Common Stock shall be validly issued,
fully paid, and nonassessable.
4.3 SUBSIDIARIES AND AFFILIATES. Blackfoot does not own or hold, directly
or indirectly, any equity, debt, or other interest in any entity or
business or any option to acquire any such interest.
4.4 OPTIONS OR OTHER RIGHTS. No options, warrants, calls, commitments or
other rights to acquire, sell or issue shares of capital stock or other
equity interests of Blackfoot whether upon conversion of other
securities or otherwise, are issued or outstanding, and there is no
agreement or understanding with respect to the voting of such capital
stock or other equity interests.
4.5 VALIDITY AND EXECUTION OF AGREEMENT. The execution and performance of
this Agreement have been duly and validly authorized by the board of
directors of Blackfoot and no other corporate action by Blackfoot is
necessary to authorize the execution, delivery, and performance of this
Agreement, except for the increase in authorized capital stock and
change of the corporate name described in SECTION 6.2 hereof. Blackfoot
has the corporate power and authority to execute and perform this
Agreement and to carry out the transactions contemplated hereby. This
Agreement has been duly and validly executed on behalf of Blackfoot and
is a valid and binding obligation of Blackfoot, enforceable in
accordance with its terms, subject to the qualification that
enforcement of the rights and remedies created hereby is subject to (a)
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and
(b) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
4.6 NO CONFLICT. None of the execution, delivery, or performance of this
Agreement does or will: (a) result in any violation or be in conflict
with or constitute a default under any term or provision of the
Articles of Incorporation or bylaws of Blackfoot or any term or
provision of any judgment, decree, order, statute, injunction, rule, or
regulation applicable to Blackfoot, or of any material note, bond,
mortgage, indenture, lease, license, franchise, agreement, or other
instrument or obligation to which Blackfoot is bound; (b) result in the
Share Exchange Agreement - Page 12
creation of any Encumbrance upon any of the properties or assets of
Blackfoot pursuant to any such term or provision; or (c) constitute a
default under, terminate, accelerate, amend or modify, or give any
party the right to terminate, accelerate, amend, modify, abandon, or
refuse to perform or comply with, any material contract, agreement,
arrangement, commitment, or plan to which Blackfoot is a party, or by
which Blackfoot or any of its properties or assets may be subject or
bound.
4.7 CONSENTS AND APPROVALS. No federal, state, or other regulatory
approvals are required to be obtained, nor any regulatory requirements
complied with, by Blackfoot in connection with the Share Exchange.
4.8 VIOLATION OF LAWS, PERMITS, ETC.
(a) Blackfoot is not in violation of any term or provision of its
Articles of Incorporation or bylaws, or of any material term
or provision of any judgment, decree, order, statute, law,
injunction, rule, ordinance, or governmental regulation that
is applicable to it and where the failure to comply with which
would have a Material Effect.
(b) Blackfoot has maintained in full force and effect all
certificates, licenses, and permits material to the conduct of
its business, and has not received any notification that any
revocation or limitation thereof is threatened or pending.
4.9 BOOKS AND RECORDS. The books and records of Blackfoot (including,
without limitation, the books of account, minute books, and stock
record books) are complete and correct in all material respects and
have been maintained in accordance with sound business practices. The
minute books of Blackfoot are complete and current in all material
respects and, as applicable, accurately reflect all actions taken by
the shareholders and the board of directors of Blackfoot since the date
of inception of Blackfoot, and all signatures contained therein are the
true signatures of the persons whose signatures they purport to be.
4.10 BLACKFOOT FINANCIAL STATEMENTS.
(a) The audited balance sheets of Blackfoot as of December 31,
2004 and 2003, and the related audited statements of income,
statements of cash flow and statements of shareholders equity
for the years then ended, true and complete copies of which
have been delivered to the Tower Tech Shareholders, present
fairly, in all material respects, the financial position of
Blackfoot as at such dates and the results of operations of
Blackfoot for the year then ended, in accordance with GAAP
consistently applied for the periods covered thereby.
(b) The unaudited balance sheet of Blackfoot as of June 30, 2005
and the related statements of income, statements of cash flow
and statements of shareholders equity for the period then
ended, true and complete copies of which have heretofore been
delivered to the Tower Tech Shareholders, present fairly, in
all material respects, the financial position of Blackfoot as
of such date and the results of operations of Blackfoot for
Share Exchange Agreement - Page 13
the period then ended, in each case in accordance with GAAP
consistently applied for the six-month period covered thereby.
(c) The financial statements referred to in paragraphs (a) and (b)
above are hereinafter referred to as the BLACKFOOT FINANCIAL
STATEMENTS.
4.11 UNDISCLOSED LIABILITIES. Blackfoot does not have any Liabilities of a
kind required by GAAP to be set forth on a financial statement that is
not fully and adequately reflected or reserved against on the Blackfoot
Financial Statements. Blackfoot does not have any Liabilities, whether
or not of a kind required by GAAP to be set forth on a financial
statement, other than (a) Liabilities incurred in the ordinary course
of business since the date of the latest balance sheet included in the
Blackfoot Financial Statements that are consistent with past practice
and are included in the latest Blackfoot Financial Statements, (b)
Liabilities that are fully reflected on or reserved against on the
latest balance sheet included in the Blackfoot Financial Statements, or
(c) as specifically disclosed in the Blackfoot Financial Statements.
4.12 TITLE TO PROPERTY; ENCUMBRANCES. Blackfoot has good and indefeasible
title to and other legal right to use all properties and assets, real,
personal and mixed, tangible and intangible, reflected as owned on the
latest balance sheet included in the Blackfoot Financial Statements or
acquired after the date of such balance sheet, except for properties
and assets disposed of in accordance with customary practice in the
business or disposed of for full and fair value since the date of such
balance sheet in the ordinary course of business consistent with past
practice and except for matters that would not have a Material Effect.
4.13 TAXES. All Tax Returns, reports and declarations of estimated tax or
estimated tax deposit forms required to be filed by Blackfoot have been
duly and timely filed; Blackfoot has paid all Taxes which have become
due whether pursuant to such returns or any assessment received by it
or otherwise, and has paid all installments of estimated Taxes due; and
all Taxes which Blackfoot is required by law to withhold or to collect
have been duly withheld and collected, and have been paid over to the
proper Governmental or Regulatory Body. There are no tax liens upon any
of the assets or properties of Blackfoot except for Liens for Taxes not
yet due. Blackfoot is not a party to any Settlement Agreement, and
Blackfoot does not have any obligation to make payments under any
Settlement Agreement.
4.14 LITIGATION.
(a) There is no action, proceeding, investigation, or inquiry
pending or, to the best of Blackfoot's knowledge, threatened
(i) against or affecting any of Blackfoot's assets or business
that, if determined adversely to Blackfoot, would result in a
Material Effect or (ii) that questions this Agreement or any
action contemplated by this Agreement or in connection with
the Share Exchange.
(b) Blackfoot has no knowledge of any state of facts or of the
occurrence or nonoccurrence of any event or group of related
events; that should reasonably cause Blackfoot to determine
Share Exchange Agreement - Page 14
that there exists any basis for any material claim against
Blackfoot for any of the matters described in paragraph (a)
above.
4.15 CONTRACTS AND OTHER AGREEMENTS. SECTION 4.15 to the Blackfoot
Disclosure Schedule contains a complete and correct list as of the date
hereof of all material agreements, contracts, and commitments (and all
amendments thereto), written or oral, to which Blackfoot is a party or
by which any of its properties is bound. Blackfoot has made available
to the Tower Tech Shareholders complete and correct copies of all
material written agreements, contracts, and commitments, together with
all amendments thereto, and accurate (in all material respects)
descriptions of all material oral agreements. Such agreements,
contracts, and commitments are in full force and effect, and, to the
best of Blackfoot's knowledge, all other parties to such agreements,
contracts, and commitments have performed all obligations required to
be performed by them to date thereunder in all material respects and
are not in default thereunder in any material respect.
4.16 COMPENSATION ARRANGEMENTS; OFFICERS, DIRECTORS AND EMPLOYEES. Blackfoot
does not pay any compensation to any of its officers and directors and
has no employees. Blackfoot has not made a commitment or agreement
(verbally or in writing) to pay any compensation to such persons.
4.17 ERISA. There are no Plans maintained for the benefit of, or covering,
any employee, former employee, independent contractor or former
independent contractor of Blackfoot or their dependents or their
beneficiaries, or otherwise, now or heretofore contributed to by
Blackfoot and no such Plan is or has ever been subject to ERISA.
4.18 OPERATIONS. Except as expressly authorized by this Agreement, or except
as set forth in SECTION 4.18 to the Blackfoot Disclosure Schedule,
since the date of the latest Blackfoot Financial Statements, Blackfoot
has not:
(a) amended its Articles of Incorporation or By-Laws or merged
with or into or consolidated with any other entity, or changed
or agreed to rearrange in any manner the character of the
business of Blackfoot;
(b) issued, sold or purchased options or rights to subscribe to,
or entered into any contracts or commitments to issue, sell or
purchase, any shares of its capital stock or other equity
interests;
(c) entered into, amended or terminated any (i) employment
agreement or collective bargaining agreement, (ii) adopted,
entered into or amended any arrangement which is, or would be,
a Plan or (iii) made any change in any actuarial methods or
assumptions used in funding any Plan or in the assumptions or
factors used in determining benefit equivalencies thereunder;
(d) issued any note, bond or other debt security, created,
incurred or assumed any indebtedness for borrowed money other
than in the ordinary course of business in connection with
Share Exchange Agreement - Page 15
trade payables, or guaranteed any indebtedness for borrowed
money or any capitalized lease obligation;
(e) declared, set aside or paid any dividends or declared or made
any other distributions of any kind to the shareholders, or
made any direct or indirect redemption, retirement, purchase
or other acquisition of any shares of its capital stock or
other equity interests;
(f) knowingly waived any right of material value to the business
of Blackfoot;
(g) made any change in its accounting methods or practices or made
any changes in depreciation or amortization policies or rates
adopted by it or made any material write-down of inventory or
material write-off as uncorrectable of accounts receivable;
(h) made any wage or salary increase or other compensation payable
or to become payable or bonus, or increase in any other direct
or indirect compensation, for or to any of its officers,
directors, employees, consultants, agents or other
representatives, or any accrual for or commitment or agreement
to make or pay the same, other than increases made in the
ordinary course consistent with past practice;
(i) entered into any transactions with any of its affiliates,
shareholders, officers, directors, employees, consultants,
agents or other representatives (other than employment
arrangements made in the ordinary course of business
consistent with past practice), or any affiliate of any
shareholder, officer, director, consultant, employee, agent or
other representative;
(j) made any payment or commitment to pay any severance or
termination pay to any person or any of its officers,
directors, employees, consultants, agents or other
representatives, other than payments or commitments to pay
such persons or their officers, directors, employees in the
ordinary course of business;
(k) except in the ordinary course of business, (i) entered into
any lease (as lessor or lessee), (ii) sold, abandoned or made
any other disposition of any of its assets or properties other
than in the ordinary course of business consistent with past
practice, (iii) granted or suffered any Lien on any of its
assets or properties other than sales of inventory in the
ordinary course of business, or (iv) entered into or amended
any material contract or other agreement to which it is a
party, or by or to which it or its assets or properties are
bound or subject, or pursuant to which it agrees to indemnify
any person or to refrain from competing with any person, in
each case or type required to be disclosed pursuant to SECTION
4.14 hereof;
(l) except in the ordinary course of business, incurred or assumed
any debt, obligation or liability (whether absolute or
contingent and whether or not currently due and payable);
Share Exchange Agreement - Page 16
(m) except for inventory or equipment acquired in the ordinary
course of business, made any acquisition of all or any part of
the assets, properties, capital stock or business of any other
person;
(n) except in the ordinary course of business, paid, directly or
indirectly, any of its Liabilities before the same became due
in accordance with their terms or otherwise than in the
ordinary course of business, except to obtain the benefit of
discounts available for early payment;
(o) except in the ordinary course of business, created, incurred
or assumed any indebtedness for borrowed money, or guaranteed
any indebtedness for borrowed money or any capitalized lease
obligation, in each case in excess of $5,000 individually or
in the aggregate;
(p) except in the ordinary course of business, made any capital
expenditures or commitments for capital expenditures in
aggregate amount exceeding $5,000; or
(q) except in the ordinary course of business, terminated, failed
to renew, amended or entered into any contract or other
agreement of a type required to be disclosed pursuant to
SECTION 4.15.
4.19 BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out by the Tower
Tech Shareholders directly with Blackfoot without the intervention of
any other person on behalf of the Tower Tech Shareholders in such
manner as to give rise to any valid claim by any person against the
Tower Tech Shareholders or Blackfoot for a finder's fee, brokerage
commission or similar payment.
4.20 APPROVAL OF SHARE EXCHANGE. The board of directors of Blackfoot has
approved the Share Exchange without reservation or qualification.
4.21 SEC REPORTING STATUS. Blackfoot filed a registration statement under
Section 12(g) of the Securities Exchange Act of 1934 (the "EXCHANGE
ACT") on August 11, 2000. Since that October 10, 2000, Blackfoot has
filed with the Securities and Exchange Commission ("SEC") all reports
required to be filed pursuant to Section 13 of the Exchange Act. It has
not filed a certification on Form 15 pursuant to Rule 12h-3 of the
Exchange Act.
4.22 INVESTMENT COMPANY. Blackfoot is not an investment company within
the meaning of Section 3 of the Investment Company Act.
4.23 OTC BULLETIN BOARD STATUS. The Blackfoot Common Stock is approved for
trading on the OTC Bulletin Board.
4.24 DISCLOSURE. To the knowledge of Blackfoot, neither this Agreement, nor
any Schedule or Exhibit to this Agreement, contains an untrue statement
of a material fact or omits a material fact necessary to make the
statements contained herein or therein not misleading.
Share Exchange Agreement - Page 17
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS. At or prior to the Closing
Date, Blackfoot shall be entitled to make such investigation of the
assets, properties, business and operations of Tower Tech and such
examination of the books, records, Tax Returns, financial condition and
operations of Tower Tech as Blackfoot may wish. Any such investigation
and examination shall be conducted at reasonable times and under
reasonable circumstances and Tower Tech shall cooperate fully therein.
In order that Blackfoot may have full opportunity to make such a
business, accounting and legal review, examination or investigation as
they may wish of the business and affairs of Tower Tech, Tower Tech
shall furnish to Blackfoot during such period all such information and
copies of such documents concerning the affairs of Tower Tech as
Blackfoot may reasonably request and cause Tower Tech's officers,
employees, consultants, agents, accountants and attorneys to cooperate
fully with Blackfoot of all material facts affecting the financial
condition and business operations of Tower Tech. Until the Closing and
if the Closing shall not occur, thereafter, Blackfoot and its
affiliates shall keep confidential and shall not use in any manner
inconsistent with the transactions contemplated by this Agreement and
after termination of this Agreement, Blackfoot and its affiliates shall
not disclose, nor use for their own benefit, any information or
documents obtained from Tower Tech concerning its assets, properties,
business and operations, unless (a) readily ascertainable from public
or published information, or trade sources, (b) received from a third
party not under an obligation to Tower Tech to keep such information
confidential or (c) required by any Law or Order. If this transaction
does not close for any reason, Blackfoot and its affiliates shall
return or destroy all such confidential information and compilations
thereof as is practicable, and shall certify such destruction or return
to Tower Tech.
5.2 CONDUCT OF BUSINESS. From the date hereof through the Closing Date, the
Tower Tech Shareholders shall cause the business of Tower Tech to be
conducted in the ordinary course in the same manner as it has been
conducted since it inception. The Tower Tech Shareholders covenant
that, except with the prior written consent of Blackfoot, which consent
shall not be unreasonably withheld, Tower Tech will not:
(a) Do any of the restricted acts set forth in SECTION 3.20
hereof, or enter into any agreement of a nature set forth in
SECTION 3.16 hereof; or
(b) Enter into any transaction other than in the ordinary course
of business.
5.3 PRESERVATION OF BUSINESS. From the date hereof through the Closing
Date, the Tower Tech Shareholders shall cause Tower Tech to use
commercially reasonable efforts to (i) preserve intact the business,
assets, properties and organizations of Tower Tech, (ii) keep available
the services of the present officers, employees, consultants and agents
of Tower Tech; and (iii) maintain the present suppliers and customers
and preserve the goodwill of Tower Tech.
5.4 ADVICE OF CHANGES. The Tower Tech Shareholders will promptly advise
Blackfoot in writing from time to time prior to the Closing with
respect to any matter hereafter arising and known to them that, if
Share Exchange Agreement - Page 18
existing or occurring at the date of this Agreement, would have been
required to be set forth or described in the Tower Tech Shareholder
Disclosure Schedule or would have resulted in any representation of the
Tower Tech Shareholders in this Agreement being untrue. Blackfoot will
promptly advise the Tower Tech Shareholders in writing from time to
time prior to the Closing with respect to any matter hereafter arising
and known to it that, if existing or occurring at the date of this
Agreement, would have been required to be set forth or described in the
Blackfoot Disclosure Schedule or would have resulted in any
representation of Blackfoot in this Agreement being untrue in any
material respect.
5.5 OTC BULLETIN BOARD. Blackfoot will use its best efforts to maintain
the listing on the OTC Bulletin Board of the Blackfoot Common Stock.
5.6 SEC REPORTS. Blackfoot shall file with the SEC all reports that are
required to be filed by the Exchange Act and the rules and regulations
promulgated thereunder.
5.7 OTHER AGREEMENTS. The Tower Tech Shareholders and Blackfoot agree to
take, or cause to be taken, all actions and to do, or cause to be done,
all things reasonably necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions contemplated
by this Agreement, including, without limitation, the obtaining of all
necessary waivers, consents and approvals and the effecting of all
necessary registrations and filings, including, but not limited to,
submissions of information requested by Governmental or Regulatory
Bodies and any other persons required to be obtained by them for the
consummation of the closing and the continuance in full force and
effect of the permits, contracts and other agreements set forth on the
Schedules to this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BLACKFOOT TO COMPLETE THE
CLOSING. The obligations of Blackfoot to enter into and complete the
Closing are subject to the fulfillment of the following conditions, any
one or more of which may be waived by Blackfoot:
(a) (i) All of the terms, covenants, and conditions of this
Agreement to be complied with or performed by the Tower Tech
Shareholders at or before the Closing shall have been duly
complied with and performed in all material respects, (ii) the
representations and warranties of the Tower Tech Shareholders
set forth in Article III shall be true in all material
respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made
on and as of the Closing, and (iii) Blackfoot shall have
received a certificate to such effect from the Tower Tech
Shareholders.
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental
or Regulatory Bodies required to be obtained by Tower Tech or
the Tower Tech Shareholders in order to permit the
transactions contemplated by this Agreement to be consummated
in accordance with agreements and court orders applicable to
Tower Tech or the Tower Tech Shareholders and applicable
Share Exchange Agreement - Page 19
governmental laws, rules, regulations and agreements shall
have been obtained and any waiting period thereunder shall
have expired or been terminated, and Blackfoot shall have
received a certificate from the Tower Tech Shareholders to
such effect.
(c) All actions, proceedings, instruments, and documents in
connection with the consummation of the transactions
contemplated by this Agreement, including the forms of all
documents, legal matters, opinions, and procedures in
connection therewith, shall have been approved in form and
substance by counsel for Blackfoot, which approval shall not
be unreasonably withheld.
(d) The Tower Tech Shareholders shall have furnished such
certificates to evidence compliance with the conditions set
forth in this Article, as may be reasonably requested by
Blackfoot or its counsel.
(e) Tower Tech shall not have suffered any Material Effect.
(f) No material information or data provided or made available to
Blackfoot by or on behalf of Tower Tech shall be incorrect in
any material respect.
(g) No investigation and no suit, action, or proceeding before any
court or any governmental or regulatory authority shall be
pending or threatened by any state or federal governmental or
regulatory authority, against Tower Tech or any of its
affiliates, associates, officers, or directors seeking to
restrain, prevent, or change in any material respect the
transactions contemplated hereby or seeking damages in
connection with such transactions that are material to Tower
Tech.
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE TOWER TECH SHAREHOLDERS
TO COMPLETE THE CLOSING. The obligations of the Tower Tech Shareholders
to enter into and complete the Closing are subject to the fulfillment
on or prior to the Closing Date, of the following conditions, any one
or more of which may be waived by the Tower Tech Shareholders:
(a) (i) All of the terms, covenants, and conditions of this
Agreement to be complied with or performed by Blackfoot at or
before the Closing shall have been duly complied with and
performed in all material respects, (ii) the representations
and warranties of Blackfoot set for in Article IV shall be
true in all material respects on and as of the Closing Date
with the same force and effect as if such representations and
warranties had been made on and as of the Closing, and (iii)
the Tower Tech Shareholders shall have received a certificate
to such effect from Blackfoot.
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental
or Regulatory Bodies required to be obtained by Blackfoot in
order to permit the transactions contemplated by this
Agreement to be consummated in accordance with agreements and
court orders applicable to Blackfoot and applicable
governmental laws, rules, regulations and agreements shall
have been obtained and any waiting period thereunder shall
Share Exchange Agreement - Page 20
have expired or been terminated, and the Tower Tech
Shareholders shall have received a certificate from Blackfoot
to such effect.
(c) All actions, proceedings, instruments, and documents in
connection with the consummation of the transactions
contemplated by this Agreement, including the forms of all
documents, legal matters, opinions, and procedures in
connection therewith, shall have been approved in form and
substance by counsel for the Tower Tech Shareholders, which
approval shall not be unreasonably withheld.
(d) Blackfoot shall have furnished such certificates to evidence
compliance with the conditions set forth in this Article, as
may be reasonably requested by the Tower Tech Shareholders or
their counsel.
(e) Blackfoot shall not have suffered any Material Effect.
(f) No material information or data provided or made available to
the Tower Tech Shareholders by or on behalf of Blackfoot shall
be incorrect in any material respect.
(g) No investigation and no suit, action, or proceeding before any
court or any governmental or regulatory authority shall be
pending or threatened by any state or federal governmental or
regulatory authority, against Blackfoot or any of its
affiliates, associates, officers, or directors seeking to
restrain, prevent, or change in any material respect the
transactions contemplated hereby or seeking damages in
connection with such transactions that are material to
Blackfoot.
(h) The Blackfoot Common Stock shall be approved for listing on
the OTC Bulletin Board.
(i) Blackfoot shall satisfy (i) the filing requirements set forth
in Section 13 of the Exchange Act and (ii) the requirements of
Rule 15c2-11 as promulgated by the SEC under the Exchange Act.
(j) At Closing, all but one member of Blackfoot's Board of
Directors shall resign, whereupon three persons designated by
the Tower Tech Shareholders shall be elected by the remaining
director of Blackfoot to fill the vacancies. The remaining
director of Blackfoot shall then resign. In order to effect
such change in the composition of Blackfoot's Board of
Directors, Blackfoot, at or prior to Closing shall have
complied with the requirements of Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder; PROVIDED,
that Blackfoot's obligation to effect such -------- compliance
shall be contingent upon the Tower Tech Shareholders'
furnishing to Blackfoot such information with respect to their
nominees to Blackfoot's Board of Directors as is required by
the applicable provisions of the Exchange Act and the rules
and regulations promulgated thereunder for compliance with
Section 14(f) thereof.
(k) Blackfoot shall have changed its name to "Tower Tech Systems,
Inc."
Share Exchange Agreement - Page 21
(l) Blackfoot shall have filed Articles of Amendment to its
Articles of Incorporation with the Secretary of State of the
State of Nevada to increase its authorized capital to
100,000,000 shares of common stock, $0.001 par value, and
10,000,000 shares of preferred stock, $0.001 par value.
ARTICLE VII
POST-CLOSING COVENANTS
The parties covenant to take the following actions after the Closing Date:
7.1 FURTHER INFORMATION. Following the Closing, each party will afford to
the other party, its counsel and its accountants, during normal
business hours, reasonable access to the books, records and other data
of Tower Tech or Blackfoot, as the case may be, relating to the
business of Tower Tech or Blackfoot in their possession with respect to
periods prior to the Closing and the right to make copies and extracts
therefrom, to the extent that such access may be reasonably required by
the requesting party (a) to facilitate the investigation, litigation
and final disposition of any claims which may have been or may be made
against any party or its affiliates and (b) for any other reasonable
business purpose.
7.2 RECORD RETENTION. Each party agrees that for a period of not less than
five years following the Closing Date, such party shall not destroy or
otherwise dispose of any of the Books and Records of Tower Tech or
Blackfoot relating to the business of Tower Tech or Blackfoot in his or
its possession with respect to periods prior to the Closing Date. Each
party shall have the right to destroy all or part of such Books and
Records after the fifth anniversary of the Closing Date or, at an
earlier time by giving each other party hereto 30 days prior written
notice of such intended disposition and by offering to deliver to the
other party or parties, at the other party's or parties' expense,
custody of such Books and Records as such party may intend to destroy.
7.3 POST-CLOSING ASSISTANCE. The Tower Tech Shareholders on the one hand,
and Blackfoot, on the other hand, will provide each other with such
assistance as may reasonably be requested in connection with the
preparation of any Tax Return, any audit or other examination by any
taxing authority, or any judicial or administrative proceedings
relating to liability for Taxes, and each will retain and provide the
requesting party with any records or information that may be reasonably
relevant to such return, audit or examination, proceedings or
determination. The party requesting assistance shall reimburse the
other party for reasonable out-of-pocket expenses incurred in providing
such assistance. Any information obtained pursuant to this SECTION 7.3
or pursuant to any other Section hereof providing for the sharing of
information or the review of any Tax Return or other schedule relating
to Taxes shall be kept confidential by the parties hereto.
7.4 SEC REPORTING. With a view to making available the benefits of certain
rules and regulations of the SEC which may at any time permit the sale
of the Blackfoot Common Stock to the public without registration, from
and after the Closing, the new management of Blackfoot will:
Share Exchange Agreement - Page 22
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act,
at all times; and
(b) file with the SEC in a timely manner all reports and other
documents required of Blackfoot under the Exchange Act.
ARTICLE VIII
TERMINATION OF AGREEMENT
8.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing as follows:
(a) by mutual written consent of Blackfoot and the Tower Tech
Shareholders;
(b) by Blackfoot on the one hand, or by all of the Tower Tech
Shareholders, on the other hand, by written notice to the
other party hereto, if the Closing shall not have occurred on
or prior to the close of business on December 31, 2005 (unless
such event has been caused by a breach of this Agreement by
the party seeking such termination);
(c) by Blackfoot or by all of the Tower Tech Shareholders if a
Governmental or Regulatory Body has permanently enjoined or
prohibited consummation of the Share Exchange and such court
or government action is final and nonappealable;
(d) by Blackfoot if the Tower Tech Shareholders have failed to
comply in any material respect with any of its covenants or
agreements under this Agreement that are required to be
complied with prior to the date of such termination; or
(e) by the Tower Tech Shareholders if Blackfoot has failed to
comply in any material respect with any of its covenants or
agreements under this Agreement that are required to be
complied with prior to the date of such termination.
8.2 SURVIVAL AFTER TERMINATION. If this Agreement is terminated pursuant to
Section 8.1, (a) this Agreement shall become null and void and of no
further force and effect, except for the provisions of SECTION 5.1
relating to the obligation to keep confidential certain information and
(b) there shall be no liability on the part of Tower Tech or Blackfoot
or their respective affiliates.
ARTICLE IX
MISCELLANEOUS
9.1 EXPENSES. Each party shall be solely responsible for its own legal and
accounting fees in connection with the Share Exchange.
Share Exchange Agreement - Page 23
9.2 FURTHER ASSURANCES. At any time and from time to time after the Closing
Date at the request of Blackfoot, and without further consideration,
the Tower Tech Shareholders will execute and deliver such other
instruments of sale, transfer, conveyance, assignment and confirmation
and take such other action as Blackfoot may reasonably deem necessary
or desirable in order to transfer, convey and assign the Shares to
Blackfoot and to assist Blackfoot in exercising all rights with respect
thereto. The parties shall use their best efforts to fulfill or obtain
the fulfillment of the conditions to the Closing, including, without
limitation, the execution and delivery of any document or other papers,
the execution and delivery of which are conditions precedent to the
Closing.
9.3 NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
shall be given personally, sent by facsimile transmission or sent by
prepaid air courier or certified or express mail, postage prepaid. Any
such notice shall be deemed to have been given (a) when received, if
delivered in person, sent by facsimile transmission and confirmed in
writing within three (3) business days thereafter or sent by prepaid
air courier or (b) three (3) business days following the mailing
thereof, if mailed by certified first class mail, postage prepaid,
return receipt requested, in any such case as follows (or to such other
address or addresses as a party may have advised the other in the
manner provided in this Section 9.3):
If to the Tower Tech Shareholders:
Christopher C. Allie, President
980 Maritime Drive, Suite 6
Manitowoc, WI 54220
and
Kummer, Lambert & Fox, LLP
927A South 8th Street
Manitowoc, WI 54221-1180
Attention: Terence P. Fox
with a copy to:
Dill Dill Carr Stonbraker & Hutchings, P.C.
455 Sherman Street, Suite 300
Denver, Colorado 80203
Attention: Fay M. Matsukage, Esq.
If to Blackfoot:
Blackfoot Enterprises, Inc.
6767 W. Tropicana Avenue, Suite 207
Las Vegas, Nevada 89103
Attention: Johann Rath, President
Share Exchange Agreement - Page 24
with a copy to:
Ronald J. Stauber, Esq.
1880 Century Park East, Suite 300
Los Angeles, California 90067
9.4 ARBITRATION. Any dispute, controversy, or claim arising out of,
relating to, or in connection with, this Agreement or the agreements or
transactions contemplated by this Agreement shall be finally settled by
binding arbitration. The arbitration shall be conducted and the
arbitrator chosen in accordance with the rule of the American
Arbitration Association in effect at the time of the arbitration,
except as they may be modified herein or by mutual agreement of
Blackfoot and the Tower Tech Shareholders. In connection with any such
arbitration, each party shall be afforded the opportunity to conduct
discovery in accordance with the Federal Rules of Civil Procedure.
(a) The seat of the arbitration shall be in Manitowoc County,
Wisconsin, and will follow the format known as "Baseball
Arbitration". Each of the Tower Tech Shareholders and
Blackfoot hereby irrevocably submits to the jurisdiction of
the arbitrator in Manitowoc County, Wisconsin, and waives any
defense in an arbitration based upon any claim that such party
is not subject personally to the jurisdiction of such
arbitrator, that such arbitration is brought in an
inconvenient format, or that such venue is improper.
(b) The arbitral award shall be in writing and shall be final and
binding on each of the parties to this Agreement. The award
may include an award of costs, including reasonable attorneys'
fees and disbursements. Judgment upon the award may be entered
by any court having jurisdiction thereof or having
jurisdiction over the parties or their assets. Each of the
Tower Tech Shareholders and Blackfoot acknowledges and agrees
that by agreeing to these arbitration provisions each of the
parties hereto is waiving any right that such party may have
to a jury trial with respect to the resolution of any dispute
under this Agreement or the agreements or transactions
contemplated hereby.
9.5 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be made without
advance approval thereof by Blackfoot and the Tower Tech Shareholders
except as may be required by applicable law.
9.6 ENTIRE AGREEMENT. This Agreement (including the Exhibits and Schedules)
and the agreements, certificates and other documents delivered pursuant
to this Agreement contain the entire agreement among the parties with
respect to the transactions described herein, and supersede all prior
agreements, written or oral, with respect thereto.
9.7 WAIVERS AND AMENDMENTS. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only
by a written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof
Share Exchange Agreement - Page 25
9.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada without regard to
principles of conflicts of law.
9.9 BINDING EFFECT, NO ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable by any party hereto
without the prior written consent of the other parties hereto except by
operation of law and any other purported assignment shall be null and
void.
9.10 COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of
a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto.
9.11 EXHIBITS AND SCHEDULES. The Exhibits and Schedules are a part of this
Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall
otherwise require.
9.12 EFFECT OF DISCLOSURE ON SCHEDULES. Any item disclosed on any Schedule
to this Agreement shall only be deemed to be disclosed in connection
with (a) the specific representation and warranty to which such
Schedule is expressly referenced, (b) any specific representation and
warranty which expressly cross-references such Schedule and (c) any
specific representation and warranty to which any other Schedule to
this Agreement is expressly referenced if such other Schedule expressly
cross-references such Schedule.
9.13 HEADINGS. The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
9.14 SEVERABILITY OF PROVISIONS. If any provision or any portion of any
provision of this Agreement or the application of such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the
remaining provisions of this Agreement, or the application of such
provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BLACKFOOT: TOWER TECH:
BLACKFOOT ENTERPRISES, INC. TOWER TECH SYSTEMS, INC.
By: /S/ JOHANN RATH By: /S/ CHRISTOPHER ALLIE
----------------------------- -------------------------------
Name: Johann Rath Name: Christopher Allie
Title: President Title: President
Share Exchange Agreement - Page 26
TOWER TECH SHAREHOLDERS:
/S/ RAYMOND L. BRICKNER /S/ CHRISTOPHER C. ALLIE
- ---------------------------------------- -------------------------
Raymond L. Brickner Alex C. Allie
/S/ DANIEL P. WERGIN /S/ CHRISTOPHER C. ALLIE
- ----------------------------------------- ------------------------
Daniel P. Wergin Christopher C. Allie
/S/ PETER C. ALLIE /S/ TERENCE P. FOX
- ----------------------------------------- ------------------
Peter C. Allie Terence P. Fox
Integritas, Inc.
/S/ STACEY C. CULLIGAN By: /S/ JAMES HUNTER
- ----------------------------------------- ----------------------
Stacy C. Culligan Name: James Hunter
Title: Vice President
Wergin Family Dynasty Trust 2005 Brickner Family Limited Partnership
By: /S/ TERENCE P. FOX By: /S/ RAYMOND L. BRICKNER III
-------------------------------------- ---------------------------------
Name: Terence P. Fox Name: Raymond L. Brickner III
Title: Trustee Title: General Partner
Terence P. Fox
Paula L. Fox
Irrevocable Trust 2005
By: /S/ DANIEL P. WERGIN
-------------------------------------
Name: Daniel P. Wergin
Title: Trustee
Share Exchange Agreement - Page 27