STOCK PURCHASE AGREEMENT
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BY AND BETWEEN
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PROMOTA INTERNATIONAL, INC.
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AND
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INTERNATIONAL TEST SYSTEMS, INC.
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
this 23rd day of October 2003, by and between International Test Systems, Inc.
(hereinafter, "ITS" or the "Company"), a Delaware corporation, with an address
at 16161 College Oak, Suite 101, San Antonio, Texas 78249, and Promota
International Inc. (hereinafter "Promota" or "Buyer"), a Delaware corporation,
with an address at c/o Eaton & Van Winkle LLP, 3 Park Avenue, New York, NY
10016. ITS and Promota shall be hereinafter collectively referred to as the
"Parties" or individually as the "Party".
RECITALS
WHEREAS, ITS is authorized to issue fifty million (50,000,000) shares of
capital stock, of which two million four hundred six thousand (2,406,000) shares
are issued and outstanding as of the date hereof.
WHEREAS, ITS desires to secure additional working capital for the Company.
WHEREAS, Promota is already the holder of six hundred twenty six thousand
(626,000) shares, or approximately twenty-six percent (26%) of the Company.
WHEREAS, Promota wishes to acquire a controlling interest in the Company.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants, agreements, undertakings, representations and warranties contained
herein, the Parties hereto agree as follows:
1. Capital Contribution and Share Issuance
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1.01. Issuance of Shares.
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(a) ITS shall issue and shall sell and deliver to Promota, at the
Closing (as the term "Closing" is defined in Section 3, below), all right,
title and interest in and to nineteen million eight hundred fifty thousand
(19,850,000) shares of capital stock, which, together with the six hundred
twenty six thousand (626,000) shares already owned by Promota shall
constitute an equity stake in the Company of ninety two percent (92%), in
exchange for a capital cash contribution of two hundred fifty thousand
($250,000) Dollars (the "Cash Contribution"). Following the Closing herein,
Promota acknowledges that the Company shall continue to have the obligation
to pay the undisputed portion of certain outstanding payables of the
Company as detailed on the attached Schedule 1.01, but specifically
excluding costs of ITS related to this Agreement, the transaction, and the
Closing contemplated herein.
(b) Following the Closing herein, Promota shall have been issued and
purchased a total of twenty million four hundred seventy six thousand
(20,476,000) common shares, that is ninety-two (92%) of the issued and
outstanding equity securities of the Company.
1.02 Cash Contribution. ITS acknowledges that, on or about
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September 26, 2003, Promota transferred to ITS the sum of fifty thousand
($50,000) Dollars (the "First Cash Contribution"), and that the First Cash
Contribution is to be credited toward the Cash Contribution. In the event that
the Closing contemplated herein does not take place, the Company shall issue to
Promota, a demand promissory note for the amount of the First Cash Contribution,
carrying an interest rate of eight percent (8%), with the principal and interest
payable upon maturity, which date of maturity shall be one hundred twenty (120)
days from the date of the this agreement At the Closing contemplated herein,
Promota shall transfer the sum of two hundred thousand ($200,000) Dollars to the
Company (the "Second Cash Contribution"), as detailed in the manner prescribed
in Section 6.02(b), below, and ITS shall issue and deliver to Promota upon
receipt of the confirmation of the Second Cash Contribution, nineteen million
eight hundred fifty thousand (19,850,000) shares of capital stock. All Cash
Contributions shall be net of bank fees, wire transfer costs, and currency
conversion differences.
1.03. Additional Terms.
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(a) Employment Agreement. The Executive Employment Agreement
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("agreement"), between the Company and Carey G. Birmingham shall be
amended. Carey G. Birmingham shall now be the Company's Executive
Vice-President for real estate and retail development, and the agreement
shall have an effective date of October 22, 2003. The agreement shall be
amended to reflect a term of two (2) years, commencing October 22, 2003,
provided that if the Company has not received from parties other than
Promota capital of at least one hundred twenty five thousand ($125,000)
Dollars within six months of the date of execution of this Stock Purchase
Agreement, the agreement shall terminate as of April 22, 2004. The
agreement shall include a provision whereby Carey G. Birmingham shall
receive an annual salary of $55,000 during the first year of the term of
the Executive Employment Agreement and $65,000 during the second year of
the term of the Executive Employment Agreement. All other terms contained
in the Executive Employment Agreement shall remain the same as currently
provided for in the Executive Employment Agreement;
(b) Current Work Proposals. The Company has submitted a proposal
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together with CircuitCheck, Inc., as a subcontractor, to Less Crossley &
Associates and Ontario Power Generation for the delivery, installation,
service, upgrades, support, and warranty of static and dynamic automated
circuit board testers, as well as to facilitate the training of users of
the system. The said proposal was made on August 27, 2003. If a positive
response is received to the said proposal made by ITS, to Les Crossley &
Associates and Ontario Power Generation, then Carey G. Birmingham, the
current President and CEO of the Company, agrees to coordinate such project
on behalf of the Company at no additional cost or expense to the Company
other than that provided in the employment contract referenced in Section
1.03(a), above. Based upon the profit projections contained in the
proposal, in the event that the Company is retained pursuant to this
proposal, twenty thousand ($20,000) Dollars of the net proceeds resulting
from the project shall be used to pay down the Company's existing debt owed
to BFP Texas, and to Carey G. Birmingham.
(c) Board Resignations. With the exception of Carey G. Birmingham, the
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Board of Directors of ITS, shall resign from the Board of Directors,
effective as of the Closing Date, and at least two (2) new members of the
Board of Directors, of Promota's choosing, shall be appointed, effective as
of the Closing Date. A Resolution effecting the said resignations and
appointments is attached hereto and made a part hereof as Exhibit A. As
soon as is practically possible following the execution of this Agreement,
the Company shall seek to procure an acceptable policy of insurance
covering the activities of its directors and officers while serving the
Company;
(d) Underwriting Provisions. Carey G. Birmingham shall use his best
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efforts to ensure that the underwriting agreement described in this Section
shall remain in full force and effect following the Closing of the
transactions contemplated in this Agreement, or will use his best efforts
to cause a new agreement to be executed by Public Securities, Inc. Carey G.
Birmingham, following the Closing of the transaction contemplated herein
also warrant that, to the best of his knowledge, none of the terms of this
Agreement cause, shall cause, or have the effect of generating a commission
due and payable to Public Securities, Inc., and that in the event that a
commission to Public Securities, Inc. is generated by the execution of this
Agreement, that Public Securities, Inc. has agreed that any, and all, such
commissions due to it shall be waived, and shall become due and payable
only upon the successful completion of the Company's contemplated offering,
as detailed hereunder.
(e) ITS Debt. As of the Closing Date, the Debt of ITS, primarily the
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result of loans and/or advances made by Carey G. Birmingham and BFP Texas
to ITS, is one hundred twenty five thousand four hundred sixty two and
08/100 ($125,462.08) Dollars (the "ITS Debt"). The ITS Debt is evidenced by
two (2) promissory notes, one to Carey Birmingham due December 31, 2003, in
the amount of $43,362.08 (the "Birmingham promissory note"), and one to BFP
Texas due December 31, 2003, in the amount of $82,100.00 (the "BFP
promissory note"). Carey G. Birmingham and BFP Texas hereby agree to waive
all interest which has or may accrue on the ITS Debt. In addition, both BFP
Texas and Carey G. Birmingham agree to extend the maturity date of each of
the promissory notes to January 31, 2004, subject to the provisions of this
paragraph relating to repayment of the remainder of the ITS Debt. The
promissory notes shall be further amended to have a standard market
conditions clause added to them which shall provide that if market
circumstances or other conditions prevent the Company from paying the
promissory notes on the due date, the Company shall have an additional
thirty (30) days from the due date to pay the notes. On the date of the
receipt of the First Cash Contribution, as detailed in Section 1.02, above,
or immediately thereafter, but not to exceed five (5) business days after
date of the receipt of the First Cash Contribution, thirty thousand
($30,000) Dollars of the First Cash Contribution shall be used to reduce
the ITS debt, by crediting said thirty thousand ($30,000) Dollar payment
against the Birmingham promissory note. Of the remainder amount of the ITS
Debt, forty five thousand ($45,000) Dollars shall be converted into one
hundred thousand (100,000) shares of common stock of the Company, said
conversion shall first convert the balance or that part of the BFP
promissory note up to forty five thousand ($45,000) Dollars; fifteen
thousand ($15,000) Dollars of the ITS Debt shall be forgiven, with the
forgiven debt being equally applied between the Birmingham promissory note,
and the BFP promissory note; The balance of the ITS Debt, amounting to
thirty five thousand four hundred sixty two and 08/100 ($35,462.08)
Dollars, shall be dealt with as follows: fifteen thousand ($15,000) Dollars
of the ITS Debt shall be retired using proceeds from the Company's
contemplated offering, or from the Company's cash flow (the maturity date
of any promissory or demand notes evidencing such debt shall be further
extended to accommodate the Company's retiring said debt from offering
proceeds or cash flow); and the remaining twenty thousand ($20,000) Dollars
shall be paid from proceeds received from the proposal to Les Crossley and
Associates (see 1.03(b), above). In the event that the Company is not
successful in its proposal to Les Crossley and Associates, said twenty
thousand ($20,000) Dollars will be retired using proceeds from the
Company's contemplated offering, or from the Company's cash flow, and that
the maturity date of any promissory or demand notes evidencing such debt
shall be further extended to accommodate the Company's retiring said debt
from offering proceeds or cash flow;
(f) Authority to Utilize Bank Accounts. ITS shall continue to maintain
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a bank account at J.P. Morgan Chase Bank in New York, located at 349 Fifth
Avenue, New York, NY 10016 (the "New York bank account") and at a bank in
Texas of the new ITS board's choosing (the "Texas bank account"). ITS shall
retain the Cash Contributions in the New York bank account, and shall
transfer funds to the Texas bank account, as and when necessary to meet
Company expenses, provided, however, that the only person with control of
the New York bank account and with signing power on the New York bank
account, and whose signature is, and shall always be, necessary for all
withdrawals and transfers of funds in said account, shall be Mike
Dramytinos, or a designee of Mike Dramytinos. For purposes of funds
management, with respect to the Texas bank account, there shall be two
signatories on said account, with one of the signatories being Mike
Dramytinos, necessary on all expenditures of five hundred ($500.00) Dollars
or greater, and the Company must have the written approval of two (2)
designated persons, with one of the designated persons being Mike
Dramytinos, for any expenditure of five hundred ($500.00) Dollars or more.
2. Continuation of Business.
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2.01 Status-Quo Provision. For a period of six (6) months
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from the date of the Second Cash Contribution by Promota and the issuance of the
nineteen million eight hundred fifty thousand (19,850,000) shares of capital
stock by ITS, as contemplated in Provision 1.01 herein, Promota, and its
shareholders, as majority stockholders of ITS, agree that the Company shall not
engage in, complete, or perform any split of its shares, reverse split, or
cancellation of the existing stock of ITS, nor shall Promota, as majority
stockholder, issue any new shares of stock of the Company that shall dilute the
current (as of the date of this Agreement) shareholders of ITS unless adequate
consideration is received therefore. Furthermore, Promota agrees not to perform
any reverse split of the shares of the Company for three (3) months from the
date of the filing of the first post-effective amendment to the Company's
registration statement, that being Amendment No. 10 to Form SB-1, as filed with
the Securities and Exchange Commission on August 11, 2003, pursuant to File No.
333-88179, which registration statement was declared effective pursuant to
Section 8(a) of the 1933 Securities Act on August 15, 2003.
2.02 INTENTIONALLY OMITTED
2.03 Lock Up Agreement. After the Closing herein, receipt of
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the Cash Contribution, and issuance of the Shares by the Company, as
contemplated herein, the Company shall undertake to have all shareholders of the
Company that hold an interest of one percent (1%) or more of the capital stock
of the Company (the "significant shareholders") enter into a Lock Up Agreement
whereby all of the significant shareholders of the Company shall only sell,
pledge, assign, hypothecate or trade, no more than ten percent (10%) of the
total amount of the capital stock they hold in the Company during any thirty
(30) day period. This lock up agreement shall be for a term of six (6) months
from the date the Company's shares begin trading publicly.
3. Closing. Unless extended by mutual agreement, the Closing of the
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transaction contemplated hereby shall be held on October 22, 2003, at 5:00 p.m.
Eastern Standard Time, simultaneously and electronically at the law offices of
Buyer's and Company's counsel, or at such other place, or on such other date as
shall mutually be agreed to in writing by the Parties. The date on which the
Closing occurs is herein referred to variously as the "Closing Date" and the
"Closing."
4. Representations and Warranties of the Company. The Company hereby
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represents and warrants to Promota as follows:
4.01. Organization, Qualification. ITS is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified to do business as a foreign corporation in each
other jurisdiction in which the failure to so qualify would have a material
adverse effect on its business as presently conducted and as proposed to be
conducted.
4.02. Capitalization. Immediately after the Closing Date, the
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authorized capital stock of ITS shall consist of 50,000,000 shares of Common
Stock, of which 22,486,000 shares will be issued and outstanding. All such
outstanding shares of ITS capital stock shall have been duly authorized, validly
issued, fully paid and nonassessable as, and when, the receipt of the Second
Cash Contribution is confirmed, and are not subject to any preemptive rights
created by statute, the Articles of Incorporation or Bylaws of ITS or any
agreement to which ITS is a party or by which it is bound.
4.03. Authority Relative to this Agreement. ITS has the full
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right, power and authority to enter into this Agreement and to perform its
obligations hereunder. This Agreement has been duly authorized, executed and
delivered by ITS, and constitutes the valid and legally binding
obligation of ITS. No other actions or proceedings on the part of ITS are
necessary for ITS to authorize this Agreement, or to consummate the transactions
contemplated herein.
4.04. Litigation. Except as set forth on Schedule 4.04, ITS is
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not engaged in, nor has it been threatened with, any material litigation (which
for this purpose shall mean a potential liability in excess of $10,000 or
potential liabilities in the aggregate in excess of $10,000), arbitration,
investigation or other legal proceeding relating to ITS or its business as it is
now conducted, its property, or any action or proceeding wherein an existing
judgment or order against ITS would restrict, lien, or eliminate their ability
to currently and immediately transfer the Shares as detailed herein, nor, to the
knowledge of ITS, is there any valid basis for any such proceeding.
4.05. Indemnification. ITS shall, with respect to the
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representations, warranties, covenants and agreements made by it hereby,
indemnify, defend and hold Buyer harmless from and against all liability, loss
or damage (including any diminution in the value of the Shares), together with
all reasonable costs and expenses related thereto (including legal and
accounting fees and expenses), arising from the untruth, inaccuracy or breach of
any such representations, warranties, covenants or agreements of ITS contained
in this Agreement or the assertion of any claims relating to the foregoing.
4.06. Compliance with Contracts. ITS has performed all material
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obligations required to be performed by it as of the date of this Agreement
under each material contract, obligation, commitment, agreement, undertaking,
arrangement or lease referred to in this Agreement, and are not in default
hereunder. This Agreement and the actions contemplated thereby will not
conflict with, or result in a breach of the terms, conditions or provisions of
any such material agreement or cause any acceleration of maturity of any such
material agreements.
4.07. Compliance with Laws. ITS has substantially complied with all
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laws, regulations, judgments, decrees or orders of any court or governmental
agency or entity applicable in any material respect to the conduct of its
business.
4.08. Permits, Authorizations, Consents and Approvals; No Violations.
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To the best of its knowledge, neither the execution and delivery of this
Agreement by ITS nor the consummation by ITS of the transactions contemplated by
this Agreement will (a) conflict with or result in any breach of any provision
of the Articles of Incorporation or Bylaws of ITS, (b) result in a material
breach or default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license agreement, lease or other material contract,
other than the underwriting agreement, instrument or obligation to which ITS is
a party or by which ITS or any of its assets may be bound, (c) or violate in any
material respect any statute, rule, regulation, order, writ, injunction or
decree applicable to ITS or any of its assets, or (d) result in the creation of
any material (individually or in the aggregate) liens, charges or encumbrances
on any of the material assets of ITS.
4.09 Financial Statements of ITS. ITS has delivered to Promota a
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copy of its most recent Form SB-1 Filing with the US Securities and Exchange
Commission ("SEC") dated August 11, 2002, which Form SB-1 Filing contains the
reviewed balance sheet and income statements of ITS as of June 30, 2003 and an
audited statement of operations, stockholders equity and cash flows for the
fiscal years ended December 31, 2002 and December 30, 2001 (the "ITS
Financials"). The ITS Financials have been prepared in accordance with
generally accepted accounting principles, applied on a consistent basis
throughout the periods covered by such statements. The ITS Financials, with any
notes thereto, are in accordance with the books and records of ITS and present
fairly ITS's financial position and results of operations and cash flows as of
the dates and for the periods indicated therein.
4.10 Undisclosed Liabilities. ITS does not have any material
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liabilities, whether absolute, accrued, contingent or otherwise, and whether due
or to become due, except for those liabilities which (a) are accrued or fully
reserved against its balance sheet of the ITS Financials or (b) are of a
normally recurring nature and were incurred after June 30, 2003 in the ordinary
course of business consistent with past practice. Schedule 4.10 lists all
liabilities of ITS incurred after June 30, 2003 which are of a type required to
be disclosed or reflected in financial statements and which either (i) are not
in the ordinary course of business or (ii) exceed ten thousand ($10,000) Dollars
with respect to any single transaction or single series of transactions.
4.11 Ordinary Course. Since December 31, 2002, ITS has conducted
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its business only in the ordinary course and in a normal manner consistent with
past practice.
4.12 Dividend payments; Expenditures. ITS has not made any
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dividend payments or any other distribution on or with respect to its capital
stock, nor has it made any expenditures in excess of $10,000.00.
4.13 Value of the Shares. ITS represents that they have provided
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to Buyer all relevant documentation, and ITS has answered all questions with
regard thereto that Buyer deemed necessary or appropriate to evaluate the
business, operations and assets of ITS and the value of its common stock. Buyer
is relying solely on its own evaluation and analysis in determining the value of
the Shares and not on any representation of value or worth made by ITS.
5. Representations and Warranties of Buyer. Buyer hereby represents
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and warrants to the Company as follows:
5.01. Organization. Promota (a) is a corporation (i) duly organized,
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validly existing and in good standing under the laws of the State of Delaware,
and (ii) duly qualified and in good standing as a foreign corporation in each
state in which it does business, except where the failure to so qualify would
not have a materially adverse effect on its business or assets, and (b) has the
corporate power and authority to own its properties and to carry on its business
as now being conducted.
5.02. Authority, Binding Agreement. This Agreement has been approved
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by the Board of Directors and Shareholders of Promota. No consents,
authorizations or approvals, whether of a governmental agency or instrumentality
or otherwise, are necessary in order to enable Promota to enter into and perform
this Agreement. This Agreement constitutes legal, valid and binding obligations
of Promota and is enforceable against Promota in accordance with its terms.
5.03. Litigation. There is no suit, action or other legal or
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administrative proceeding pending or threatened against Promota, and to its
knowledge, no circumstances exist or have occurred which may lead to any suit,
action, proceeding or investigation which could materially and adversely affect
its business, assets or financial condition. Promota has received no notice from
any federal, state or local governmental agency asserting any violation by
Promota of any law, ordinance or regulation.
5.04. Review. Promota has received and reviewed to Promota's
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satisfaction such documents and corporate and financial records of ITS, and has
had answered all questions with regard thereto that Promota deemed necessary or
appropriate to evaluate the business, operation and assets of ITS.
6. Conditions to the Closing. The obligations of the Parties hereunder
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are subject to the satisfaction at by the Closing of each of the conditions set
forth below. Any of such conditions may be waived by the other party but only
in writing.
6.01. Compliance with Terms. On the Closing Date, all the terms,
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conditions and covenants of this Agreement to be complied with and performed by
the respective Parties shall have been complied with and performed in all
material respects.
6.02. No Material Change. (a) There shall be no material changes to
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the Representations and Warranties of Section 4 herein, nor shall be any
material change in the business, assets, liabilities or financial condition of
ITS.
(b) Promota shall send the Cash Contributions to the Company's New
York bank account, as described in 1.03(f).
6.03 Completion. Completion of the Closing of this transaction, as
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contemplated by this Agreement, shall be subject to the final completion of due
diligence by Promota Hellas, S.A., parent of Promota, as required by the
auditing and accounting standards of Promota Hellas, S.A., in order to ensure
regulatory compliance with the laws of European Union and of Greece.
7. Documents to be delivered at Closing.
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7.01 Deliverables of ITS. ITS at the Closing shall deliver to
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Promota the following documents in form and substance satisfactory to Promota's
counsel:
(a) a copy of all resolutions of the Board of Directors and of the
Shareholders of ITS authorizing the issuance and sale of the shares of
capital stock to be sold pursuant to this Agreement as well as all
resolutions authorizing the execution, delivery and performance of this
Agreement, attached hereto and made a part hereof as Exhibits A, B, C and
F.
7.02 Deliverables of Promota. Promota at the Closing shall
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deliver to ITS the following documents in form and substance satisfactory to
ITS's counsel:
(a) a copy of all resolutions of the Board of Directors and of the
Shareholders of Promota authorizing the Cash Contribution and purchase of
the shares of capital stock to be sold pursuant to this Agreement as well
as all resolutions authorizing the execution, delivery and performance of
this Agreement, attached hereto and made a part hereof as Exhibit D and
Exhibit E.
8. Indemnification.
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8.01 Obligation of the Board of Directors and Shareholders of ITS to
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Indemnify. The Board of Directors and shareholders of ITS, as of the date of
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this Agreement, jointly and severally, shall indemnify, defend and hold harmless
Promota and its shareholders, directors, officers, employees and agents and
their respective assigns from and against any and all liabilities, losses,
claims, damages, costs and expenses (including without limitation, court costs
and reasonable attorneys' fees) suffered, sustained, incurred or required to be
paid by any of Promota and its shareholders, directors, officers, employees and
agents and their respective assigns arising out of or in respect to any breach
or inaccuracy or any representation or warranty, or any failure to perform or
comply with any covenant or agreement, of the Company, contained in or made
pursuant to this Agreement.
9. Miscellaneous.
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9.01. Costs. Except as otherwise specifically provided herein,
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Promota shall be obligated to pay the Closing costs, transfer costs applicable
to this Agreement and the transfer of the Shares hereunder, and its own counsel
and all other legal fees and costs related thereto. Both Promota and ITS each
hold the other harmless from any obligation for the payment of any finder's fees
or commissions in connection with the transactions contemplated by this
Agreement as a result of any action of the indemnifying party.
9.02. Invalidity, Modification and Waiver. If any provision of this
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Agreement shall be held to be invalid or void, the remaining provisions shall
nevertheless remain in effect. No provision of this Agreement may be modified
and the performance or observance thereof may not be waived except by written
agreement of the parties affected thereby. No waiver of any violation or
nonperformance of any provision of this Agreement shall be deemed to be a waiver
of any subsequent violation or nonperformance of the same or any other provision
of this Agreement.
9.03. Complete Agreement. This Agreement constitutes the
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complete and exclusive statement of the agreement among the parties with respect
to the subject matter thereof. It supersedes all prior written and oral
statements, including any prior representation, statement, condition, or
warranty.
9.04. Applicable Law, Jurisdiction and Venue. All questions
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concerning the construction, validity, and interpretation of this Agreement and
the performance of the obligations imposed by this Agreement shall be governed
by the internal law, not the law of conflicts, of the State of New York. Any
suit involving any dispute or matter arising under this Agreement may only be
brought in a United States District Court located in the State of New York or
any New York State Court having jurisdiction over the subject matter of the
dispute or matter. All parties hereby consent to the exercise of personal
jurisdiction by any such court with respect to any such proceeding.
9.05. Article and Section Titles. The headings herein are
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inserted as a matter of convenience only and do not define, limit, or describe
the scope of this Agreement or the intent of the provisions hereof.
9.06. Binding Provisions. This Agreement is binding upon and
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inures to the benefit of, the parties hereto and there respective heirs,
executors, administrators, personal and legal representatives, successors, and
permitted assigns.
9.07. Terms. Common nouns and pronouns shall be deemed to refer
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to the masculine, feminine, neuter, singular, and plural, as the identity of the
Person may in the context require.
9.08. Separability of Provisions. Each Provision of this
----------------------------
Agreement shall be considered separable; and if, for any reason, any provision
or provisions herein are determined to be invalid and contrary to any existing
or future law, such invalidity shall not impair the operation of or affect those
portions of this Agreement, which are valid.
9.09. Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, each of which shall be deemed an original, and all of
which, when taken together, constitute one and the same document. The parties
may complete the Closing contemplated herein in separate locations, and at
differing times. The signature of any party to any counterpart shall be deemed
a signature to, and may be appended to, any other counterpart. Facsimile
signatures shall be acceptable in order to execute this Agreement.
9.10. Abandonment. If this Agreement shall fail to close as provided
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for in Section 3 as a result of a failure of any of the conditions precedent set
forth in Section 6, all further obligations of the parties hereto under this
Agreement shall terminate without further liability, and each party shall bear
its own costs incident to the negotiation, preparation and anticipated Closing
of this Agreement. In such event, each party shall return any data, material or
assets of the other party received by it in contemplation of the Closing.
9.11 Representation By Counsel. ITS represents herein that it
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has been fully and adequately represented by counsel in this transaction, having
received the advice and counsel from the Office of David Loev, Attorney at Law,
2777 Allen Parkway, Suite 1000, Houston, TX 77019. Promota represents herein
that it has been fully and adequately represented by counsel in this
transaction, having received that advice and counsel of the law firm of Eaton &
Van Winkle LLP, 3 Park Avenue, New York, NY 10016.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed by their respective authorized representative as of the date first
written above.
COMPANY
INTERNATIONAL TEST SYSTEMS, INC.
By: /s/ Carey G. Birmingham
---------------------------------
Name: Carey G. Birmingham
Title: President
BUYER
PROMOTA INTERNATIONAL, INC.
By: /s/ Mikael Dramytinos
---------------------------------
Name: Mikael Dramytinos
Title: President
As to provisions 1.03, 2.03, and 8.01
/s/ Carey Birmingham
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Carey Birmingham
BFP Texas, Inc.
By: /s/ Carey G. Birmingham
----------------------------
Its: President
/s/ Alex Yount
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Alex Yount
/s/ Youval Krigel
- -------------------------------
Youval Krigel
Pensar Technologies, LLC .
By: /s/ Carey G. Birmingham
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Its: President
EXHIBITS
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EXHIBIT A -- Waiver of Notice and Written Consent to Action By the
Board of Directors in Lieu of a Special Meeting (International Test Systems,
Inc.) - Appointing New Directors and accepting the resignation of Directors;
Unanimous Written Consent To Action by the Board of Directors appointing new
Officers
EXHIBIT B - Unanimous Written Consent to Action By the Board of Directors in
Lieu of a Special Meeting (International Test Systems, Inc.)
EXHIBIT C - Waiver of Notice and Written Consent to Action By the
Stockholders in Lieu of a Special Meeting (International Test Systems, Inc.)
EXHIBIT D - Unanimous Written Consent to Action By the Board of Directors in
Lieu of a Special Meeting (Promota International, Inc.)
EXHIBIT E - Waiver of Notice and Unanimous Written Consent to Action By the
Sole Stockholder in Lieu of a Special Meeting (Promota International, Inc.)
EXHIBIT F - Resolution by the Board of Directors authorizing an employment
agreement for Carey Birmingham (International Test Systems, Inc.)
EXHIBIT A
INTERNATIONAL TEST SYSTEMS, INC.
A Delaware Corporation
UNANIMOUS WRITTEN CONSENT TO ACTION
BY THE BOARD OF DIRECTORS
IN LIEU OF A SPECIAL MEETING
----------------------------
Pursuant to subsection (f) of Section 141 of the General Corporation Law of
the State of Delaware, the undersigned, being the sole director of International
Test Systems, Inc. (hereinafter, the "Corporation") hereby consent that the
following resolutions be, and the same hereby are, adopted as resolutions and
actions of the Board of Directors of the Corporation and that such resolutions
and actions shall have all of the force and effect that they would have if duly
adopted at a formal meeting of the directors of the Corporation:
WHEREAS, pursuant that certain Stock Purchase Agreement by and between the
Corporation and Promota International, Inc. ("Promota"), H. Alexander Yount and
H. Youval Krigel, two members of the Board of Directors of the Corporation (the
"Directors"), are required to resign; and
WHEREAS, the Directors of the Corporation have tendered their resignations
as members of the Board of Directors, which are annexed and made a part hereof,
effective upon acceptance by the Corporation; and
WHEREAS, the Corporation wishes to increase the number of directors
entitled to serve on the Board of Directors of the Corporation from three (3) to
four (4) and to fix such number of directors at four (4); and
WHEREAS, the Corporation wishes to appoint and elect new directors to
replace the Directors and to fill such newly created directorship;
NOW, THEREFORE, BE IT RESOLVED, THAT, the resignation of the Directors of
the Corporation, be, and hereby is, accepted and approved, and are effective as
of the date hereof; and be it further
RESOLVED, THAT, the number of directors entitled to serve on the Board of
Directors of the Corporation shall be, and hereby is, increased from three (3)
directors to four (4) directors; and be it further
RESOLVED, THAT, the number of directors entitled to serve on the Board of
Directors be and hereby is fixed at four (4); and be it further
RESOLVED, THAT, the following persons be, and hereby are, elected and
appointed as directors of the Corporation until such time as they shall resign
or be removed in accordance with the By-laws of the Corporation or until their
respective successor has been duly elected and qualified:
Mike Dramytinos
Warren A. Kirshenbaum
Christos Mouroutis
IN WITNESS WHEREOF, the undersigned being all of the directors of the
Corporation, have hereunto subscribed their names this 6th day of November 2003.
/S/ Carey G. Birmingham
-------------------------------
Carey G. Birmingham
October 31st, 2003
TO THE BOARD OF DIRECTORS AND STOCKHOLDERS OF INTERNATIONAL TEST SYSTEMS, INC.
Pursuant to the Stock Purchase Agreement, entered into by and between
International Test Systems, Inc. (the "Corporation") and Promota International,
Inc., I hereby tender my resignation as a member of the Board of Directors of
the Corporation, effective acceptance by the Corporation.
Very truly yours,
/s/ H. Alexander Yount
- -----------------------------
H. Alexander Yount
October 31st, 2003
TO THE BOARD OF DIRECTORS AND STOCKHOLDERS OF INTERNATIONAL TEST SYSTEMS, INC.
Pursuant to the Stock Purchase Agreement, entered into by and between
International Test Systems, Inc. (the "Corporation") and Promota International,
Inc., I hereby tender my resignation as a member of the Board of Directors of
the Corporation, effective acceptance by the Corporation.
Very truly yours,
/s/ H. Youval Krigel
- -----------------------------
H. Youval Krigel
INTERNATIONAL TEST SYSTEMS, INC.
A Delaware Corporation
UNANIMOUS WRITTEN CONSENT TO ACTION
BY THE BOARD OF DIRECTORS
IN LIEU OF A SPECIAL MEETING
----------------------------
Pursuant to subsection (f) of Section 141 of the General Corporation Law of
the State of Delaware, the undersigned, being all of the directors of
International Test Systems, Inc. (hereinafter, the "Corporation") hereby consent
that the following resolutions be, and the same hereby are, adopted as
resolutions and actions of the Board of Directors of the Corporation and that
such resolutions and actions shall have all of the force and effect that they
would have if duly adopted at a formal meeting of the directors of the
Corporation:
WHEREAS, the Corporation wishes to appoint certain persons as officers of
the Corporation;
NOW, THEREFORE, BE IT RESOLVED THAT, the following persons be, and hereby
are, elected as officers of the Corporation, to serve in the offices set forth
opposite their respective names below until the next annual meeting of the Board
of Directors or until their respective successors have been duly elected and
qualified:
Mike Dramytinos President
Christos Mouroutis Executive Vice-President
Carey G. Birmingham Executive Vice-President
The remainder of this page is intentionally left blank.
IN WITNESS WHEREOF, the undersigned being all of the directors of the
Corporation, have hereunto subscribed their names this 6th day of November
2003.
/s/ Mike Dramytinos
----------------------------
Mike Dramytinos
/s/ Christos Mouroutis
----------------------------
Christos Mouroutis
/s/ Warren A. Kirshenbaum
----------------------------
Warren A. Kirshenbaum
/s/ Carey G. Birmingham
----------------------------
Carey G. Birmingham
EXHIBIT B
INTERNATIONAL TEST SYSTEMS, INC.
A Delaware Corporation
UNANIMOUS WRITTEN CONSENT TO ACTION
BY THE BOARD OF DIRECTORS
IN LIEU OF A SPECIAL MEETING
----------------------------
Pursuant to subsection (b) of Section 242 of the General Corporation Law of
the State of Delaware, the undersigned, being all the directors of International
Test Systems, Inc. (hereinafter, the "Corporation") hereby consent that the
following resolutions be, and the same hereby are, adopted as resolutions and
actions of the Board of Directors of the Corporation and that such resolutions
and actions shall have all of the force and effect that they would have if duly
adopted at a formal meeting of the directors of the Corporation:
WHEREAS, the Corporation wishes to issue an additional nineteen million
eight hundred fifty thousand (19,850,000) shares of its capital stock (the
"Shares") and sell the entire amount of the Shares to Promota International,
Inc. ("Promota") in exchange for a capital contribution of two hundred fifty
thousand dollars ($250,000.00), as more specifically described in the attached
Stock Purchase Agreement, which is annexed and made a part hereof.
NOW, THEREFORE, BE IT RESOLVED, THAT, the Corporation issue the Shares to
Promota in exchange for a capital contribution of two hundred fifty thousand
dollars ($250,000.00); and
FURTHER RSOLVED, THAT, the Stock Purchase Agreement be, and hereby is,
approved and adopted, in order to effectuate sale of the Shares to Promota; and
FURTHER, RESOLVED, THAT, the President of the Corporation be, and hereby
is, authorized to execute and deliver, in the name and on behalf of the
Corporation, the Stock Purchase Agreement.
The remainder of this page is intentionally left blank.
IN WITNESS WHEREOF, the undersigned being all of the directors of the
Corporation, have hereunto subscribed their names this 23rd day of October 2003.
/S/ Carey G. Birmingham
-----------------------------
Carey G. Birmingham
/S/ H. Alexander Yount
------------------------------
H. Alexander Yount
/S/ H. Youval Krigel
------------------------------
H. Youval Krigel
EXHIBIT C
INTERNATIONAL TEST SYSTEMS, INC.
A Delaware Corporation
WAIVER OF NOTICE
AND
WRITTEN CONSENT TO ACTION
BY THE STOCKHOLDERS
IN LIEU OF A SPECIAL MEETING
----------------------------
Pursuant to Section 229 and subsection (a) of Section 228 of the General
Corporation Law of the State of Delaware, the undersigned, being a majority of
the stockholders of International Test Systems, Inc. (hereinafter, the
"Corporation") hereby waive notice of meeting and consent that the following
resolutions be, and the same hereby are, adopted as resolutions and actions of
the stockholders of the Corporation and that such resolutions and actions shall
have all of the force and effect that they would have if duly adopted at a
formal meeting of the stockholders of the Corporation:
WHEREAS, the Corporation wishes to issue an additional nineteen million
eight hundred fifty thousand (19,850,000) shares of its capital stock (the
"Shares") and sell the entire amount of the Shares to Promota International,
Inc. ("Promota") in exchange for a capital contribution of two hundred fifty
thousand dollars ($250,000.00), as more specifically described in the attached
Stock Purchase Agreement, which is annexed and made a part hereof.
NOW, THEREFORE, BE IT RESOLVED, THAT, the Corporation issue the Shares to
Promota in exchange for a capital contribution of two hundred fifty thousand
dollars ($250,000.00); and
FURTHER RSOLVED, THAT, the Stock Purchase Agreement be, and hereby is,
approved and adopted, in order to effectuate sale of the Shares to Promota; and
FURTHER RESOLVED, THAT, the Board of Directors is authorized to take any
and all action necessary to consummate the transaction contemplated by the Stock
Purchase Agreement; and
FURTHER, RESOLVED, THAT, by executing this Waiver of Notice and Unanimous
Written Consent, the stockholders hereby acknowledge and agree to the terms and
conditions of the Stock Purchase Agreement.
The remainder of this page is intentionally left blank.
IN WITNESS WHEREOF, the undersigned being a majority of the stockholders of
the Corporation, have hereunto subscribed their names this 23rd day of October
2003.
No. of Shares
Signature and Name as of 9/26/03
-------------------- -----------------
/s/ Carey G. Birmingham 81,000
- --------------------------------
BFP Texas Ltd.
Carey G. Birmingham, GP
/s/ Carey G. Birmingham 331,500
- --------------------------------
Carey G. Birmingham
/s/ Carey G. Birmingham 250,000
- --------------------------------
Pensar Technologies, LLC
Carey G. Birmingham, President
/s/ H. Youval Krigel 100,000
- --------------------------------
H. Youval Krigel
/s/ H. Alex Yount 100,000
- --------------------------------
H. Alex Yount
225,000
- --------------------------------
R. Scott Barter
266,900
- --------------------------------
Unifund Financial Group, Inc.
R. Scott Barter, President
EXHIBIT D
PROMOTA INTERNATIONAL, INC.
A Delaware Corporation
UNANIMOUS WRITTEN CONSENT TO ACTION
BY THE BOARD OF DIRECTORS
IN LIEU OF A SPECIAL MEETING
----------------------------
Pursuant to subsection (b) of Section 242 of the General Corporation Law of
the State of Delaware, the undersigned, being all the directors of Promota
International, Inc. (hereinafter, the "Corporation") hereby consent that the
following resolutions be, and the same hereby are, adopted as resolutions and
actions of the Board of Directors of the Corporation and that such resolutions
and actions shall have all of the force and effect that they would have if duly
adopted at a formal meeting of the directors of the Corporation:
WHEREAS, the Corporation wishes to purchase an additional nineteen million
eight hundred fifty thousand (19,850,000) shares of capital stock (the "Shares")
of International Test Systems, Inc. ("ITS") in exchange for a capital
contribution of two hundred fifty thousand dollars ($250,000.00), as more
specifically described in the attached Stock Purchase Agreement, which is
annexed and made a part hereof.
NOW, THEREFORE, BE IT RESOLVED, THAT, the Corporation purchase the Shares
from ITS in exchange for a capital contribution of two hundred fifty thousand
dollars ($250,000.00); and
FURTHER RSOLVED, THAT, the Stock Purchase Agreement be, and hereby is,
approved
and adopted, in order to effectuate purchase of the Shares from ITS; and
FURTHER, RESOLVED, THAT, the President of the Corporation be, and hereby
is, authorized to execute and deliver, in the name and on behalf of the
Corporation, the Stock Purchase Agreement.
The remainder of this page is intentionally left blank.
IN WITNESS WHEREOF, the undersigned being all of the directors of the
Corporation, have hereunto subscribed their names this 23rd day of October 2003.
/s/ Mikael Dramytinos
- --------------------------------------
Mikael Dramytinos, President, Director
/s/ Christos Mouroutis
- --------------------------------------
Christos Mouroutis, Director
EXHIBIT E
PROMOTA INTERNATIONAL, INC.
A Delaware Corporation
WAIVER OF NOTICE
AND
UNANIMOUS WRITTEN CONSENT TO ACTION
BY THE SOLE STOCKHOLDER
IN LIEU OF A SPECIAL MEETING
----------------------------
Pursuant to Section 229 and subsection (a) of Section 228 of the General
Corporation Law of the State of Delaware, the undersigned, being the sole
stockholder of Promota International, Inc. (hereinafter, the "Corporation")
hereby waive notice of meeting and consent that the following resolutions be,
and the same hereby are, adopted as resolutions and actions of the stockholders
of the Corporation and that such resolutions and actions shall have all of the
force and effect that they would have if duly adopted at a formal meeting of the
stockholders of the Corporation:
WHEREAS, the Corporation wishes to purchase an additional nineteen million
eight hundred fifty thousand (19,850,000) shares of capital stock (the "Shares")
of International Test Systems, Inc. ("ITS") in exchange for a capital
contribution of two hundred fifty thousand dollars ($250,000.00), as more
specifically described in the attached Stock Purchase Agreement, which is
annexed and made a part hereof.
NOW, THEREFORE, BE IT RESOLVED, THAT, the Corporation purchase the Shares
from ITS in exchange for a capital contribution of two hundred fifty thousand
dollars ($250,000.00); and
FURTHER RSOLVED, THAT, the Stock Purchase Agreement be, and hereby is,
approved and adopted, in order to effectuate purchase of the Shares from ITS;
and
FURTHER RESOLVED, THAT, the Board of Directors is authorized to take any
and all action necessary to consummate the transaction contemplated by the Stock
Purchase Agreement; and
FURTHER, RESOLVED, THAT, by executing this Waiver of Notice and Unanimous
Written Consent, the stockholders hereby acknowledge and agree to the terms and
conditions of the Stock Purchase Agreement.
The remainder of this page is intentionally left blank.
IN WITNESS WHEREOF, the undersigned being the sole stockholder of the
Corporation, has hereunto subscribed their names this 23rd day of October 2003.
PROMOTA HELLAS, S.A.
By: /s/ Mikael Dramytinos
-----------------------------
Name: Mikael Dramytinos
Title: President
EXHIBIT F
INTERNATIONAL TEST SYSTEMS, INC.
A Delaware Corporation
UNANIMOUS WRITTEN CONSENT TO ACTION
BY THE BOARD OF DIRECTORS
IN LIEU OF A SPECIAL MEETING
----------------------------
Pursuant to subsection (b) of Section 242 of the General Corporation Law of
the State of Delaware, the undersigned, being a majority of the directors of
International Test Systems, Inc. (hereinafter, the "Corporation") hereby consent
that the following resolutions be, and the same hereby are, adopted as
resolutions and actions of the Board of Directors of the Corporation and that
such resolutions and actions shall have all of the force and effect that they
would have if duly adopted at a formal meeting of the directors of the
Corporation:
WHEREAS, the Corporation has previously entered into an Executive
Employment Agreement with Carey G. Birmingham ("Birmingham"), with an effective
date upon the Corporation raising $125,000.00, whereby Birmingham would serve as
the Corporation's President and Chief Executive Officer;
WHEREAS, pursuant to that certain Stock Purchase Agreement by and between
the Corporation and Promota International, Inc., a copy of which is attached
hereto, the Executive Employment Agreement, is to be amended to reflect a term
of two (2) years, so long as the Company has received from parties other than
Promota capital of at least one hundred twenty five thousand ($125,000) Dollars
within six months of the date of execution of the Stock Purchase Agreement, with
an effective date of October 23, 2003, to include provisions whereby
Birmingham's salary shall be $55,000 during the first year of the term and
$65,000 during the second year of the term and whereby Birmingham shall serve as
the Corporation's Executive Vice-President for Real Estate and Retail
Development; and
WHEREAS, Birmingham, being a director of the Corporation, shall abstain
from voting for and consenting to the following resolution.
NOW, THEREFORE, BE IT RESOLVED, THAT, the Executive Employment Agreement,
entered into between the Corporation and Birmingham, as amended, as contemplated
in the Stock Purchase Agreement, be, and hereby is, approved and adopted.
The remainder of this page is intentionally left blank.
IN WITNESS WHEREOF, the undersigned being all of the directors of the
Corporation, have hereunto subscribed their names this 23rd day of October
2003.
/s/ H. Alexander Yount
----------------------------
H. Alexander Yount
/s/ H. Youval Krigel
----------------------------
H. Youval Krigel
Schedule 1.01
Accounts Payable
a/o Close of Business 9/25/03
Payee Business Purpose Amount
AT&T Telephone $ 424.36
SBC Communications Telephone/Internet $ 202.68
Purchase Power Postage $ 150.00
PBCC Postage Meter $ 171.89
Dell Financial Services Computer Hardware $ 105.95
American Express Office Expense $ 1,339.86
David Loev Legal $ 6,828.25
Malone Accounting $ 3,670.00
Bexar County Property Taxes $ 561.00
BFP Texas October Rent $ 150.00
BFP Texas October Expenses $ 200.00
US Bank Credit Card $ 250.00
DHL Shipping Postage $ 104.41
$14,158.40
Reimbursed from Officers $(1,116.00)
Net Payables $13,042.40
Schedule 4.04
-------------
Litigation
----------
NONE
Schedule 4.10
-------------
Undisclosed Liabilities
-----------------------
NONE