EXHIBIT 10.17
PLAN AND AGREEMENT OF REORGANIZATION
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UNDER I.R.C. 368(A)(1)(B)
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CONCENTRAX, INC.,
AND
JEREMY WESSELS, EDWARD WADSWORTH AND JOSH CHOI,
COLLECTIVELY,
THE SHAREHOLDERS OF
PANGEA DESIGN, INC.
THIS PLAN AND AGREEMENT OF REORGANIZATION, dated this 30th day of August 2002 by
and among:
CONCENTRAX, INC., a Nevada business corporation having its principal business
office located at 817 Oak Glen, Houston, Texas (hereinafter sometimes referred
to as "the COMPANY" "CONCENTRAX" or "CTRX");
JEREMY WESSELS, EDWARD WADSWORTH AND JOSH CHOI, THE ONLY SHAREHOLDERS OF PANGEA
DESIGN, INC. (hereinafter sometimes referred to as "the PANGEA SHAREHOLDERS or
the "selling PANGEA SHAREHODLERS"). Pangea Design, Inc. is a Texas business
corporation having its principal business office located at 2400 August Place,
Ste. 425, Houston, Texas 77057.
WITNESSETH THAT:
WHEREAS, CONCENTRAX desires to acquire from the Pangea Shareholders 100%
of the issued and outstanding capital stock of PANGEA DESIGN in exchange for
800,000 shares of the Common Stock of CONCENTRAX in a transaction qualifying as
a tax-free reorganization;
WHEREAS, CONCENTRAX, by its Nevada Articles of Incorporation, which
Articles were issued on January 22, 2001, is authorized to issue 10,000,000
shares of Preferred Stock having a par value of $.001 per share, none of which
are issued and outstanding, and 50,000,000 shares of Common Stock having a par
value of $.001 per share, 12,645,450 of which are issued and outstanding; and
WHEREAS, PANGEA DESIGN, by its Articles of Incorporation, which was issued
on April 20, 2000, is authorized to issue one hundred thousand (100,000) shares
of Common Stock with no par value, of which 100,000 shares are issued and
outstanding;
NOW, THEREFORE, CONCENTRAX, PANGEA DESIGN and the PANGEA SHAREHOLDERS, in
consideration of the mutual covenants, agreements and provisions hereinafter
contained, do hereby prescribe the terms and conditions of the reorganization of
CONCENTRAX and PANGEA DESIGN and the mode of carrying the same into effect as
follows:
ARTICLE I
THE REORGANIZATION/EXCHANGE
1. PLAN OF REORGANIZATION. The PANGEA SHAREHOLDERS are the owners of
100,000 of the issued and outstanding capital stock of PANGEA DESIGN, which
100,000 shares constitute 100% of the total issued and outstanding shares of
Common Stock of PANGEA DESIGN (such 100,000 shares being referred to herein as
the "Acquired Shares"). It is the intention of the parties that all of the
Acquired Shares be acquired by CONCENTRAX in exchange solely for its voting
stock in a reorganization qualifying under 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended. As part of the reorganization, Mr. Wessels
shall be appointed to the Board of Directors, and Mr. Wessels, Wadsworth and
Choi shall become employees of Concentrax, Inc.
2. APPOINTMENT OF ESCROW AGENT AND EXCHANGE OF SHARES.
(a) CONCENTRAX AND the PANGEA SHAREHODLERS hereby appoint and designate John
Karl Buche, Esq., with offices at 2400 Augusta, Suite 350, Houston, Texas 77057
as "ESCROW AGENT" hereunder for the purpose set forth herein and ESCROW AGENT
accepts such appointment. [or other designated attorney]
(b) CONCENTRAX and the PANGEA SHAREHOLDERS agree that at Closing, all 100,000
shares of PANGEA DESIGN shall be exchanged for 800,000 shares of CONCENTRAX
Common Stock to be immediately issued (meaning that certificates will be cut,
but not all will be delivered) at an exchange rate of eight (8) CONCENTRAX, INC.
shares for each PANGEA DESIGN share (8:1); 500,000 shares will be delivered
immediately, and the remaining 300,000 CONCENTRAX, INC. shares will remain in
ESCROW with John Karl Buche, Esq., the appointed Escrow Agent, and shall be
released over the next 6 months: 200,000 shares released on August 30, 2003,
and 100,000 shares released on December 31, 2003. The following numbers of
CONCENTRAX shares will, at Closing, be delivered to the individual PANGEA
SHAREHOLDERS in exchange for their PANGEA DESIGN shares, as follows.
No. of Shares No. of Shares
of PANGEA DESIGN of Concentrax
SHAREHOLDERS Exchanged to be Issued
- ------------ ------------------- ---------------
Jeremy Weasels 80,000 640,000(1)
Edward Wadsworth 10,000 80,000(2)
Josh Choi 10,000 80,000(3)
Total 100,000 800,000(4)
(1) (Wessels) 400,000 immediately upon closing; 160,000 on August 30, 2003, and
80,000 on December 31, 2003
(2) (Wadsworth) 50,000 immediately upon closing; 25,000 on August 30, 2003, and
5,000 on December 31, 2003
(3) (Choi) 50,000 immediately upon closing; 25,000 on August 30, 2003, and 5,000
on December 31, 2003
(4) A total of 800,000 will be issued; 500,000 will be immediately delivered to
the selling PANGEA SHAREHOLDERS, and the remaining 300,00 will be escrowed in
accordance with this agreement.
3. DELIVERY OF SHARES. At the Closing, each SELLING PANGEA DESIGN
SHAREHOLDER shall deliver his or her certificates for all of the issued and
outstanding shares of PANGEA DESIGN owned by such shareholder duly endorsed with
signatures medallion guaranteed so as to make CONCENTRAX the sole owner thereof,
free and clear of all claims and encumbrances. Simultaneously at the Closing,
CONCENTRAX shall issue and deliver to the selling PANGEA SHAREHOLDERS
certificates representing all of the CONCENTRAX shares to be issued in exchange
for the PANGEA DESIGN shares, in such names, denominations and amounts as the
SELLING PANGEA DESIGN SHAREHOLDERS shall have requested. In the alternative,
CONCENTRAX may deliver to the selling PANGEA SHAREHODLERS duly executed
instructions to its Transfer Agent for the immediate issuance of such shares.
The 300,000 shares to be escrowed shall be presented at the closing and
immediately placed with the ESCROW AGENT. Time is of the essence.
4. INVESTMENT REPRESENTATIONS. Each SELLING PANGEA DESIGN SHAREHOLDER
acknowledges, agrees and represents that:
(a) He or she has been advised that none of the shares of CONCENTRAX being
acquired by him or her hereunder have been registered under the Securities Act
of 1933 (the "1933 Act").
(b) All of the shares of CONCENTRAX being acquired by him or her hereunder
are being, and will be, acquired and held primarily for investment, and not
merely for resale or distribution to the public and not for the purpose of
effecting or causing to be effected a public offering of such securities ,
however, shares may be sold as otherwise permitted in accordance with the 1933
Act and the Rules and Regulations of the Securities and Exchange Commission
("SEC") promulgated thereunder and any applicable Rule 144 restrictions on
transfers.
(c) He or she has been advised and is aware of the fact, that by reason of
the foregoing investment representations and restrictions upon transfer: (i) if
Rule 144 of the Rules and Regulations promulgated by the SEC is applicable to
any future routine sales of any such securities, such sales can be made only in
limited amounts in accordance with the terms and conditions of that Rule; (ii)
in the case of securities to which that Rule is not applicable, compliance with
some applicable registration exemption, if any be available, will be required;
(iii) all of the CONCENTRAX shares to be acquired by the selling PANGEA
SHAREHOLDERS will bear a legend restricting transfer thereof; and (iv) the
Transfer Agent of the CONCENTRAX'S Common Stock will be given "stop-transfer"
instructions so as to prevent any illegal transfer of such shares.
(d) He or she has relied only and exclusively upon the representations of
CONCENTRAX contained herein and his or her own investigation into CONCENTRAX and
its financial condition for purposes of deciding to enter into and close the
transaction contemplated by this Agreement and to accept shares of CONCENTRAX in
exchange for his or her shares of PANGEA DESIGN. No representation or statements
of CONCENTRAX shall survive the Closing with the exception of the
representations and warranties contained in this Agreement.
5. CLOSING.
(a) Closing shall take place at 10:00 a.m. on August 30, 2002 at the offices of
Pangea Design, Inc. or at such other time and place as the parties may mutually
select.
(b) In addition to the share certificates to be delivered to CONCENTRAX
pursuant to Paragraph 3 above, PANGEA DESIGN shall deliver or cause to be
delivered to CONCENTRAX the following documents at Closing:
(1) Certified copy of the Minutes of the Meeting of the Board of Directors of
PANGEA DESIGN ratifying and approving this Agreement and the Closing
thereof;
(2) Certificate of good standing reflecting that PANGEA DESIGN is a corporation
in good standing in the state of its incorporation;
(3) Audited Financial Statements, if they exist, for the year ended December
31, 2001 and an unaudited interim financial statement as prepared by
Management to cover the period of inception (April 20, 2000) through
December 31, 2000. Additionally, financial reports prepared by Management
for the first two quarters of 2002 should be included.
(4) A certificate from each of the selling PANGEA SHAREHOLDERS updating the
representations and warranties included in this agreement, as if made on
the Closing date; and
(5) Any and all other documents which may be reasonably requested by CONCENTRAX
to effect and close this transaction.
(c) In addition to the share certificates or Transfer Agent instructions
to be delivered to the selling PANGEA SHAREHOLDRS pursuant to Paragraph 3 above,
CONCENTRAX shall deliver to PANGEA DESIGN the following documents at Closing:
(1) Certified resolution of the Board of Directors of CONCENTRAX ratifying this
Agreement and the Closing thereof and expressly authorizing the issuance of
shares as required by this Agreement;
(2) A certificate of good standing of CONCENTRAX reflecting that the COMPANY is
in good standing under the laws of the state of its incorporation;
(3) All audited and unaudited Financial Statements filed on EDGAR;
(4) A certificate from the President and Secretary of CONCENTRAX confirming the
representations and warranties made by CONCENTRAX as if made on the Closing
date; and
(5) Any and all other documents as may be required by the selling PANGEA
SHAREHOLDERS to close this Agreement.
(d) Employment Agreements. Fully executed employment Agreements will be
provided by Concentrax, Inc. upon closing for Jeremy Wessels, Edward Wadsworth
and Josh Choi, each of whom shall be hired immediately upon closing. Attached as
Exhibit "A" are the unexecuted Employment Agreements.
6. OFFICERS AND DIRECTORS. It is the intent of the parties that
immediately after the Closing, CONCENTRAX shall have a Board of Directors
consisting of Messrs. Gifford, Looney, Gonzalez, Jaramillo, Smith and Wessels.
In other words, the existing Board of Directors of CONCENTRAX shall continue,
and shall immediately appoint Mr. Wessels to the Board.
ARTICLE II
CONDITIONS PRECEDENT
1. Between the date hereof and the Closing CONCENTRAX and its
representatives shall have such reasonable access during normal business hours
to the properties, offices, records and books of account of PANGEA DESIGN as
will not unreasonably interfere with the business and operations of PANGEA
DESIGN for the purposes of investigating the financial position, assets,
liabilities and all other matters relating to the business of PANGEA DESIGN and
the correctness of PANGEA DESIGN's representations and warranties and the
fulfillment of the covenants and conditions of PANGEA DESIGN as required in
this Agreement.
2. Between the date hereof and the Closing the selling PANGEA SHAREHOLDERS and
their representatives shall have such reasonable access during normal business
hours to the properties, offices, records and books of account of CONCENTRAX as
will not unreasonably interfere with the business and operations of CONCENTRAX,
for the purposes of investigating the financial position, assets, liabilities
and all other matters relating to the business of CONCENTRAX and the correctness
of CONCENTRAX's representations and warranties and the fulfillment of the
covenants and conditions of CONCENTRAX as required in this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF
CONCENTRAX
CONCENTRAX, intending the selling PANGEA SHAREHOLDERS to rely thereon,
represents, warrants and agrees as follows:
1. CONCENTRAX is, as of the date of this Agreement, a validly existing
corporation in good standing, duly organized pursuant to the laws of the State
of Nevada, with all legal and corporate authority and power to conduct its
business as now being conducted and to own its properties and to the best of its
knowledge it possesses all necessary permits and licenses required in connection
with the conduct of its business.
2. The conduct of CONCENTRAX's present business is, to the best of its
knowledge, in material compliance with all applicable, federal, state and local
governmental statutes, rules, regulations, ordinances and decrees.
3. Pursuant to its Articles of Incorporation, as amended, CONCENTRAX is
authorized to issue 10,000,000 shares of Preferred Stock having a par value of
$.001 per share, none of which are issued and outstanding, 50,000,000 shares of
Common Stock having a par value of $.01 per share, of which 12,645,450 shares
are presently issued and outstanding. There are no other authorized or
outstanding securities of any class or of any kind or character of the
corporation and, except as reflected in this Agreement, notwithstanding the
draft Term Sheet attached hereto as Exhibit "B" for the sale of 625,000 shares
of CTRX Common Stock for total proceeds of $500,000. Other than that offering,
there are no outstanding subscriptions, options, warrants or other agreements or
commitments obligating CONCENTRAX, to issue or to sell any additional shares of
its stock or any options or rights with respect thereto, or any securities
convertible into any shares of stock of any class.
4. Upon issuance of the Common Stock of CONCENTRAX to the selling PANGEA
SHAREHOLDERS, the selling PANGEA SHAREHOLDERS will become the owners of a total
of 800,000 shares of CONCENTRAX's authorized, issued and outstanding Common
Stock.
5. The execution and delivery of this Agreement, the consummation of the
transactions herein contemplated and compliance with the terms of this Agreement
will not result in a breach of any of the terms or provisions of, or constitute
a default under, the Articles of Incorporation or By-Laws of CONCENTRAX ; any
indenture, other agreement or instrument to which the corporation is a party or
by which it or its assets are bound; or any applicable regulation, judgment,
order or decree of any governmental instrumentality or court, domestic or
foreign, having jurisdiction over the corporation, its securities or its
properties.
6. CONCENTRAX is not a party to any written or oral agreement which grants
an option or right of first refusal or other arrangement to acquire any of its
stock or to any agreement that affects the voting rights of any of its stock,
nor has such company made any commitment of any kind relating to the issuance of
shares of any of its stock, whether by subscription, right of conversion, option
or otherwise.
7. CONCENTRAX has filed with the appropriate governmental agencies all tax
returns and tax reports required to be filed, in correct form; all federal,
state and local income, franchise, sales, use, occupation or other taxes due
have been fully paid or adequately reserved for; to the extent that tax
liabilities have accrued, but have not become payable, they are adequately
reflected as liabilities on the books of the company; and CONCENTRAX is not a
party to any action or proceeding by any governmental authority for assessment
or collection of taxes, nor has any claim for assessments been asserted against
CONCENTRAX.
8. There are presently no contingent liabilities, factual circumstances,
threatened or pending litigation, contractually assumed obligations or
unasserted possible claims which are known to CONCENTRAX, which might result in
a material adverse change in the future financial condition or operations of
CONCENTRAX other than as previously disclosed to PANGEA DESIGN or reflected in
CONCENTRAX's audited financial statements provided to PANGEA DESIGN.
9. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby do not require the consent, authority or
approval of any other person or entity except such as have been obtained.
10. No transactions have been entered into either by or on behalf of
CONCENTRAX, other than in the ordinary course of business, nor have any acts
been performed (including within the definition of the term "performed" the
failure to perform any required acts) which would adversely affect the goodwill
of CONCENTRAX.
11. The entering into of this Agreement and the performance thereof has
been duly and validly authorized by all required corporate action and does not
require any consents other than such as have been unconditionally obtained.
12. At Closing, CONCENTRAX shall not have any debt or liability nor any
contract or commitment which will require the payment of any sum which will
survive Closing.
13. The Audited Financial Statements for CONCENTRAX (attached hereto as
Exhibit "C") were prepared in conformity with generally accepted accounting
principles consistently applied during the periods, and present fairly the
financial position, results of operations, and changes in financial position, of
CONCENTRAX.
14. Except as set forth in the Audited Financial Statements of
CONCENTRAX,CONCENTRAX is the owner, free and clear of any liens, pledges, or
encumbrances, of all of the property and assets set forth in its Balance Sheets;
15. CONCENTRAX has no material liabilities or obligations except those
disclosed in the Audited Financial Statements of CONCENTRAX and does not have
any knowledge of facts which would require the setting up of additional reserves
with respect thereto;
16 CONCENTRAX is not in default under or in breach of the provisions of any
debt, security, mortgage, indebtedness, material contract, or agreement to which
it is a party or by which it is bound, which default or breach would materially
adversely affect its business or properties or condition, financial or
otherwise, or would result in the creation of a lien or charge upon any of the
properties or assets of CONCENTRAX;
17. No waiver, indulgence or postponement of any of the obligations of
CONCENTRAX has been granted by any obligee;
18. There exists no event, current condition, or act which, with the
giving of notice of the lapse of time or the happening of any other event or
condition, would become a default under or breach of any such debt, security,
mortgage, indebtedness, or material contract, or would result in the creation of
a lien or charge upon the properties or assets of CONCENTRAX as reflected in its
Balance Sheets. None of the terms of any debt, security, mortgage indebtedness
or other material contract or any other contract agreement would prevent the
consummation of the Closing of this Agreement;
19. There has been no adverse material change in the business or financial
position and no event, condition or state of facts which materially and
adversely affects, or threatens to materially and adversely affect, the business
or results of operations or financial condition of CONCENTRAX;
20. There are no loans, accrued obligations, liabilities, claims, or
contractual obligations owed by CONCENTRAX. to any of its Officers, Directors,
or Stockholders;
21. There is no suit, action, or legal, administrative, arbitration or
other proceeding or governmental investigation, or any change in the zoning,
building, or licensing ordinances affecting the real property or any significant
leasehold interests of CONCENTRAX, pending or threatened, which might affect the
business, financial condition, or earnings of CONCENTRAX;
22. Except as set forth on "C" attached hereto, CONCENTRAX does not have
any debts and liabilities over $5,000 nor any contracts or commitments which
will require the payment of over $5,000 which will survive the reorganization.
23. The shares of CONCENTRAX being acquired by the selling PANGEA
SHAREHOLDERS hereby are duly and validly authorized, issued and outstanding and
are fully paid and nonassessable. There are no adverse claims against such
shares or liens and encumbrances thereon. There are no agreements between
CONCENTRAX and any other individual or entity which would prevent or affect the
consummation of the transaction provided for in this Agreement;
24. The corporate record book of CONCENTRAX. is complete and contains all
amendments to the Articles, Bylaws and all Minutes of meetings of its Directors
and Shareholders; and
25. This Agreement and all Exhibits to this Agreement and all documents
delivered to PANGEA DESIGN and the selling PANGEA SHAREHOLDERS at the Closing in
connection with this transaction are true and correct. The representations and
warranties made by CONCENTRAX in this Agreement contain no untrue statements of
material facts and do not omit to state a material fact necessary to make the
statements contained herein not misleading. Notwithstanding any investigation
that may be made by PANGEA DESIGN and/or the selling PANGEA SHAREHOLDERS, all
representations and warranties of CONCENTRAX made in this Agreement shall be
deemed to have been made both at the time of the execution of this Agreement and
at the Closing and shall survive the Closing of this Agreement.
The foregoing representations, warranties and agreements shall be true and
correct as of the effective date of the reorganization. Such representations,
warranties and agreements shall survive the reorganization until June 30, 2003.
None of such representations, warranties and agreements contain on the date
hereof, or shall contain as of the effective date of the reorganization, any
false or misleading statement of a material fact or omit to state any material
fact necessary in order to make the representations, warranties and agreements
that are made not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF
PANGEA DESIGN, INC.
PANGEA DESIGN, intending CONCENTRAX to rely thereon, represents and
warrants as follows:
1. PANGEA DESIGN is, as of the date of this Agreement, a validly existing
corporation in good standing, duly organized pursuant to the laws of the State
of Texas with all legal and corporate authority and power to conduct its
business as now being conducted and to own its properties and it possesses all
necessary permits and licenses required in connection with the conduct of its
business.
2. The conduct of PANGEA DESIGN's business is, to the best of its
knowledge, in material compliance with all applicable, federal, state and local
governmental statutes, rules, regulations, ordinances and decrees.
3. Pursuant to its Articles of Incorporation PANGEA DESIGN is authorized to
issue 100,000 shares of Common Stock of no par value, of which 100,000 shares
are issued and outstanding. There are no other authorized or outstanding equity
or debt securities of PANGEA DESIGN of any kind or character, and there are no
outstanding subscriptions, options, warrants or other agreements or commitments
obligating the corporation, to issue or to sell any additional shares of PANGEA
DESIGN's stock or any options or rights with respect thereto, or any securities
convertible into any shares of stock of any class.
4. The execution and delivery of this Agreement, the consummation of the
transactions herein contemplated and compliance with the terms of this Agreement
will not result in a breach of any of the terms or provisions of, or constitute
a default under, the Articles of Incorporation or By-Laws of PANGEA DESIGN; any
indenture, other agreement or instrument to which such corporation is a party or
by which it or its assets are bound; or any applicable regulation, judgment,
order or decree of any governmental instrumentality or court, domestic or
foreign, having jurisdiction over the corporation, its securities or its
properties.
5. PANGEA DESIGN is not a party to any written or oral agreement which
grants an option or right of first refusal or other arrangement to acquire any
of the stock or to any agreement that affects the voting rights of any of the
stock, nor is there any commitment of any kind relating to the issuance of
shares of any of its stock, whether by subscription, right of conversion, option
or otherwise.
6. PANGEA DESIGN is not a party to any agreement or understanding for the
sale or exchange of inventory or services for consideration other than cash or
at a discount in excess of normal discounts for quantity or for cash payment.
7. PANGEA DESIGN has filed with the appropriate governmental agencies all
tax returns and tax reports required to be filed in correct form; all federal,
state and local income, franchise, sales, use, occupation or other taxes due
have been fully paid or adequately reserved for; to the extent that tax
liabilities have accrued, but have not become payable, they are adequately
reflected as liabilities on the books of such company; and PANGEA DESIGN is not
a party to any action or proceeding by any governmental authority for assessment
or collection of taxes, nor has any claim for assessment been asserted against
PANGEA DESIGN.
8. There are presently no contingent liabilities, factual circumstances,
threatened or pending litigation, contractually assumed obligations or
unasserted possible claims which are known to PANGEA DESIGN, which might result
in a material adverse change in the future financial condition or operations of
PANGEA DESIGN other than as previously disclosed to CONCENTRAX or reflected in
PANGEA DESIGN's financial statements provided to CONCENTRAX.
9. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby do not require the consent, authority or
approval of any other person or entity except such as have been obtained.
10. No transactions have been entered into either by or on behalf of PANGEA
DESIGN, other than in the ordinary course of business nor have any acts been
performed (including within the definition of the term "performed" the failure
to perform any required acts) which would adversely affect the goodwill of
PANGEA DESIGN.
11. The entering into of this Agreement and the performance thereof have
been duly and validly authorized by all required corporate action and do not
require any consents other than such as have been unconditionally obtained.
12. The Audited Financial Statements for PANGEA DESIGN for the year ended
December 31, 1999, and the unaudited financial statements prepared by Management
covering the period from inception (July 17, 1998) through December 31, 1998,
furnished to CONCENTRAX (attached hereto as Exhibit "D") were prepared in
conformity with generally accepted accounting principles consistently applied
during the periods, and present fairly the financial position, results of
operations, and changes in financial position, of PANGEA DESIGN.
13. Except as set forth in the Audited Financial Statements of PANGEA
DESIGN, PANGEA DESIGN is the owner, free and clear of any liens, pledges, or
encumbrances, of all of the property and assets set forth in the Balance Sheet;
14. PANGEA DESIGN has no material liabilities or obligations except those
disclosed in the Audited Financial Statements of PANGEA DESIGN. PANGEA DESIGN
does not have any knowledge of facts which would require the setting up of
additional reserves with respect thereto;
15. Except as disclosed in the Term Sheet attached hereto as Exhibit "B",
PANGEA DESIGN is not in default under or in breach of the provisions of any
debt, security, mortgage, indebtedness, material contract, or agreement to which
it is a party or by which it is bound, which default or breach would materially
adversely affect its business or properties or condition, financial or
otherwise, or would result in the creation of a lien or charge upon any of the
properties or assets of PANGEA DESIGN;
16. No waiver, indulgence or postponement of any of the obligations of
PANGEA DESIGN has been granted by any obligee, except as disclosed in the Term
Sheet attached hereto as Exhibit "B".
17. There exists no event, current condition, or act which, with the giving
of notice of the lapse of time or the happening of any other event or condition,
would become a default under or breach of any such debt, security, mortgage,
indebtedness, or material contract, or would result in the creation of a lien or
charge upon the properties or assets of PANGEA DESIGN as reflected in the
Balance Sheet. None of the terms of any debt, security, mortgage indebtedness or
other material contract or any other contract or agreement would prevent the
consummation of the Closing of this Agreement.
18. There has been no adverse material change in the business or
consolidated financial position, and no event, condition or state of facts which
materially and adversely affects, or threatens to materially and adversely
affect, the business or results of operations or financial condition of PANGEA
DESIGN.
19. There are no loans, accrued obligations, liabilities, claims, or
contractual obligations owed by PANGEA DESIGN to any of its Officers, Directors,
or Stockholders except those set forth on the Financial Statements of PANGEA
DESIGN attached hereto as Exhibit "D."
20. There is no suit, action, or legal, administrative, arbitration or
other proceeding or governmental investigation, or any change in the zoning,
building, or licensing ordinances affecting the real property or any significant
leasehold interests of PANGEA DESIGN and its subsidiary, pending or threatened,
which might affect the business, financial condition, or earnings of PANGEA
DESIGN.
21. Except as set forth in the Financial Statements of PANGEA DESIGN
attached hereto as Exhibit "D," PANGEA DESIGN does not have any debts and
liabilities over $5,000 nor any contracts or commitments which will require the
payment of over $5,000 which will survive the reorganization.
22. The shares of PANGEA DESIGN being acquired by CONCENTRAX from the
selling PANGEA SHAREHOLDERS hereby are duly and validly authorized, issued and
outstanding and are fully paid and nonassessable. To the best of PANGEA DESIGN's
knowledge, the SELLING PANGEA DESIGN SHAREHOLDERS are the legal and beneficial
owners of the shares claimed to be owned by them and, to the best of PANGEA
DESIGN's knowledge, there are no adverse claims against such shares or liens and
encumbrances thereon. To the best of PANGEA DESIGN's knowledge, there are no
agreements between any of the SELLING PANGEA DESIGN SHAREHOLDERS and any other
individual or entity which would prevent or affect the consummation of the
transaction provided for in this Agreement.
23. The corporate record book of PANGEA DESIGN is complete and contains all
amendments to the Articles, Bylaws and all Minutes of meetings of Directors and
Shareholders.
24. This Agreement and all Exhibits to this Agreement and all documents
delivered to CONCENTRAX by PANGEA DESIGN at the Closing in connection with this
transaction are true and correct. The representations and warranties made by
PANGEA DESIGN in this Agreement contain no untrue statements of material facts
and do not omit to state a material fact necessary to make the statements
contained herein not misleading. Notwithstanding any investigation that may be
made by CONCENTRAX, all representations and warranties of PANGEA DESIGN and the
SELLING PANGEA DESIGN SHAREHOLDERS made in this Agreement shall be deemed to
have been made both at the time of the execution of this Agreement and at the
Closing and shall survive the Closing of this Agreement.
The foregoing representations, warranties and agreements and those
contained in Article I, Paragraph 4 above shall be true and correct as of the
effective date of the reorganization. Such representations, warranties and
agreements shall survive the reorganization until June 30, 2003. None of such
representations, warranties and agreements contain on the date hereof, or shall
contain as of the effective date of the reorganization, any false or misleading
statement of a material fact or omit to state any material fact necessary in
order to make the representations, warranties and agreements contained herein
not misleading.
ARTICLE V
CONDUCT OF CONCENTRAX BEFORE CLOSING
From the execution of this Agreement to Closing, CONCENTRAX shall not take
any action, or enter into any agreement, that would constitute or cause any
inducement, representation or warranty of CONCENTRAX contained in this Agreement
to become untrue, nor take any action or enter into any agreement that would
constitute or cause a breach of this Agreement. Specifically, but not in
limitation of the foregoing, CONCENTRAX shall not:
(a) enter into any employment or consulting agreement or otherwise create any
employment relationship or salary/wage/ compensation/remuneration
liability;
(b) amend its Articles of Incorporation and/or By-Laws;
(c) issue or agree to issue any stock or other securities, including any right,
warrant or option to purchase or otherwise acquire any of its stock or
securities;
(d) issue any bonds, debentures, notes or other evidences of indebtedness;
(e) declare or pay any dividend (whether in cash, property, or securities);
(f) purchase or redeem any of its stock;
(g) enter into any Agreement, whether written or oral, which shall survive the
Closing except agreements which are executed in the ordinary course of
business; or
(h) sell, lease, or encumber, or enter into any agreement to do any of the
foregoing with respect to any real or personal property owned by it except
in the ordinary course of business.
CONCENTRAX will use its best efforts to preserve intact the business
organization of CONCENTRAX, to keep available to it the services of its present
officers and employees, to preserve its present relationships with persons
having significant business relations with it, to maintain all of its properties
in customary repair and condition and to maintain insurance policies in respect
of its business and properties consistent with current practice.
ARTICLE VI
CONDUCT OF PANGEA DESIGN BEFORE CLOSING
From the execution of this Agreement to Closing, PANGEA DESIGN shall not
take any action, or enter into any agreement, that would constitute or cause any
inducement, representation or warranty of PANGEA DESIGN contained in this
Agreement to become untrue, nor take any action or enter into any agreement
that would constitute or cause a breach of this Agreement. Specifically, but
not in limitation of the foregoing, PANGEA DESIGN shall not:
(a) enter into any employment/consulting or consulting agreement or otherwise
create any employment relationship or salary/wage/
compensation/remuneration liability;
(b) amend its Articles of Incorporation and/or By-Laws;
(c) issue or agree to issue any stock or other securities, including any right,
warrant or option to purchase or otherwise acquire any of its stock or
securities;
(d) issue any bonds, debentures, notes or other evidences of indebtedness;
(e) declare or pay any dividend (whether in cash, property, or securities);
(f) purchase or redeem any of its stock;
(g) enter into any Agreement, whether written or oral, which shall survive the
Closing except agreements which are executed in the ordinary course of
business; or
(h) sell, lease, or encumber, or enter into any agreement to do any of the
foregoing, any real or personal property owned by it except in the ordinary
course of business.
PANGEA DESIGN will use its best efforts to preserve intact the business
organization of PANGEA DESIGN, to keep available to it the services of its
present officers and employees, to preserve its present relationships with
persons having significant business relations with it, to maintain all of its
properties in customary repair and condition and to maintain insurance policies
in respect of its business and properties consistent with current practice.
ARTICLE VII
CONDUCT OF PARTIES PENDING CLOSING
1. CONCENTRAX and PANGEA DESIGN each agree to give to the other and the
authorized representatives of the other full access to all the premises and
books and records of it and to furnish the other with such financial and
operating data and other information with respect to the business and properties
of it as the other shall from time to time request; provided, however, that any
such investigation shall not affect any of the representations and warranties
hereunder; and provided further, that any such investigation shall be conducted
in such manner as not to interfere unreasonably with the operation of the
business of the other. In the event of termination of this agreement, PANGEA
DESIGN and CONCENTRAX will each return to the other all documents, work papers
and other material obtained from the other in connection with the transactions
contemplated hereby and will use all reasonable efforts to keep confidential any
information obtained pursuant to this agreement unless such information is
readily ascertainable from public or published information or trade sources.
2. Each of PANGEA DESIGN and CONCENTRAX shall use its best efforts to
obtain the consent or approval of each person whose consent or approval shall be
required in order to permit the SELLING PANGEA DESIGN SHAREHOLDERS or
CONCENTRAX, as the case may be, to consummate the reorganization.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF CONCENTRAX
The obligations of CONCENTRAX to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, at or before the Closing date,
of the following conditions, any one or more of which may be waived by
CONCENTRAX in its sole discretion:
1. All representations and warranties made by PANGEA DESIGN and the selling
PANGEA SHAREHOLDERS in this Agreement shall be true and correct in all material
respects on and as of the Closing date as if again made by PANGEA DESIGN and the
selling PANGEA SHAREHOLDERS on and as of such date, and, if the Closing date is
other than the date hereof, CONCENTRAX shall have received a certificate dated
the Closing date and signed by PANGEA DESIGN and the PANGEA SHAREHOLDERS to that
effect.
2. PANGEA DESIGN and the selling PANGEA SHAREHOLDERS shall have
performed in all material respects all obligations required under this Agreement
to be performed by them on or before the Closing date, and CONCENTRAX shall have
received a certificate dated the Closing date and signed by PANGEA DESIGN and
the selling PANGEA SHAREHODLERS to that effect.
3. All consents, waivers, authorizations and approvals required in order
for the selling PANGEA SHAREHOLDERS to deliver their shares hereunder shall have
been duly obtained and shall be in full force and effect on the Closing date.
4. No preliminary or permanent injunction or other order issued by any
court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition of
PANGEA DESIGN shall be in effect; and no action or proceeding before any court
or governmental or regulatory authority, domestic or foreign, shall have been
instituted by any government or governmental or regulatory authority, domestic
or foreign, or by any other person or entity, which seeks to prevent or delay
the consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement.
5. During the period from the date hereof to the Closing date, there shall
not have been any event, development, occurrence or change that has had or could
reasonably be expected to have a material adverse effect on the financial
position of PANGEA DESIGN.
6. CONCENTRAX shall have received such other duly executed certificates,
instruments and documents in furtherance of the transactions contemplated by
this Agreement as CONCENTRAX or its counsel may reasonably request.
7. All certificates, instruments and other documents required to be
executed or delivered by or on behalf of PANGEA DESIGN and the selling PANGEA
SHAREHOLDERS under the provisions of this Agreement, and all other actions and
proceedings required to be taken by or on behalf of PANGEA DESIGN and the
selling PANGEA SHAREHOLDERS in furtherance of the transactions contemplated
hereby, shall be reasonably satisfactory in form and substance to counsel for
CONCENTRAX.
8. Each of the officers and directors of PANGEA shall have tendered his or
her resignations as officers and directors of PANGEA on or before the date set
for closing.
ARTICLE IX
CONDITIONS TO OBLIGATIONS
OF PANGEA DESIGN AND THE SELLING
PANGEA SHAREHOLDERS
The obligations of PANGEA DESIGN and the selling PANGEA SHAREHOLDERS to
consummate the transactions contemplated by this Agreement are subject to the
fulfillment, at or before the Closing date, of the following conditions, any one
or more of which may be waived by PANGEA DESIGN and the selling PANGEA
SHAREHOLDERS.
1. All representations and warranties made by CONCENTRAX in this Agreement
shall be true and correct in all material respects on and as of the Closing date
as if again made by CONCENTRAX on and as of such date, and if the Closing date
is other than the date hereof, PANGEA DESIGN shall have received a certificate
dated the Closing date and signed by the President of CONCENTRAX to that effect.
2. CONCENTRAX shall have performed in all material respects all obligations
required under this Agreement to be performed by it on or before the Closing
date, and PANGEA DESIGN shall have received a certificate dated the Closing date
and signed by the President of CONCENTRAX to that effect.
4. All consents, waivers, authorizations and approvals required in order
for CONCENTRAX to deliver its shares as required hereunder shall have been duly
obtained and shall be in full force and effect on the Closing date.
5. No preliminary or permanent injunction or other order issued by any
court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any government or governmental or regulatory authority, domestic or foreign,
that declares this Agreement invalid or unenforceable in any respect or which
prevents the consummation of the transactions contemplated hereby shall be in
effect; and no action or proceeding before any court or governmental or
regulatory authority, domestic or foreign, shall have been instituted by any
government or governmental or regulatory authority, domestic or foreign, or by
any other person or entity, which seeks to prevent or delay the consummation of
the transactions contemplated by this Agreement or which challenges the validity
or enforceability of this Agreement.
6. During the period from the date hereof to the Closing date, there
shall not have been any event, development, occurrence or change that has had or
could reasonably be expected to have a material adverse effect on the financial
position of CONCENTRAX.
7. PANGEA DESIGN shall have received such other duly executed
certificates, instruments and documents in furtherance of the transactions
contemplated by this agreement as PANGEA DESIGN or its counsel may reasonably
request.
8. All certificates, instruments, opinions and other documents required
to be executed or delivered by or on behalf of CONCENTRAX under the provisions
of this Agreement, and all other actions and proceedings required to be taken by
or on behalf of CONCENTRAX in furtherance of the transactions contemplated
hereby, shall be reasonably satisfactory in form and substance to counsel for
PANGEA DESIGN.
ARTICLE X
TERMINATION AND ABANDONMENT
1. This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time before the Closing:
(a) by the mutual written consent of CONCENTRAX and PANGEA DESIGN;
(b) by CONCENTRAX if all the conditions set forth in Article IX of this
Agreement shall not have been satisfied or waived on or before the Closing
date;
(c) by the selling PANGEA SHAREHOLDERS, if all the conditions set forth in
Article X of this Agreement shall not have been satisfied or waived on or
before the Closing date;
(d) by the selling PANGEA SHAREHOLDERS or CONCENTRAX if the other party or
parties hereto fail to comply in any material respect with any of its or
their covenants or agreements contained herein, or breaches its or their
representations and warranties in any material way;by the selling PANGEA
SHAREHOLDERS or by CONCENTRAX if a court of competent jurisdiction or
governmental, regulatory or administrative agency or commission shall have
issued an order, decree or taken any other action (which order, decree or
ruling the parties hereto shall use their best efforts to lift), which
permanently restrains, enjoins or otherwise prohibits the transactions
contemplated by this Agreement; or
(e) by the selling PANGEA SHAREHOLDERS or CONCENTRAX at any time after August
29, 2002 if the Closing has not occurred on or prior to such date.
2. In the event of termination and abandonment of this Agreement
pursuant to Section 1 of this Article XI, written notice thereof shall forthwith
be given to the other party or parties and this Agreement shall terminate and
the transactions contemplated hereby shall be abandoned, without further action
by PANGEA DESIGN, the selling PANGEA SHAREHOLDERS or CONCENTRAX. If this
Agreement is terminated as provided herein, no party to this Agreement shall
have any liability or further obligation to any other party to this Agreement;
provided, however, that no termination of this Agreement pursuant to this
Article XI shall relieve any party of liability for breach of any provision of
this Agreement occurring before such termination.
ARTICLE XI
MISCELLANEOUS
1. NOTICES. All notices to a party shall be deemed given when mailed by
registered or certified mail to the address set forth below or such other
address as may be substituted therefore by notice:
To the selling PANGEA SHAREHOLDERS:
Jeremy Wessels
c/o Pangea Design, Inc.
2400 August Place, Suite 425
Houston, Texas 77057
Edward Wadsworth
c/o Pangea Design, Inc.
2400 August Place, Suite 425
Houston, Texas 77057
Josh Choi
C/o Pangea Design, Inc.
2400 August Place, Suite 425
Houston, Texas 77057
With a copy to:
John Karl Buche
2400 Augusta, Suite 350
Houston, Texas 77057
Attorney for Pangea
TO: CONCENTRAX, INC.
Mark Gifford, President
817 Oak Glen
Houston, Texas 77076
With a copy to:
Andrea Cataneo, Esq.
81 Meadowbrook Road
Randolph, NJ 07869
2. INTEGRATION. This Agreement is the entire Agreement among the parties
and supersedes any other prior agreement(s) among the parties with respect
thereto except as herein specified. There are no representations, warranties or
other agreements except as expressed in this Agreement. No alteration,
modification, or waiver of term or condition hereof shall be binding unless in
writing and signed by all parties.
3. AMENDMENTS. This Agreement may be amended only with the written approval of
both parties to the Agreement; provided, however, that no such amendment may be
made that would cause a breach of any warranty or representation herein.
4. NO ASSIGNMENT. This agreement may not be assigned by any party or by
operation of law or otherwise.
5. CONSTRUCTION. Whenever required by the context hereof, the masculine
gender shall be deemed to include the feminine and neuter; and the singular
member shall be deemed to include the plural. This Agreement shall be deemed to
have been mutually prepared by all parties and shall not be construed against
any particular party as the draftsman.
6. INTERPRETATION. It is the intent of the parties that this Agreement shall
be construed and interpreted, and that all questions arising hereunder shall be
determined in accordance with the provisions of the laws of the State of Texas.
7. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their successors and assigns.
8. VENUE. Any controversy, claim or dispute arising out of or resulting from
this Agreement, or the breach thereof, that cannot be resolved by negotiation,
shall be resolved in accordance with the laws of the State of Texas. Venue for
any dispute involving this controversy shall be proper in the Courts of Harris
County, Texas or the United States District Court for the Southern District of
Texas, Houston Division. The prevailing party in any dispute arising under this
Agreement shall be entitled to costs and attorney fees.
9. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
any one of which shall be deemed to be an original.
10. BROKERS' OR FINDERS' FEES. No agent, broker, person, or firm acting on
behalf of either party or any of their subsidiaries or under the authority of
any of them is or will be entitled to any commission or broker's or finder's fee
or financial advisory fee in connection with any of the transactions
contemplated herein.
11. EXHIBITS. All Exhibits described herein which are not attached to the
Agreement at execution shall be attached within three calendar days thereafter,
but not later than the Closing date. Each agreement shall be mutually agreed to
by all parties and shall bear the signature of the party submitting same.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have
hereunto set their hands and seals the day and year first above written.
CONCENTRAX, INC.
/s/ Mark Gifford
ATTEST: By:_______________________
Mark Gifford, President
/s/ R. Michael Looney
_______________________
Secretary
PANGEA DESIGN, INC.
/s/ Jeremy Wessels August 30, 2002
By: _________________________
Jeremy Wessels, President
ATTEST:
/s/ Trudy Robin Hilton
_______________________
Secretary
SELLING PANGEA SHAREHODLERS:
/s/ Jeremy Wessels August 30, 2002
____________________________
Jeremy Wessels
/s/ Edward Wadsworth August 30, 2002
____________________________
Edward Wadsworth
/s/ Josh Choi August 30, 2002
____________________________
Josh Choi
/s/ Trudy Robin Hilton
_______________________Attest