AGREEMENT AND PLAN OF MERGER
Agreement entered into as of February 19, 2004, by and between Technology
Connections, Inc., a North Carolina corporation ("Technology"), HouseRaising,
Inc., a Delaware corporation ("HouseRaising"), and the persons whose names are
set forth on the signature page hereof, who are the owners of record of all of
the issued and outstanding stock of HouseRaising (the "HouseRaising
Stockholders"). Technology, HouseRaising and the HouseRaising Stockholders are
referred to collectively herein as the "Parties".
This Agreement contemplates a tax-free merger of HouseRaising with and into
Technology in a reorganization pursuant to Code 368(a)(1)(A). However, none of
the Parties is seeking tax counsel or legal or accounting opinions on whether
the merger qualifies for tax free treatment and tax free treatment of the merger
is not a condition precedent to the obligations of the Parties to this
Agreement. HouseRaising Stockholders will receive capital stock in Technology in
exchange for their capital stock in HouseRaising.
Now, therefore, in consideration of the premises and the mutual promises herein
made, and in consideration of the representations, warranties, and covenants
herein contained, the Parties agree as follows.
ARTICLE I
THE MERGER TRANSACTION
1.01 The Merger.
On and subject to the terms and conditions of this Agreement, HouseRaising will
merge with and into Technology (the "Merger") at the Closing as defined in
Section 1.02 herein. Technology shall be the corporation surviving the Merger
(the "Surviving Corporation") and HouseRaising will cease to exist.
1.02 The Closing.
The Closing of the transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of Technology in Charlotte, North Carolina,
commencing at 9:00 a.m. local time on the second business day following the
satisfaction or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the Closing itself) or
such other date as the Parties may mutually determine (the "Closing Date").
1.03 Actions by Technology Prior to Closing:
Prior to closing, Technology will timely file the following documents with the
Securities and Exchange Commission ("the Commission"):
(i) Form 8K;
(ii) Schedule 14C, disclosing the merger and amendment to the Articles of
Incorporation; and
(iii)All other filings and periodic filing Technology is required to file,
including but not limited to its Form 10-KSB for the fiscal year ended
December 31, 2003, and its Form 10-QSB for the quarter ended March 31,
2004, if such reports are required to be filed prior to the Closing Date.
1.04 Actions at the Closing.
At the Closing, (i) HouseRaising will deliver to Technology the various
certificates, instruments, and documents referred to herein, (ii) Technology
will deliver to HouseRaising the various certificates, instruments, and
documents referred to herein, and (iii) Technology and HouseRaising will file
with the Secretary of State of the State of North Carolina Certificates of
Merger.
1.05 Effect of the Merger.
(i) General. The Merger shall become effective at the time (the "Effective
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Time") that Technology and HouseRaising file the Certificates of Merger
with the Secretary of State of the State of North Carolina. The Merger
shall have the effect set forth in the North Carolina Business Corporation
Act. Technology may, at any time after the Effective Time, take any action
(including executing and delivering any document) in the name and on behalf
of either Technology or HouseRaising in order to carry out and effectuate
the transactions contemplated by this Agreement.
(ii) Certificate of Incorporation. The Certificate of Incorporation of
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Technology in effect at and as of the Effective Time will remain the
Certificate of Incorporation of the Surviving Corporation without any
modification or amendment resulting solely as a result of the Merger or
this Agreement, except for an amendment to the Certificate of Incorporation
of Technology to change the corporate name of Technology to "HouseRaising,
Inc." Technology hereby agrees to take all steps which may be necessary to
change its name as aforesaid and to change its ticker symbol, such steps to
be taken as promptly as practicable after the execution of this Agreement.
(iii)Bylaws. The Bylaws of Technology in effect at and as of the Effective Time
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will remain the Bylaws of the Surviving Corporation without any
modification or amendment solely as a result of the Merger.
(iv) Conversion of HouseRaising Shares. At and as of the Effective Time, each
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share of HouseRaising Class "A" common stock and each share of HouseRaising
Class "B" common stock (each being referred to herein as a "HouseRaising
common share")(other than any Dissenting Share) shall be converted into 1.0
shares of common stock of Technology and .0384615 shares of Class A Voting
Convertible Preferred Stock ("Class A Convertible Preferred") of Technology
(the ratios of 1.0 common shares and .0384615 Class A Convertible Preferred
of Technology to one HouseRaising common share are referred to herein as
the "Conversion Ratios"). The Conversion Ratios shall be subject to
equitable adjustment in the event of any stock split, stock dividend,
reverse stock split, or other change in the number of HouseRaising common
shares outstanding. No HouseRaising common share shall be deemed to be
outstanding or to have any rights other than those set forth above after
the Effective Time.
(v) Issuance of Technology Common and Preferred. In the aggregate, 26,980,000
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shares of Technology common stock which shall represent a minimum of 51% of
the outstanding shares of common stock of Technology and 1,000,000 shares
of Technology Class A Convertible Preferred will be issued to the
HouseRaising Stockholders at and as of the Effective Time. The relative
rights, preferences and terms and conditions of the shares of the
Technology preferred voting stock are set forth in Exhibit A hereto.
1.06 Closing Procedure.
(i) At closing, Technology will deliver to the HouseRaising Stockholders stock
certificates representing the number of shares of Technology common stock
and Class A Convertible Preferred to which each of them is entitled issued
in each HouseRaising Shareholders respective name. Each HouseRaising
Shareholder shall deliver certificates endorsed in blank or accompanied by
stock powers executed in blank, representing the HouseRaising shares of
common stock to be surrendered, with all signatures medallion guaranteed
and with all necessary transfer taxes and other revenue stamps affixed and
acquired at the HouseRaising Stockholders' expense.
(ii) At the Closing and from time to time thereafter, the Parties hereto shall
execute such additional instruments and take such other action as the other
party may reasonably request in order to facilitate the transactions
contemplated herein.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES OF TECHNOLOGY
As an inducement to, and to obtain the reliance of HouseRaising, Technology
represents, promises and warrants as follows:
2.01 Organization.
Technology is, and will be at Closing, a corporation duly organized, validly
existing, and in good standing under the laws of the State of North Carolina and
has the corporate power and is and will be duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances, and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted, and
there are no other jurisdictions in which it is not so qualified in which the
character and location of the assets owned by it or the nature of the material
business transacted by it requires qualification, except where failure to do so
would not have a material adverse effect on its business, operations,
properties, assets or condition. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement in accordance with the terms hereof will not, violate any provision of
Technology's Articles of Incorporation or Bylaws, or other agreement to which it
is a party or by which it is bound.
2.02 Approval of Agreement.
Technology has full power, authority, and legal right and has taken, or will
take, all action required by law, its Articles of Incorporation, Bylaws, and
otherwise to execute and deliver this Agreement and to consummate the
transactions herein contemplated. The board of directors of Technology has
authorized and approved the execution, delivery, and performance of this
Agreement and the transactions contemplated hereby are subject to the approval
of the Technology shareholders and compliance with state and federal law.
Technology shareholders will not have dissenters rights with respect to any of
the transactions contemplated herein.
2.03 Capitalization.
The authorized capitalization of Technology consists of 100,000,000 shares of
common stock, $0.001 par value, of which 1,347,893 shares are issued and
outstanding prior to issuance of shares as set forth in Article I of this
Agreement. There are 5,000,000 shares of preferred stock authorized, having such
terms, conditions, relative rights and preferences as may be determined by the
Board of directors from time to time when issued, and no shares of preferred
stock are issued and outstanding prior to the issuance of shares as set forth in
Article I of this Agreement. There are, and at the Closing, there will be no
outstanding subscriptions, options, warrants, convertible securities, calls,
rights, commitments or agreements calling for or requiring issuance or transfer,
sale or other disposition of any shares of capital stock of the Company or
calling for or requiring the issuance of any securities or rights convertible
into or exchangeable (including on a contingent basis) for shares of capital
stock. All of the outstanding shares of Technology are duly authorized, validly
issued, fully paid and non-assessable and not issued in violation of the
preemptive or other right of any person. There are no dividends due, to be paid
or in arrears with respect to any of the capital stock of Company.
2.04 Financial Statements.
(i) Included in Schedule 2.04 are the audited balance sheet of Technology as of
December 31, 2002, and the related statements of operations, stockholders'
equity (deficit), and cash flows for the fiscal year ended December 31,
2002, including the notes thereto, and related statements of operations for
the quarters then ended (collectively the "Financial Statements") and the
accompanying auditor's report and representations by the Chief Financial
Officer of Technology to the effect that such financial statements contain
all adjustments (all of which are normal recurring adjustments) necessary
to present fairly the results of operations and financial position for the
periods and as of the dates indicated.
(ii) The financial statements of Technology delivered pursuant to Section
2.04(i) have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved as
explained in the notes to such financial statements. The Technology
financial statements present fairly, in all material respects, as of the
closing date, the financial position of Technology. Technology will not
have, as of the Closing Date, any liabilities, obligations or claims
against it (absolute or contingent) in excess of $200,000, and all assets
reflected therein present fairly the assets of Technology in accordance
with generally accepted accounting principles.
(iii)Technology has filed or will file as the Closing Date its tax returns
required to be filed for its two most recent fiscal years and will pay all
taxes due thereon. All such returns and reports are accurate and correct in
all material respects. Technology has no liabilities with respect to the
payment of any federal, state, county, local, or other taxes (including any
deficiencies, interest, or penalties) accrued for or applicable to the
period ended on the closing date and all such dates and years and periods
prior thereto and for which Technology may at said date have been liable in
its own right or as transferee of the assets of, or as successor to, any
other corporation or entity, except for taxes accrued but not yet due and
payable, and to the best knowledge of Technology, no deficiency assessment
or proposed adjustment of any such tax return is pending, proposed or
contemplated. None of such income tax returns has been examined or is
currently being examined by the Internal Revenue Service and no deficiency
assessment or proposed adjustment of any such return is pending, proposed
or contemplated. Technology has not made any election pursuant to the
provisions of any applicable tax laws (other than elections that relate
solely to methods of accounting, depreciation, or amortization) that would
have a material adverse affect on Technology, its financial condition, its
business as presently conducted or proposed to be conducted, or any of its
respective properties or material assets. There are no outstanding
agreements or waivers extending the statutory period of limitation
applicable to any tax return of Technology.
2.05 Information.
The information concerning Technology set forth in this Agreement is complete
and accurate in all respects and does not contain any untrue statement of a fact
or omit to state a fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. Technology shall cause
the schedules delivered by it pursuant hereto and the instruments delivered to
HouseRaising hereunder to be updated after the date hereof up to and including
the Closing Date.
2.06 Absence of Certain Changes or Events.
Except as set forth in this Agreement or the schedules hereto, since the date of
the most recent Technology balance sheet described in Section 2.04 and included
in the information referred to in Section 2.06:
(a) There has not been: (i) any adverse change in the business, operations,
properties, level of inventory, assets, or condition of Technology; or (ii)
any damage, destruction, or loss to Technology (whether or not covered by
insurance) adversely affecting the business, operations, properties,
assets, or conditions of Technology;
(b) Technology has not: (i) amended its Articles of Incorporation or Bylaws;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary or material considering the business of
Technology; (iv) made any material change in its method of management,
operation, or accounting; (v) entered into any other material transactions;
(vi) made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any present
or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or
any of its employees whose monthly compensation exceeds $1,000; or (viii)
made any increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or with its officers, directors, or employees;
(c) Technology has not: (i) granted or agreed to grant any options, warrants,
or other rights for its stocks, bonds, or other corporate securities
calling for the issuance thereof; (ii) borrowed or agreed to borrow any
funds or incurred, or become subject to, any material obligation or
liability (absolute or contingent) except liabilities incurred in the
ordinary course of business; (iii) paid any material obligation or
liability (absolute or contingent) other than current liabilities reflected
in or shown on the most recent Technology balance sheet and current
liabilities incurred since that date in the ordinary course of business;
(iv) sold or transferred, or agreed to sell or transfer, any of its
material assets, properties, or rights (except assets, properties, or
rights not used or useful in its business which, in the aggregate have a
value of less than $5,000 or canceled, or agreed to cancel, any debts or
claims (except debts and claims which in the aggregate are of a value of
less than $5,000); (v) made or permitted any amendment or termination of
any contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Technology ; or (vi) issued, delivered, or agreed to issue or deliver any
stock, bonds, or other corporate securities including debentures (whether
authorized and unissued or held as treasury stock); and
(d) Technology has not become subject to any law, order, investigation,
inquiry, grievance or regulation which materially and adversely affects, or
in the future would be reasonably expected to adversely affect, the
business, operations, properties, assets, or condition of Technology.
2.07 Litigation and Proceedings.
There are no material actions, suits, claims, or administrative or other
proceedings pending, asserted or unasserted, threatened by or against Technology
or adversely affecting Technology or its properties, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign,
or before any arbitrator of any kind. Technology is not in default of any
judgment, order, writ, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality.
2.08 Compliance With Laws.
Technology and its officers and directors have complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, including
federal and state securities laws. Technology and its officers, directors and
beneficial owners are not under investigation by any federal, state, county or
local authorities, including the Commission. Technology and its officers,
directors and beneficial owners have not received notification from any federal,
state, county, or local authorities, including the Commission, that it or any of
its officers or directors will be the subject of a legal action or that the
Commission's Division of Enforcement will be recommending to the Commission that
a Federal District Court or Commission administrative action or any other action
be filed or taken against Technology and its officers, directors and beneficial
owners.
2.09 Securities and Exchange Commission Compliance of Technology.
Technology has a class of securities registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended ("Exchange Act") and has complied in
all respects with Rule 14(a) and 14(c) of the Exchange Act, and with Sections 13
and 15(d) of the Exchange Act, and Technology, its management and beneficial
owners have complied in all respects with Sections 13(d) and 16(a) of the
Exchange Act.
2.10 Material Contract Defaults.
Technology is not in default under the terms of any outstanding contract,
agreement, lease, or other commitment, and there is no event of default or other
event which, with notice or lapse of time or both, would constitute a default in
any respect under any such contract, agreement, lease, or other commitment.
2.11 No Conflict With Other Instruments.
The execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust, or other material contract, agreement, or instrument to
which Technology is a party or to which any of its properties or operations are
subject.
2.12 Subsidiary.
Technology does not and has never owned, beneficially or of record, any equity
securities in any other entity. Technology does not have a predecessor as that
term is defined under generally accepted accounting principles or Regulation S-X
promulgated by the Securities and Exchange Commission.
2.13 Technology Schedules and Documents.
Technology will deliver to HouseRaising the following schedules and documents
within ten days prior to the date of closing, which are collectively referred to
as the "Technology Schedules" and which consist of the following separate
schedules dated as of the date of execution of this Agreement, all certified by
a duly authorized officer of Technology as complete, true, and accurate:
(a) A schedule including copies of the Articles of Incorporation and Bylaws of
Technology in effect as of the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of Technology approving this Agreement and the transactions
herein contemplated;
(c) A schedule setting forth a description of any material adverse change in
the business, operations, property, inventory, assets, or condition of
Technology since the most recent Technology balance sheet, required to be
provided pursuant to Section 2.04 hereof;
(d) A schedule setting forth the financial statements required pursuant to
Section 2.04(a) hereof;
(e) A schedule setting forth any other information, together with any required
copies of documents, required to be disclosed in the Technology Schedules
by Sections 2.01 through 2.12; and
(f) Legal opinions in a form acceptable to HouseRaising that Technology has
complied with applicable securities laws pertaining to this Agreement.
Technology shall cause the Technology Schedules and the instruments delivered to
HouseRaising hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date. Such
updated Technology Schedules, certified in the same manner as the original
Technology Schedules, shall be delivered prior to and as a condition precedent
to the obligation of HouseRaising to close.
2.14 Quotation on the OTC Bulletin Board.
Technology's Common Stock is quoted on the OTC Bulletin Board under the symbol
"TLGY" and Technology will retain such quotation on the OTC Bulletin Board until
the Closing of the transactions contemplated herein.
2.15 Delivery of Shareholder List.
Upon execution of this agreement, Technology shall deliver a certified
shareholder list from its transfer agent setting forth the name of each
Technology shareholder, the number of shares held by each, dated as of a date
within five days of closing and whether such shares held are restricted
securities. In connection therewith, Technology represents that none of its
shareholders are nominees for any other person.
ARTICLE III
REPRESENTATIONS, COVENANTS, WARRANTIES OF HOUSERAISING, ETC.
As an inducement to, and to obtain the reliance of Technology, HouseRaising and
the HouseRaising Stockholders, jointly and severally, represent and warrant as
follows:
3.01 Organization.
HouseRaising is, and will be on the Closing Date, a corporation duly organized,
validly existing, and in good standing under the laws of Delaware and has the
corporate power and is and will be duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, and there are no
other jurisdictions in which it is not so qualified in which the character and
location of the assets owned by it or the nature of the material business
transacted by it requires qualification, except where failure to do so would not
have a material adverse effect on its business, operations, properties, assets
or condition of HouseRaising. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not, violate any provision of
HouseRaising's Articles of Incorporation or Bylaws, or other material agreement
to which it is a party or by which it is bound.
3.02 Approval of Agreement.
HouseRaising has full power, authority, and legal right and has taken, or will
take, all action required by law, its Articles of Incorporation, Bylaws, or
otherwise to execute and deliver this Agreement and to consummate the
transactions herein contemplated. The board of directors of HouseRaising has
authorized and approved the execution, delivery, and performance of this
Agreement and the transactions contemplated hereby, subject to the approval of
the HouseRaising Stockholders and compliance with state and federal corporate
and securities laws.
3.03 Capitalization.
The authorized capitalization of HouseRaising consists of 90,000,000 shares of
Class "A" common stock, par value $.001, and 10,000,000 shares of Class "B"
common stock, par value $.001, of which as of the date hereof, 16,980,000 shares
of Class "A" common stock and 10,000,000 shares of Class "B" common stock are
issued and outstanding to the HouseRaising Shareholders set forth on the
signature page hereof. All issued and outstanding HouseRaising common shares are
validly issued, fully paid, and nonassessable and not issued in violation of the
preemptive or other right of any person. There are no dividends or other amounts
due or payable with respect to any of the shares of capital stock of
HouseRaising.
3.04 Financial Statements.
(a) Included in Schedule 3.04 are the unaudited balance sheets of HouseRaising
as of December 31, 2002 and the related statements of operations, cash
flows, and stockholders' equity for the period from inception to December
31, 2002 including the notes thereto and representations by the Chief
Operating Officer of HouseRaising to the effect that such financial
statements contain all adjustments (all of which are normal recurring
adjustments) necessary to present fairly the results of operations and
financial position for the periods and as of the dates indicated.
(b) The unaudited financial statements delivered pursuant to Section 3.04(a)
have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. The
financial statements of HouseRaising present fairly, as of their respective
dates, the financial position of HouseRaising. HouseRaising did not have,
as of the date of any such balance sheets, except as and to the extent
reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected in any financial
statements or the notes thereto prepared in accordance with generally
accepted accounting principles, and all assets reflected therein present
fairly the assets of HouseRaising, in accordance with generally accepted
accounting principles. The statements of revenue and expenses and cash
flows present fairly the financial position and result of operations of
HouseRaising as of their respective dates and for the respective periods
covered thereby.
3.05 Outstanding Warrants and Options.
HouseRaising has no issued warrants or options, calls, or commitments of any
nature relating to the authorized and unissued HouseRaising common stock.
3.06 Information.
The information concerning HouseRaising set forth in this Agreement and in the
schedules delivered by HouseRaising pursuant hereto is complete and accurate in
all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
HouseRaising shall cause the schedules delivered by HouseRaising pursuant to
this Agreement to Technology to be updated after the date hereof up to and
including the Closing Date.
3.07 Absence of Certain Changes or Events.
Except as set forth in this Agreement, since the date of the most recent
HouseRaising balance sheet described in Section 3.04 and included in the
information referred to in Section 3.06:
(a) There has not been: (i) any material adverse change in the business,
operations, properties, level of inventory, assets, or condition of
HouseRaising; or (ii) any damage, destruction, or loss to HouseRaising
materially and adversely affecting the business, operations, properties,
assets, or conditions of HouseRaising;
(b) HouseRaising has not: (i) amended its Articles of Incorporation or Bylaws;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary and material considering the business of
HouseRaising; (iv) made any material change in its method of accounting;
(v) entered into any other material transactions other than those
contemplated by this Agreement; (vi) made any material accrual or material
arrangement for or payment of bonuses or special compensation of any kind
or any severance or termination pay to any present or former officer or
employee; or (vii) made any material increase in any profit-sharing, bonus,
deferred compensation, insurance, pension, retirement, or other employee
benefit plan, payment, or arrangement made to, for, or with their officers,
directors, or employees;
(c) HouseRaising has not (i) granted or agreed to grant any options, warrants,
or other rights for its stocks, bonds, or other corporate securities
calling for the issuance thereof, except as previously disclosed to
Technology, (ii) borrowed or agreed to borrow any funds or incurred, or
become subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent)
other than current liabilities reflected in or shown on the most recent
HouseRaising balance sheet and current liabilities incurred since that date
in the ordinary course of business; (iv) sold or transferred, or agreed to
sell or transfer, any of its material assets, properties, or rights, or
agreed to cancel any material debts or claims; (v) made or permitted any
amendment or termination of any contract, agreement, or license to which it
is a party if such amendment or termination is material, considering the
business of HouseRaising; or (vi) issued, delivered, or agreed to issue or
deliver any stock, bonds, or other corporate securities including
debentures (whether authorized and unissued or held as treasury stock); and
(d) To the best knowledge of HouseRaising, it has not become subject to any law
or regulation which materially and adversely affects, or in the future
would be reasonably expected to adversely affect, the business, operations,
properties, assets, or condition of HouseRaising.
3.08 Title and Related Matters.
Except as provided herein or disclosed in the most recent HouseRaising balance
sheet and the notes thereto, HouseRaising has good and marketable title to all
of its properties, inventory, interests in properties, technology, whether
patented or unpatented, and assets, all of which are described in Schedule 3.08
and are reflected in the most recent HouseRaising balance sheet or acquired
after that date (except properties, interests in properties, and assets sold or
otherwise disposed of since such date in the ordinary course of business), free
and clear of all mortgages, liens, pledges, charges, or encumbrances, except (i)
statutory liens, mortgages, loans or claims not yet delinquent; and (ii) such
imperfections of title and easements as do not, and will not, materially detract
from, or interfere with, the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties. To the best knowledge of HouseRaising, its
technology does not infringe on the copyright, patent, trade secret, know-how,
or other proprietary right of any other person or entity and comprises all such
rights necessary to permit the operation of the business of HouseRaising as now
being conducted or as contemplated.
3.09 Litigation and Proceedings.
There are no material actions, suits, or proceedings pending or, to the
knowledge of HouseRaising, threatened by or against HouseRaising or adversely
affecting HouseRaising, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. HouseRaising does not have any knowledge of any default
on its part with respect to any judgment, order, writ, injunction, decree,
award, rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality.
3.10 Material Contract Defaults.
HouseRaising is not in default in any material respect under the terms of any
outstanding contract, agreement, lease, or other commitment which is material to
the business, operations, properties, assets, or condition of HouseRaising, and
there is no event of default or other event which, with notice or lapse of time
or both, would constitute a default in any material respect under any such
contract, agreement, lease, or other commitment in respect of which HouseRaising
has not taken adequate steps to prevent such a default from occurring.
3.11 No Conflict With Other Instruments.
The execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust or other material contract, agreement, or instrument to
which HouseRaising is a party or to which any of its properties or operations
are subject.
3.12 Governmental Authorizations.
HouseRaising has all licenses, franchises, permits, and other governmental
authorizations that are legally required to enable it to conduct its business in
all material respects as conducted on the date of this Agreement. Except for
compliance with federal and state law, as hereinafter provided, no
authorization, approval, consent, or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection with
the execution and delivery by HouseRaising of this Agreement and the
consummation by HouseRaising of the transactions contemplated hereby.
3.13 Compliance With Laws and Regulations.
HouseRaising has complied with all applicable statutes and regulations of any
federal, state, or other governmental entity or agency thereof having
jurisdiction over HouseRaising, except to the extent that noncompliance would
not materially and adversely affect the business, operations, properties,
assets, or condition of HouseRaising or except to the extent that noncompliance
would not result in the occurrence of any material liability for HouseRaising.
To the best knowledge of HouseRaising, the consummation of this transaction will
comply with all applicable statutes and regulations, subject to the preparation
and filing of any forms required by state and federal security laws.
3.14 Subsidiaries.
HouseRaising directly or indirectly owns, beneficially and of record, equity
securities in HouseRaising Management, LLC and HouseRaisingUSA, LLC.
3.15 HouseRaising Schedules.
HouseRaising has delivered to Technology the following schedules, which are
collectively referred to as the "HouseRaising Schedules" and which consist of
the following separate schedules dated as of the date of execution of this
Agreement, all certified by the Chief Executive Officer of HouseRaising as
complete, true, and accurate:
(a) A schedule including copies of the Articles of Incorporation and Bylaws of
HouseRaising and all amendments thereto in effect as of the date of this
Agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of HouseRaising approving this Agreement and the transactions
herein contemplated as referred to in Section 3.02;
(c) A schedule setting forth a description of any material adverse change in
the business, operations, property, inventory, assets, or condition of
HouseRaising since the most recent HouseRaising balance sheet, required to
be provided pursuant to Section 3.04 hereof;
(d) A schedule setting forth the financial statements required pursuant to
Section 3.04 (a) hereof; and
(e) A schedule setting forth any other information, together with any required
copies of documents, required to be disclosed in the HouseRaising Schedules
by Sections 3.01 through 3.14.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF HOUSERAISING
The obligations of HouseRaising under this Agreement are subject to the
satisfaction or waiver, at or before the Closing Date, of the following
conditions:
4.01 Shareholder Approval.
Technology shall obtain the written consent of a majority of its shareholders,
to approve the transactions contemplated by this Agreement including the merger
with HouseRaising and the issuance of Technology common stock and Class A
Convertible Preferred in exchange for all of the issued and outstanding
HouseRaising common shares.
4.02 Accuracy of Representations.
The representations and warranties made by Technology in this Agreement were
true when made and shall be true at the Closing Date with the same force and
effect as if such representations and warranties were made at and as of the
Closing Date, and Technology shall have performed or complied with all covenants
and conditions required by this Agreement to be performed or complied with by
Technology prior to or at the Closing. HouseRaising shall be furnished with
certificates, signed by duly authorized officers of Technology and dated the
Closing Date, to the foregoing effect.
4.03 Officer's Certificates.
HouseRaising shall have been furnished with certificates dated the Closing Date
and signed by the duly authorized Chief Executive Officer of Technology to the
effect that to such officer's best knowledge no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of Technology
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement. Furthermore,
based on certificates of good standing, representations of government agencies,
and Technology's own documents and information, the certificate shall represent,
to the best knowledge of the officer, that:
(a) This Agreement has been duly approved by Technology's board of directors
and has been duly executed and delivered in the name and on behalf of
Technology by its duly authorized officers pursuant to, and in compliance
with, authority granted by the board of directors of Technology pursuant to
a majority consent;
(b) There have been no adverse changes in Technology up to and including the
date of the certificate;
(c) All conditions required by this Agreement have been met, satisfied, or
performed by Technology;
(d) All authorizations, consents, approvals, registrations, reports, schedules
and/or filings with any governmental body including the Securities and
Exchange Commission, agency, or court have been obtained or will be
obtained by Technology and all of the documents obtained by Technology are
in full force and effect or, if not required to have been obtained, will be
in full force and effect by such time as may be required; and
(e) There is no claim action, suit, proceeding, inquiry, or investigation at
law or in equity by any public board or body pending or threatened against
Technology, wherein an unfavorable decision, ruling, or finding could have
an adverse effect on the financial condition of Technology, the operation
of Technology, or the merger contemplated herein, or any agreement or
instrument by which Technology is bound or in any way contests the
existence of Technology.
4.04 No Material Adverse Change.
Prior to the Closing Date, there shall not have occurred any adverse change in
the financial condition, business, or operations of Technology, nor shall any
event have occurred which, with the lapse of time or the giving of notice, may
cause or create any adverse change in the financial condition, business, or
operations of Technology.
4.05 Good Standing.
HouseRaising shall have received a certificate of good standing from the
appropriate authority, dated as of the date within five days prior to the
Closing Date, certifying that Technology is in good standing as a corporation in
the State of North Carolina.
4.06 Technology Indebtedness.
Technology's accounts payable and notes payable to vendors, lessors,
subcontractors, governmental entities and other creditors shall not exceed
$200,000.
4.07 Technology's board of directors and officers.
Effective as of the closing, the current board of directors of Technology shall
have resigned and the board of directors of HouseRaising shall have been
appointed as the board of directors of Technology, and the current Officers of
Technology shall have resigned and the officers of HouseRaising shall have been
appointed to their designated positions at Technology.
4.08 Litigation, etc.
Technology shall not have any litigation, claims or disputes, whether pending or
threatened, that could lead to claims against it totaling more than $200,000
(including those items referred to in Section 4.06 above).
4.09 Other Items.
HouseRaising shall have received from Technology such other documents, legal
opinions, certificates, or instruments relating to the transactions contemplated
hereby as HouseRaising may request.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF TECHNOLOGY
The obligations of Technology under this Agreement are subject to the
satisfaction or waiver, at or before the Closing Date, of the following
conditions:
5.01 Shareholder Approval.
Technology shall obtain, through a majority written consent of its shareholders,
action whereby the shareholders of Technology authorize and approve this
Agreement and the transactions contemplated hereby. If Technology is unable to
obtain shareholder approval, Technology is under no further obligation to
proceed with the transactions contemplated under this Agreement.
5.02 HouseRaising Stockholders.
The HouseRaising Stockholders shall approve this Agreement and the merger with
Technology contemplated by this Agreement.
5.03 Accuracy of Representations.
The representations and warranties made by HouseRaising and the HouseRaising
Stockholders in this Agreement were true when made and shall be true at the
Closing Date with the same force and affect as if such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement), and HouseRaising shall have performed or complied
with all covenants and conditions required by this Agreement to be performed or
complied with by HouseRaising prior to or at the Closing. Technology shall be
furnished with a certificate, signed by a duly authorized officer of
HouseRaising and dated the Closing Date, to the foregoing effect.
5.04 Officer's Certificates.
Technology shall have been furnished with certificates dated the Closing Date
and signed by the duly authorized Chief Operating Officer of HouseRaising to the
effect that no litigation, proceeding, investigation, or inquiry is pending or,
to the best knowledge of HouseRaising, threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
this Agreement. Furthermore, based on certificates of good standing,
representations of government agencies and HouseRaising's own documents, the
certificate shall represent, to the best knowledge of the officer, that:
(a) This agreement has been duly approved by HouseRaising's board of directors
and stockholders and has been duly executed and delivered in the name and
on behalf of HouseRaising by its duly authorized officers pursuant to, and
in compliance with, authority granted by the board of directors of
HouseRaising pursuant to a unanimous consent of its board of directors and
a majority vote of its stockholders;
(b) Except as provided or permitted herein, there have been no material adverse
changes in HouseRaising up to and including the date of the certificate;
(c) All material conditions required by this Agreement have been met,
satisfied, or performed by HouseRaising;
(d) All authorizations, consents, approvals, registrations, and/or filings with
any governmental body, agency, or court required in connection with the
execution and delivery of the documents by HouseRaising have been obtained
and are in full force and effect or, if not required to have been obtained
will be in full force and effect by such time as may be required; and
(e) There is no material action, suit, proceeding, inquiry, or investigation at
law or in equity by any public board or body pending or threatened against
HouseRaising, wherein an unfavorable decision, ruling, or finding would
have a material adverse affect on the financial condition of HouseRaising,
the operation of HouseRaising, or the merger contemplated herein, or any
material agreement or instrument by which HouseRaising is bound or would in
any way contest the existence of HouseRaising.
5.05 No Material Adverse Change.
Prior to the Closing Date, there shall not have occurred any material adverse
change in the financial condition, business or operations of HouseRaising, nor
shall any event have occurred which, with the lapse of time or the giving of
notice, may cause or create any material adverse change in the financial
condition, business, or operations of HouseRaising.
5.06 Issuance of Free Trading Shares to Kyzers.
The new board of directors of Technology shall have caused Technology to issue
as promptly as practicable 100,000 "free trading" shares of common stock to
Kevin Kyzer as payment for consulting services, and such board of directors
hereby agrees to issue and register such shares pursuant to a Registration
Statement on Form S-8.
5.07 Completion of Due Diligence Investigation.
Technology shall have completed its due diligence investigation of HouseRaising
and its subsidiaries, and such investigation shall be satisfactory to Technology
in all material respects.
5.08 Good Standing.
Technology shall have received a certificate of good standing (or its local
equivalent) from the appropriate authority, dated as of a date within five days
prior to the Closing Date, certifying that HouseRaising is in good standing as a
corporation in the State of Delaware.
5.09 Other Items.
Technology shall have received such further documents, certificates, or
instruments relating to the transactions contemplated hereby as Technology may
reasonably request.
ARTICLE VI
SPECIAL COVENANTS
6.01 Activities of Technology and HouseRaising
(a) From and after the date of this Agreement until the Closing Date and except
as set forth in the respective schedules to be delivered by Technology and
HouseRaising pursuant hereto or as permitted or contemplated by this
Agreement, Technology and HouseRaising will each:
(i) Carry on its business in substantially the same manner as it has
heretofore;
(ii) Maintain in full force and effect insurance comparable in amount and
in scope of coverage to that now maintained by it;
(iii)Perform in all material respects all of its obligations under
material contracts, leases, and instruments relating to or affecting
its assets, properties, and business;
(iv) Use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationships with its material suppliers and customers;
(v) Duly and timely file for all taxable periods ending on or prior to the
Closing Date all tax returns required to be filed by or on behalf of
such entity or for which such entity may be held responsible and shall
pay, or cause to pay, all taxes required to be shown as due and
payable on such returns, as well as all installments of tax due and
payable during the period commencing on the date of this Agreement and
ending on the Closing Date; and
(vi) Fully comply with and perform in all material respects all obligations
and duties imposed on it by all federal and state laws and all rules,
regulations, and orders imposed by federal or state governmental
authorities.
(b) From and after the date of this Agreement and except as provided herein
until the Closing Date, Technology and HouseRaising will each not:
(i) Make any change in its Articles of Incorporation or Bylaws;
(ii) Enter into or amend any material contract, agreement, or other
instrument of any of the types described in such party's schedules,
except that a party may enter into or amend any contract, agreement,
or other instrument in the ordinary course of business; and
(iii)Enter into any agreement for the sale of HouseRaising or Technology
securities without the prior written approval of the other party.
6.02 Access to Properties and Records.
Until the Closing Date, HouseRaising and Technology will afford to the other
party's officers and authorized representatives and attorneys full access to the
properties, books, and records of the other party in order that each party may
have full opportunity to make such reasonable investigation as it shall desire
to make of the affairs of HouseRaising or Technology and will furnish the other
party with such additional financial and other information as to the business
and properties of HouseRaising or Technology as each party shall from time to
time reasonably request.
6.03 Indemnification by HouseRaising and the HouseRaising Stockholders.
(a) HouseRaising will indemnify and hold harmless Technology and its directors
and officers, and each person, if any, who controls Technology within the
meaning of the Securities Act from and against any and all losses, claims,
damages, expenses, liabilities, or other actions to which any of them may
become subject under applicable law (including the Securities Act and the
Securities Exchange Act) and will reimburse them for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any claims or actions, whether or not resulting in liability,
insofar as such losses, claims, damages, expenses, liabilities, or actions
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of a material fact contained in any of the representations,
covenants and warranties set forth herein; or (ii) the breach of any
covenant or agreement set forth herein. The indemnity set forth herein
shall survive the consummation of the transactions herein for a period of
one year.
(b) The HouseRaising Stockholders will indemnify and hold harmless Technology
and its directors and officers, and each person, if any, who controls
Technology within the meaning of the Securities Act from and against any
and all losses, claims, damages, expenses, liabilities, or other actions to
which any of them may become subject under applicable law (including the
Securities Act and the Securities Exchange Act) and will reimburse them for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any claims or actions, whether or not resulting
in liability, insofar as such losses, claims, damages, expenses,
liabilities, or actions arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained in any
of the representations, covenants and warranties set forth herein; or (ii)
the breach of any covenant or agreement set forth herein. The indemnity set
forth herein shall survive the consummation of the transactions herein for
a period of one year.
6.04 Indemnification by Technology.
Technology will indemnify and hold harmless HouseRaising, the HouseRaising
Stockholders, HouseRaising's directors and officers, and each person, if any,
who controls HouseRaising within the meaning of the Securities Act from and
against any and all losses, claims, damages, expenses, liabilities, or actions
to which any of them may become subject under applicable law (including the
Securities Act and the Securities Exchange Act) and will reimburse them for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any claims or actions, whether or not resulting in
liability, insofar as such losses, claims, damages, expenses, liabilities, or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any application or statement filed
with a governmental body or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary in order to make the statements therein not misleading, but only
insofar as any such statement or omission was made in reliance upon and in
conformity with information furnished in writing by Technology expressly for use
therein. The indemnity agreement contained in this Section 6.04 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of HouseRaising and shall survive the consummation of the
transactions contemplated by this Agreement for a period of one year.
6.05 The Merger and Issuance of Technology Stock.
Technology and HouseRaising understand and agree that the consummation of this
Agreement, including the issuance of the Technology common stock and Class A
Convertible Preferred to the HouseRaising Stockholders as contemplated hereby,
constitutes the offer and sale of securities under the Securities Act and
applicable state statutes. Technology and HouseRaising agree that such
transactions shall be consummated in reliance on exemptions from the
registration requirements of such statutes that depend, among other items, on
the circumstances under which such securities are acquired.
(a) In order to provide documentation for reliance upon exemptions from the
registration requirements for such transactions, the signing of this
Agreement and the delivery of appropriate separate representations shall
constitute the Parties acceptance of, and concurrence in, the following
representations and warranties:
(i) The Technology Shareholders acknowledge that neither the Securities
and Exchange Commission nor the securities commission of any state or
other federal agency has made any determination as to the merits of
acquiring Technology common stock or Class A Convertible Preferred,
and that this transaction involves certain risks;
(ii) The HouseRaising Stockholders have received and read the Agreement and
understand the risks related to the consummation of the transactions
herein contemplated;
(iii)HouseRaising Stockholders have such knowledge and experience in
business and financial matters that they are capable of evaluating
Technology's business;
(iv) The HouseRaising Stockholders have been provided with copies of all
materials and information requested by them or their representatives,
including any information requested to verify any information
furnished (to the extent such information is available or can be
obtained without unreasonable effort or expense), and the Parties have
been provided the opportunity for direct communication regarding the
transactions contemplated hereby;
(v) All information which the HouseRaising Stockholders have provided to
Technology or its representatives concerning their suitability and
intent to hold shares in Technology following the transactions
contemplated hereby is complete, accurate, and correct;
(vi) The HouseRaising Stockholders understand that the Technology common
stock or Class A Convertible Preferred has not been registered, but is
being acquired by reason of a specific exemption under the Securities
Act as well as under certain state statutes for transactions not
involving any public offering; and
(vii)The HouseRaising Stockholders acknowledge that the shares of
Technology common stock and Class A Convertible Preferred must be held
and may not be sold, transferred, or otherwise disposed of for value
unless they are subsequently registered under the Securities Act or an
exemption from such registration is available. The certificates
representing the shares shall bear the following restrictive legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND ARE
"RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE
SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD OR TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
(b) In connection with the transaction contemplated by this Agreement,
Technology shall file, with its counsel, such notices, applications,
reports, or other instruments as may be deemed necessary or appropriate in
an effort to document reliance on such exemptions, and the appropriate
regulatory authority in the states where the Technology shareholders reside
unless an exemption requiring no filing is available in such jurisdictions,
all to the extent and in the manner as may be deemed by such Parties to be
appropriate.
(c) In order to more fully document reliance on the exemptions as provided
herein, Technology shall execute and deliver to HouseRaising, at or prior
to the Closing, such further letters of representation, acknowledgment,
suitability, or the like as the HouseRaising Stockholders and their
respective counsel may request in connection with the transactions
contemplated herein, including but not limited to reliance on exemptions
from registration under applicable securities laws.
(d) (i) The HouseRaising Stockholders have read this Agreement and understand
the risks related to the consummation of the transactions herein
contemplated;
(ii) The HouseRaising Stockholders and their representatives have such
knowledge and experience in business and financial matters that they
are capable of evaluating the merits of an investment in Technology's
common stock and Class A Convertible Preferred;
(iii)The HouseRaising Stockholders and their representatives have been
provided with copies of all materials and information requested by
them or their representatives, including any information requested to
verify any information furnished (to the extent such information is
available or can be obtained without unreasonable effort or expense),
and the Parties have been provided the opportunity for direct
communication regarding the transactions contemplated hereby;
(iv) All information which the HouseRaising Stockholders have provided to
Technology concerning their suitability and the transactions
contemplated hereby is complete, accurate, and correct;
(v) The HouseRaising Stockholders represent and warrant to Technology that
they are all "accredited investors" as such term is defined under the
Securities Act; and
(vi) The HouseRaising Stockholders understand and acknowledge that the
shares of Technology to be acquired have not been registered under the
Securities Act of 1933 and are being offered and sold in reliance upon
exemptions from registration.
6.06 Technology Liabilities.
Immediately prior to the Closing Date, Technology shall have no assets and no
liabilities, except for no more than $200,000 in accounts payable and notes
payable as set forth in section 4.06.
6.07 Securities Filings.
Prior to the date of closing, Technology shall be responsible for the
preparation and filing of a Schedule 14C with the Securities and Exchange
Commission and Technology shall timely make all such filings as a result of the
transactions contemplated in this Agreement.
6.08 Sales of Securities under Rule 144, If Applicable.
(a) Technology will use its best efforts to at all times satisfy the current
public information requirements of Rule 144 promulgated under the
Securities Act.
(b) Upon being informed in writing by any person holding restricted stock of
Technology as of the date of this Agreement that such person intends to
sell any shares under Rule 144 promulgated under the Securities Act
(including any Rule adopted in substitution or replacement thereof),
Technology will certify in writing to such person that it is in compliance
with the Rule 144 current public information requirement to enable such
person to sell such person's restricted stock under Rule 144, and as may be
applicable under the circumstances.
(c) If any certificate representing any such restricted stock is presented to
Technology's transfer agent for registration or transfer in connection with
any sales theretofore made under Rule 144, provided such certificate is
duly endorsed for transfer by the appropriate person(s) or accompanied by a
separate stock power duly executed by the appropriate person(s) in each
case with reasonable assurances that such endorsements are genuine and
effective, and is accompanied by an opinion of counsel satisfactory to
Technology and its counsel that such transfer has complied with the
requirements of Rule 144, as the case may be, Technology will promptly
instruct its transfer agent to allow such transfer and to issue one or more
new certificates representing such shares to the transferee and, if
appropriate under the provisions of Rule 144, as the case may be, free of
any stop transfer order or restrictive legend.
(d) The shareholders of Technology as of the date of this Agreement, as well as
those receiving Technology common stock and Class A Convertible Preferred
pursuant to this Agreement, are intended third-party beneficiaries of this
Section 6.08.
6.09 Technology Capitalization.
For a period of eighteen months from the Closing Date, Technology will not
engage in any reverse split of its issued and outstanding common stock without
the prior written approval of the holders of a majority in interest of the
issued and outstanding Technology Common Stock on the date of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.01 Brokers.
No broker's or finder's fee will be paid in connection with the transaction
contemplated by this Agreement.
7.02 No Representation Regarding Tax Treatment.
No representation or warranty is being made by any party to any other party
regarding the treatment of this transaction for federal or state income
taxation. Each party has relied exclusively on its own legal, accounting, and
other tax adviser regarding the treatment of this transaction for federal and
state income taxes and on no representation, warranty, or assurance from any
other party or such other party's legal, accounting, or other adviser.
7.03 Governing Law.
This Agreement shall be governed by, enforced and construed under and in
accordance with the laws of the State of North Carolina without giving effect to
principles of conflicts of law thereunder. All controversies, disputes or claims
arising out of or relating to this Agreement shall be resolved by binding
arbitration. The arbitration shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. Each
arbitrator shall possess such experience in, and knowledge of, the subject area
of the controversy or claim so as to qualify as an "expert" with respect to such
subject matter. The prevailing party shall be entitled to receive its reasonable
attorney's fees and all costs relating to the arbitration. Any award rendered by
arbitration shall be final and binding on the Parties, and judgment thereon may
be entered in any court of competent jurisdiction.
7.04 Notices.
Any notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered, if sent by facsimile or telecopy
transmission or other electronic communication confirmed by registered or
certified mail, postage prepaid, or if sent by prepaid overnight courier
addressed as follows:
If to Technology, to:
301C Verbena Street
Charlotte, North Carolina 28217
Attn: Kevin Kyzer
If to HouseRaising, to:
4801 East Independence Blvd., Suite 201
Charlotte, North Carolina 28212
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices, hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered or sent by facsimile or
telecopy transmission or other electronic communication, or one day after the
date so sent by overnight courier.
7.05 Attorney's Fees.
In the event that any party institutes any action or suit to enforce this
Agreement or to secure relief from any default hereunder or breach hereof, the
breaching party or parties shall reimburse the non-breaching party or parties
for all costs, including reasonable attorneys' fees, incurred in connection
therewith and in enforcing or collecting any judgment rendered therein.
7.06 Schedules; Knowledge.
Whenever, in any section of this Agreement, reference is made to information set
forth in the schedules provided by Technology or HouseRaising, such reference is
to information specifically set forth in such schedules and clearly marked to
identify the section of this Agreement to which the information relates.
Whenever any representation is made to the "knowledge" of any party, it shall be
deemed to be a representation that no officer or director of such party, after
reasonable investigation, has any knowledge of such matters.
7.07 Entire Agreement.
This Agreement represents the entire agreement between the Parties relating to
the subject matter hereof. All previous agreements between the Parties, whether
written or oral, have been merged into this Agreement. This Agreement alone
fully and completely expresses the agreement of the Parties relating to the
subject matter hereof. There are no other courses of dealing, understandings,
agreements, representations, or warranties, written or oral, except as set forth
herein.
7.08 Survival, Termination.
The representations, warranties, and covenants of the respective Parties shall
survive the Closing Date and the consummation of the transactions herein
contemplated for a period of one year from the Closing Date, unless otherwise
provided herein.
7.09 Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
7.10 Amendment or Waiver.
Every right and remedy provided herein shall be cumulative with every other
right and remedy, whether conferred herein, at law, or in equity, and such
remedies may be enforced concurrently, and no waiver by any party of the
performance of any obligation by the other shall be construed as a waiver of the
same or any other default then, theretofore, or thereafter occurring or
existing. At any time prior to the Closing Date, this Agreement may be amended
by a writing signed by all Parties hereto, with respect to any of the terms
contained herein, and any term or condition of this Agreement may be waived or
the time for performance thereof may be extended by a writing signed by the
party or parties for whose benefit the provision is intended.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the date first above written.
TECHNOLOGY, INC. HOUSERAISING, INC.
By: /s/ Kevin Kyzer By: /s/ Robert V. McLemore
--------------- ----------------------
Kevin Kyzer Robert V. McLemore
President President
HOUSERAISING STOCKHOLDERS:
LINDA W. MCLEMORE
/s/ Linda W. McLemore
(In Her Individual Capacity)
KRISTY M. CARRIKER
/s/ Kristy M. Carriker
(In Her Individual Capacity)
ELIZABETH ANN MCLEMORE
/s/ Elizabeth Ann McLemore
(In Her Individual Capacity)
MCLEMORE FAMILY TRUST
By: /s/ Robert V. McLemore
Name: Robert V. McLemore
Title: Grantor
ROBERT V. MCLEMORE
/s/ Robert V. McLemore
(In His Individual Capacity)
AFF CONSULTING, INC.
By: /s/ Kristy M. Carriker
Name: Kristy M. Carriker
Title: President
DEBORAH W. DIAZ
/s/ Deborah W. Diaz
(In Her Individual Capacity)
R. TILLMAN ROSS
/s/ R. Tillman Ross
(In His Individual Capacity)
RICHARD L. ROSS
/s/ Richard L. Ross
(In His Individual Capacity)
DURAIN WEIDMAN
/s/ Durain Weidman
(In His Individual Capacity)
SHARI LIMUD, INC.
By: /s/ Mordechai Friedman
Name: Mordechai Friedman
Title: President
CONG. OHEL YOSEF
By: /s/ Issack Teitelbaum
Name: Issack Teitelbaum
Title: President