EXHIBIT 10.8
ACQUISITION AGREEMENT, DATED SEPTEMBER 15, 1998
BY AND BETWEEN COMPANY AND NETSOL
ACQUISITION AGREEMENT
BY AND AMONG
MIRAGE HOLDINGS, INC.,
ON THE ONE HAND
AND
XXXXX XXXXXX AND OTHERS,
NETWORK SOLUTIONS (PVT) LIMITED, AND
NETSOL (U.K.) LIMITED,
ON THE OTHER
TABLE OF CONTENTS
ARTICLE 1
SALE AND ISSUANCE OF SHARES AND OTHER TERMS......................................... 1
1.1 Issuance of the Shares...................................................... 1
1.2 Consideration and Payment for the Shares.................................... 1
ARTICLE 2
REPRESENTATIONS AND WARRANTIES...................................................... 2
2.1 Representations and Warranties of SGO, NetSol Pvt, and NetSol UK............ 2
2.1.1 Organization, Standing, Power........................................ 2
2.1.2 Authority............................................................ 2
2.1.3 Capitalization of NetSol Pvt and NetSol UK........................... 2
2.1.4 Subsidiaries......................................................... 3
2.1.5 No Defaults.......................................................... 3
2.1.6 Governmental Consents................................................ 3
2.1.7 Financial Statements................................................. 4
2.1.8 Liabilities.......................................................... 4
2.1.9 Absence of Undisclosed Liabilities................................... 4
2.1.10 Absence of Changes................................................... 4
2.1.11 Patents and Trademarks............................................... 5
2.1.12 Certain Agreements................................................... 5
2.1.13 Compliance with Other Instruments.................................... 5
2.1.14 Employee Benefit Plans............................................... 5
2.1.15 Other Personal Property.............................................. 6
2.1.16 Properties and Liens................................................. 6
2.1.17 Inventory............................................................ 6
2.1.18 Major Contracts...................................................... 6
2.1.19 Questionable Payments................................................ 7
2.1.20 Recent Transactions.................................................. 7
2.1.21 Leases in Effect..................................................... 7
2.1.22 Environmental........................................................ 8
2.1.23 Taxes................................................................ 8
2.1.24 Disputes and Litigation.............................................. 9
2.1.25 Compliance with Laws................................................. 9
2.1.26 Related Party Transactions........................................... 9
2.1.27 Insurance............................................................ 9
2.1.28 Minute Books......................................................... 9
2.1.29 Disclosure........................................................... 9
2.1.30 Reliance............................................................. 10
2.2 Representations and Warranties of Mirage.................................... 10
2.2.1 Organization, Standing, Power........................................ 10
2.2.2 Authority............................................................ 10
2.2.3 No Defaults.......................................................... 10
2.2.4 Disclosure........................................................... 10
2.25 Independent Investigation............................................ 11
2.2.6 Reliance............................................................. 11
ARTICLE 3
CONDITIONS PRECEDENT................................................................ 11
3.1 Conditions to Each Party's Obligations...................................... 11
3.2 Conditions to Mirage's Obligations.......................................... 11
3.3 Conditions to SGO, NetSol Pvt, and NetSol UK's Obligations.................. 12
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ARTICLE 4
COVENANTS........................................................................... 13
4.1 Corporate Structure of NetSol Pvt and NetSol UK............................. 13
4.2 Composition of the Board of Directors of NetSol Pvt......................... 13
4.3 Board Seat on the Board of Mirage........................................... 13
ARTICLE
CLOSING AND DELIVERY OF DOCUMENTS................................................... 13
5.1 Time and Place.............................................................. 13
5.2 Deliveries by SGO, NetSol Pvt, and NetSol UK ............................... 13
5.3 Deliveries by Mirage........................................................ 14
ARTICLE 6
INDEMNIFICATION..................................................................... 14
6.1 SGO, NetSol Pvt, and NetSol UK's Indemnity.................................. 14
6.2 Mirage's Indemnity.......................................................... 14
ARTICLE 7
DEFAULT, AMENDMENT AND WAIVER....................................................... 15
7.1 Default..................................................................... 15
7.2 Waiver and Amendment........................................................ 15
ARTICLE 8
MISCELLANEOUS....................................................................... 15
8.1 Expenses.................................................................... 15
8.2 Notices..................................................................... 16
8.3 Entire Agreement............................................................ 16
8.4 Survival of Representations................................................. 17
8.5 Incorporated by Reference................................................... 17
8.6 Remedies Cumulative......................................................... 17
8.7 Execution of Additional Documents........................................... 17
8.8 Finders' and Related Fees................................................... 17
8.9 Governing Law............................................................... 17
8.10 Forum....................................................................... 17
8.11 Professional Fees........................................................... 17
8.12 Binding Effect and Assignment............................................... 18
8.13 Counterparts; Facsimile Signatures.......................................... 18
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TABLE OF SCHEDULES AND EXHIBITS
Exhibit A List of Shareholders Entering Into This Agreement
Exhibit B Opinion Letter
Exhibit C SGO, NetSol PVT, and NetSol UK Disclosure Schedule
Exhibit D Mirage Disclosure Schedule
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated as of September 15,
1998, is by and between MIRAGE HOLDINGS, INC., a Nevada corporation
("Mirage"), on the one hand and XXXXX XXXXXX AND OTHERS as listed on Exhibit
A ("SGO") who are shareholders of NETWORK SOLUTIONS (PVT) LIMITED, a Pakistan
corporation ("NetSol Pvt") and who are also shareholders of NETSOL (U.K.)
LIMITED, a corporation organized under the laws of the United Kingdom
("NetSol UK"), on the other (collectively, the "Parties").
R E C I T A L S
A. The capital stock of NetSol Pvt consists of 20,000 authorized shares
of Common Stock, par value Rs. 100 (the "NetSol Pvt Shares"), of which 400
are currently issued and outstanding. SGO currently owns 400 NetSol Pvt
Shares.
B. The capital stock of NetSol UK consists of 1,000 authorized shares
of Common Stock, par value L1 (the "NetSol UK Shares"), of which 100 are
currently issued and outstanding. SGO currently owns 100 NetSol UK Shares.
C. Upon the terms and conditions set forth below, SGO desires to issue
that certain number of NetSol Pvt Shares to Mirage to constitute 51% of the
issued and outstanding common stock of NetSol Pvt, such that, following such
transaction, NetSol Pvt will be a majority owned subsidiary of Mirage.
D. Upon the terms and conditions set forth below, SGO desires to issue
that certain number of NetSol UK Shares to Mirage to constitute 51% of the
85% of the issued and outstanding common stock of NetSol UK owned by SGO,
such that, following such transaction, NetSol UK will be a 43% owned
subsidiary of Mirage. The NetSol Pvt Shares and the NetSol UK Shares which
are the subject of this Agreement, may be referred to collectively as the
"Shares" herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the Parties
hereto agree as follows:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 ISSUANCE OF THE SHARES. Subject to the terms and conditions
herein set forth, and on the basis of the representations, warranties and
agreements herein contained, SGO shall sell and transfer to Mirage that
certain number of NetSol Pvt Shares that will constitute 51% of the issued
and outstanding common stock of NetSol Pvt and shall sell and transfer to
Mirage that certain number of NetSol UK Shares that will constitute 43% of
the issued and outstanding common stock of NetSol UK. Mirage shall have
antidilution protection on its 51% ownership of NetSol Pvt and on its 43%
ownership of NetSol UK, such that Mirage shall retain its respective
ownership percentages regardless of any future stock issuance(s) of NetSol
Pvt and/or NetSol UK, until such time as the Parties may agree otherwise in
writing. If, for any reason whatsoever, NetSol Pvt and/or NetSol UK issues
shares of their capital stock which have the effect of reducing Mirage's
percentage of ownership, NetSol Pvt and/or NetSol UK shall concurrently issue
additional shares of capital stock to Mirage in an amount which will restore
Mirage's percentage of ownership.
1.2 CONSIDERATION AND PAYMENT FOR THE SHARES. In consideration for the
Shares, Mirage shall pay a purchase price of a total of Seven Hundred
Seventy-Five Thousand and no/100 Dollars ($775,000.00) plus 490,000 of the
current outstanding shares of common stock of Mirage (the "Purchase Price"),
payable as follows:
(a) SGO hereby acknowledges receipt of $275,000 already paid by
Mirage.
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(b) The balance of the cash Purchase Price of $500,000 shall be
paid at the Closing (hereinafter defined) to be wired to SGO as per their
wiring instructions.
(c) Mirage shall issue to SGO, in whatever designation SGO
requests, a stock certificate(s) equal to 490,000 shares of the current
outstanding common stock of Mirage as of the date hereof.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SGO, NETSOL PVT, AND NETSOL UK.
Except as disclosed in a document referring specifically to the
representations and warranties in this Agreement that identifies by section
number the section and subsection to which such disclosure relates and is
delivered by SGO, NetSol Pvt, and NetSol UK to Mirage prior to the execution
of this Agreement (the "SGO, NetSol Pvt, and NetSol UK Disclosure Schedule"),
SGO, NetSol Pvt, and NetSol UK represent and warrant to Mirage, as of the
date hereof and as of the Closing, as follows:
2.1.1 ORGANIZATION, STANDING, POWER.
(a) NETSOL PVT. NetSol is a corporation duly organized,
validly existing, and in good standing under the laws of the country of
Pakistan. It has all requisite corporate power, franchises, licenses,
permits, and authority to own its properties and assets and to carry on its
business as it has been and is being conducted. NetSol is duly qualified and
in good standing to do business in each jurisdiction in which a failure to so
qualify would have a Material Adverse Effect (as defined below) on NetSol
Pvt. For purposes of this Agreement, the term "Material Adverse Effect" means
any change or effect that, individually or when taken together with all other
such changes or effects which have occurred prior to the date of
determination of the occurrence of the Material Adverse Effect, is or is
reasonably likely to be materially adverse to the business, assets (including
intangible assets), financial condition, or results of operations of the
entity.
(b) NETSOL UK. NetSol UK is a corporation duly organized,
validly existing, and in good standing under the laws of the United Kingdom.
It has all requisite corporate power, franchises, licenses, permits, and
authority to own its properties and assets and to carry on its business as it
has been and is being conducted. NetSol UK is duly qualified and in good
standing to do business in each jurisdiction in which a failure to so qualify
would have a Material Adverse Effect (as defined below) on NetSol UK. For
purposes of this Agreement, the term "Material Adverse Effect" means any
change or effect that, individually or when taken together with all other
such changes or effects which have occurred prior to the date of
determination of the occurrence of the Material Adverse Effect, is or is
reasonably likely to be materially adverse to the business, assets (including
intangible assets), financial condition, or results of operations of the
entity.
2.1.2 AUTHORITY. SGO, NetSol Pvt, and NetSol UK have all
requisite power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery by SGO,
NetSol Pvt, and NetSol UK of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the parts of SGO, NetSol Pvt, and NetSol UK, including the approval
of the Board of Directors of NetSol Pvt and NetSol UK. This Agreement has
been duly executed and delivered by SGO, NetSol Pvt, and NetSol UK and
constitutes a valid and binding obligation of SGO, NetSol Pvt, and NetSol UK
enforceable in accordance with its terms, except that such enforceability may
be subject to: (i) bankruptcy, insolvency, reorganization, or other similar
laws relating to enforcement of creditors' rights generally; and (ii) general
equitable principles. Subject to the satisfaction of the conditions set forth
in Article 3 below, the execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby will not, conflict
with or result in any violation of, or default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancellation, or acceleration of any obligation, or to loss of a material
benefit under, or the creation of a lien, pledge, security interest, charge,
or other encumbrance on any assets of SGO, NetSol Pvt, or NetSol UK (any
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such conflict, violation, default, right, loss, or creation being referred to
herein as a "Violation") pursuant to: (i) any provision of the organization
documents of NetSol Pvt and NetSol UK; or (ii) any loan or credit agreement,
note, bond, mortgage, indenture, contract, lease, or other agreement, or
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule, or regulation applicable to SGO, NetSol Pvt,
and NetSol UK's respective properties or assets, other than, in the case of
(ii), any such Violation which individually or in the aggregate would not
have a Material Adverse Effect on SGO, NetSol Pvt, and/or NetSol UK.
2.1.3 CAPITALIZATION OF NETSOL PVT AND NETSOL UK.
(a) NETSOL PVT. The authorized equity securities of
NetSol Pvt consist of 20,000 shares of NetSol Pvt Common Stock, Rs. 100 par
value, of which 400 shares are currently issued or outstanding. SGO currently
owns 400 NetSol Pvt Shares.
(b) NETSOL UK. The capital stock of NetSol UK consists of
1,000 authorized shares of Common Stock, par value (pound)1 (the "NetSol UK
Shares"), of which 100 are currently issued and outstanding. SGO currently
owns 100 NetSol UK Shares.
(b) Upon issuance pursuant to the terms of this
Agreement, the Shares will be duly and validly issued, fully paid and
nonassessable, and issued in accordance with the registration or
qualification provisions of the Securities Act of 1933, as amended (the
"Securities Act"), and any relevant state securities laws or pursuant to
valid exemptions therefrom. The Shares are free of restrictions on transfer
other than restrictions on transfer as set forth in the SGO, NetSol Pvt, and
NetSol UK Disclosure Schedule and under applicable state and federal
securities laws. The Shares shall be issued in a private transaction and
consequently will be deemed to be "Restricted Securities" as set forth in
Rule 144 promulgated under the Securities Act of 1933, as amended.
(c) Except as set forth on the SGO, NetSol Pvt, and
NetSol UK Disclosure Schedule, there are no options, warrants, rights, calls,
commitments, plans, contracts, or other agreements of any character granted
or issued by SGO, NetSol Pvt, or NetSol UK which provide for the purchase,
issuance, or transfer of any additional shares of the capital stock of NetSol
Pvt or NetSol UK nor are there any outstanding securities granted or issued
by NetSol Pvt or NetSol UK that are convertible into any shares of the equity
securities of NetSol Pvt or NetSol UK, and none is authorized. Neither NetSol
Pvt nor NetSol UK has outstanding any bonds, debentures, notes, or other
indebtedness the holders of which have the right to vote (or convertible or
exercisable into securities having the right to vote) with holders of NetSol
Pvt or NetSol UK capital stock on any matter.
(d) Except as set forth on the SGO, NetSol Pvt, and
NetSol UK Disclosure Schedule, neither SGO nor NetSol Pvt nor NetSol UK is a
party or subject to any agreement or understanding, and, to the best of SGO,
NetSol Pvt, and NetSol UK's knowledge, there is no agreement or understanding
between any persons and/or entities, which affects or relates to the voting
or giving of written consents with respect to any security or by a
shareholder or director of NetSol Pvt or NetSol UK.
(e) Except as set forth on the SGO, NetSol Pvt, and
NetSol UK Disclosure Schedule, neither NetSol Pvt nor NetSol UK has granted
or agreed to grant any registration rights, including piggyback rights, to
any person or entity.
2.1.4 SUBSIDIARIES. "Subsidiary" or "Subsidiaries" means all
corporations, trusts, partnerships, associations, joint ventures, or other
Persons, as defined below, of which NetSol Pvt or NetSol UK or any other
Subsidiary of NetSol Pvt or NetSol UK owns not less than twenty percent (20%)
of the voting securities or other equity or of which NetSol Pvt or NetSol UK
or any other Subsidiary of NetSol Pvt or NetSol UK possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies, whether through ownership of voting shares, management contracts,
or otherwise. "Person" means any individual, corporation, trust, association,
partnership, proprietorship, joint venture, or other entity. There are no
Subsidiaries of NetSol Pvt nor or NetSol UK.
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2.1.5 NO DEFAULTS. Neither SGO nor NetSol Pvt nor NetSol UK has
received notice that they would be with the passage of time, in default or
violation of any term, condition, or provision of: (i) the Articles of
Incorporation or Bylaws of NetSol Pvt or NetSol UK; (ii) any judgment,
decree, or order applicable to SGO, NetSol Pvt, or NetSol UK; or (iii) any
loan or credit agreement, note, bond, mortgage, indenture, contract,
agreement, lease, license, or other instrument to which SGO, NetSol Pvt, or
NetSol UK is now a party or by which it or any of its properties or assets
may be bound, except for defaults and violations which, individually or in
the aggregate, would not have a Material Adverse Effect on SGO, NetSol Pvt,
or NetSol UK.
2.1.6 GOVERNMENTAL CONSENTS. Any consents, approvals, orders, or
authorizations of or registrations, qualifications, designations,
declarations, or filings with or exemptions by (collectively "Consents"), any
court, administrative agency, or commission, or other federal, state, or
local governmental authority or instrumentality, whether domestic or foreign
(each a "Governmental Entity"), which may be required by or with respect to
NetSol Pvt and/or NetSol UK in connection with the execution and delivery of
this Agreement or the consummation by the Parties of the transactions
contemplated hereby, except for such Consents which if not obtained or made
would not have a Material Adverse Effect on NetSol Pvt or NetSol UK for the
transactions contemplated by this Agreement, are the responsibility of NetSol
Pvt and NetSol UK. NetSol Pvt and NetSol UK hereby represent and warrant that
such Consents have been obtained by them.
2.1.7 FINANCIAL STATEMENTS. NetSol Pvt and NetSol UK have
furnished Mirage with a true and complete copy of their financial statements
for the period ending June 30, 1998 (the "Financial Statements"), which
comply as to form in all material respects with all applicable accounting
requirements with respect thereto and have been prepared internally and
fairly present the financial positions of NetSol Pvt and NetSol UK as at the
dates thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal,
recurring audit adjustments not material in scope or amount). There has been
no change in NetSol Pvt's nor NetSol UK's accounting policies or the methods
of making accounting estimates or changes in estimates that are material to
the Financial Statements, except as described in the notes thereto.
2.1.8 LIABILITIES. As of the Closing, the Liabilities (as defined
below) of NetSol Pvt shall not be greater than Rs. 848,484 and the
Liabilities (as defined below) of NetSol UK shall not be greater than
$______. "Liabilities" as used herein shall mean all debt, liabilities, or
obligations of any nature, whether absolute, accrued, or contingent,
including, without limitation, accounts payable, accrued employee benefits,
accrued taxes payable, and debt instruments.
2.1.9 ABSENCE OF UNDISCLOSED LIABILITIES. Neither NetSol Pvt nor
NetSol UK has any liabilities or obligations (whether absolute, accrued, or
contingent) except: (i) Liabilities that are accrued or reserved against in
the Financial Statements as of June 30, 1998 or reflected in the notes
thereto; or (ii) additional Liabilities reserved against since June 30, 1998
that (x) have arisen in the ordinary course of business; (y) are accrued or
reserved against on the books and records of NetSol Pvt or NetSol UK; and (z)
amount in the aggregate to less than $25,000.
2.1.10 ABSENCE OF CHANGES. Since June 30, 1998, NetSol Pvt and
NetSol UK have conducted their businesses in the ordinary course and there
has not been: (i) any Material Adverse Effect on the business, financial
condition, liabilities, or assets of NetSol Pvt or NetSol UK or any
development or combination of developments of which management of NetSol Pvt
or NetSol UK has knowledge which is reasonably likely to result in such an
effect; (ii) any damage, destruction, or loss, whether or not covered by
insurance, having a Material Adverse Effect on NetSol Pvt or NetSol UK; (iii)
any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock, or property) with respect to the
capital stock of NetSol Pvt or NetSol UK; (iv) any increase or change in the
compensation or benefits payable or to become payable by NetSol Pvt or NetSol
UK to any of its employees, except in the ordinary course of business
consistent with past practice; (v) any sale, lease, assignment, disposition,
or abandonment of a material amount of property of NetSol Pvt or NetSol UK,
except in the ordinary course of business; (vi) any increase or modification
in any bonus, pension, insurance, or other employee benefit plan, payment, or
arrangement made to, for, or with any of its employees; (vii) the granting of
stock options, restricted stock awards, stock bonuses, stock appreciation
rights, and similar equity based awards; (viii) any resignation or
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termination of employment of any office of NetSol Pvt or NetSol UK; and
NetSol Pvt and NetSol UK, to the best of their knowledge, do not know of the
impending resignation or termination of employment of any such office; (ix)
any merger or consolidation with another entity, or acquisition of assets
from another entity except in the ordinary course of business; (x) any loan
or advance by NetSol Pvt or NetSol UK to any person or entity, or guaranty by
NetSol Pvt or NetSol UK of any loan or advance; (xi) any amendment or
termination of any contract, agreement, or license to which NetSol Pvt or
NetSol UK is a party, except in the ordinary course of business; (xii) any
mortgage, pledge, or other encumbrance of any asset of NetSol Pvt or NetSol
UK; (xiii) any waiver or release of any right or claim of NetSol Pvt or
NetSol UK, except in the ordinary course of business; (xiv) any write off as
uncollectible any note or account receivable or portion thereof; or (xv) any
agreement by NetSol Pvt or NetSol UK to do any of the things described in
this Section 2.1.10.
2.1.11 PATENTS AND TRADEMARKS. NetSol Pvt and NetSol UK have
sufficient title and ownership of all patents, trademarks, service marks,
trade names, copyrights, trade secrets, information, proprietary rights, and
processes (collectively, "Intellectual Property") necessary for their
businesses as now conducted without any conflict with or infringement of the
rights of others. The Intellectual Property owned by NetSol Pvt and NetSol UK
is listed in the SGO, NetSol Pvt, and NetSol UK Disclosure Schedule. There
are no outstanding options, licenses, or agreements of any kind relating to
the Intellectual Property, nor is NetSol Pvt or NetSol UK bound by or a party
to any options, licenses, or agreements of any kind with respect to the
Intellectual Property of any other person or entity. Neither NetSol Pvt nor
NetSol UK has received any communications alleging that they have violated
or, by conducting their businesses as proposed, would violate any of the
Intellectual Property of any other person or entity. Neither NetSol Pvt nor
NetSol UK is aware that any of their employees is obligated under any
contract (including licenses, covenants, or commitments of any nature) or
other agreement, or subject to any judgment, decree, or order of any court or
administrative agency, that would interfere with the use of his or her best
efforts to promote the interests of NetSol Pvt or NetSol UK or that would
conflict with NetSol Pvt or NetSol UK's business as proposed to be conducted.
Neither the execution or delivery of this Agreement, nor the carrying on of
NetSol Pvt or NetSol UK's business by their respective employees, nor the
conduct of NetSol Pvt or NetSol UK's business as proposed, will, to the best
of NetSol Pvt and NetSol UK's knowledge, conflict with or result in a breach
of the terms, conditions or provisions of, or constitute a default under, any
contract, covenant, or instrument under which any of such employees is now
obligated. Neither NetSol Pvt nor NetSol UK believes it is or will be
necessary to utilize any inventions of any of its employees (or people it
currently intends to hire) made prior to their employment by NetSol Pvt or
NetSol UK, as the case may be.
2.1.12 CERTAIN AGREEMENTS. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby
will: (i) result in any payment (including, without limitation, severance,
unemployment compensation, parachute payment, bonus, or otherwise), becoming
due to any director, employee, or independent contractor of NetSol Pvt or
NetSol UK , from NetSol Pvt or NetSol UK under any agreement or otherwise;
(ii) materially increase any benefits otherwise payable under any agreement;
or (iii) result in the acceleration of the time of payment or vesting of any
such benefits.
2.1.13 COMPLIANCE WITH OTHER INSTRUMENTS. Neither SGO nor NetSol
Pvt nor NetSol UK is in violation or default of any provision of their
respective articles of incorporation or bylaws, or of any instrument,
judgment, order, writ, decree, or contract to which they are a party or by
which they are bound, or, to the best of their knowledge, of any provision of
any federal or state statute, rule, or regulation which may be applicable to
them. The execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either a default under any such
provision, instrument, judgment, order, writ, decree, or contract, or an
event that results in the creation of any lien, charge, or encumbrance upon
any assets of SGO, NetSol Pvt, or NetSol UK or the suspension, revocation,
impairment, forfeiture, or nonrenewal of any material permit, license,
authorization, or approval applicable to NetSol Pvt or NetSol UK, their
businesses, or operations, or any of their assets or properties.
2.1.14 EMPLOYEE BENEFIT PLANS. All employee benefit plans
(including without limitation all plans which authorize the granting of stock
options, restricted stock, stock bonuses, or other equity based
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awards) covering active, former, or returned employees of NetSol Pvt and
NetSol UK are listed in the SGO, NetSol Pvt, or NetSol UK Disclosure Schedule.
2.1.15 OTHER PERSONAL PROPERTY. The books and records of NetSol
Pvt and NetSol UK contain a complete and accurate description, and specify
the location, of all trucks, automobiles, machinery, equipment, furniture,
supplies, and other tangible personal property owned by, in the possession
of, or used by NetSol Pvt and NetSol UK in connection with their businesses.
Except as set forth in the SGO, NetSol Pvt, or NetSol UK Disclosure Schedule,
no personal property used by NetSol Pvt or NetSol UK in connection with their
businesses is held under any lease, security agreement, conditional sales
contract, or other title retention or security arrangement.
2.1.16 PROPERTIES AND LIENS. Except as reflected in the Financial
Statements or as set forth in the SGO, NetSol Pvt, or NetSol UK Disclosure
Schedule, and except for statutory mechanics' and materialmen's liens, liens
for current taxes not yet delinquent, NetSol Pvt and NetSol UK own, free and
clear of any liens, claims, charges, options, or other encumbrances, all of
their tangible and intangible property, real and personal, whether or not
reflected in the Financial Statements (except that sold or disposed of in the
ordinary course of business since the date of such statements) and all such
property acquired since the date of such statements. All real property and
tangible personal property of NetSol Pvt and NetSol UK is in good operating
condition and repair, ordinary wear and tear excepted.
2.1.17 INVENTORY. The inventories of NetSol Pvt and NetSol UK
shown on the Financial Statements and inventories acquired by them subsequent
to the date of the Financial Statements consist solely of items of a quality
and quantity usable and salable in the normal course of business, with the
exception of obsolete materials and materials below standard quality, all of
which have been written down in the books of NetSol Pvt and NetSol UK to net
realizable market value or have been provided for by adequate reserves.
Except for sales made in the ordinary course of business, all inventory is
the property of NetSol Pvt and NetSol UK. No items are subject to security
interests, except as set forth in the SGO, NetSol Pvt, or NetSol UK
Disclosure Schedule. The value of the inventories has been determined on a
first-in, first-out basis consistent with prior years.
2.1.18 MAJOR CONTRACTS. Except as otherwise disclosed in the SGO,
NetSol Pvt, or NetSol UK Disclosure Schedule, neither NetSol Pvt nor NetSol
UK is a party or subject to:
(a) Any union contract, or any employment contract or
arrangement providing for future compensation, written or oral, with any
officer, consultant, director, or employee which is not terminable by NetSol
Pvt or NetSol UK on 30 days' notice or less without penalty or obligations to
make payments related to such termination;
(b) Any joint venture contract, partnership agreement
or arrangement or any other agreement which has involved or is expected to
involve a sharing of revenues with other persons or a joint development of
products with other persons;
(c) Any manufacture, production, distribution, sales,
franchise, marketing, or license agreement, or arrangement by which products
or services of NetSol Pvt or NetSol UK are developed, sold, or distributed;
(d) Any material agreement, license, franchise,
permit, indenture, or authorization which has not been terminated or
performed in its entirety and not renewed which may be, by its terms,
accelerated, terminated, impaired, or adversely affected by reason of the
execution of this Agreement, or the consummation of the transactions
contemplated hereby or thereby;
(e) Any material agreement, contract, or commitment
that requires the consent of another person for NetSol Pvt or NetSol UK to
enter into or consummate the transactions contemplated by this Agreement;
6
(f) Except for object code license agreements for
NetSol Pvt and NetSol UK's products executed in the ordinary course of
business, any indemnification by NetSol Pvt or NetSol UK with respect to
infringements of proprietary rights; or
(g) Any contract containing covenants purporting
to materially limit NetSol Pvt or NetSol UK's freedom to compete in any line
of business in any geographic area.
All contracts, plans, arrangements, agreements, licenses, franchises,
permits, indentures, authorizations, instruments, and other commitments
listed in the SGO, NetSol Pvt, or NetSol UK Disclosure Schedule are valid and
in full force and effect and neither NetSol Pvt nor NetSol UK has, nor to the
knowledge of NetSol Pvt nor NetSol UK has any other party thereto, breached
any material provisions of, or is in default in any material respect under
the terms thereof.
2.1.19 QUESTIONABLE PAYMENTS. Neither NetSol Pvt nor NetSol UK
nor to its knowledge any director, officer, employee, or agent of NetSol Pvt
or NetSol UK, has: (i) made any payment or provided services or other favors
in the United States or any foreign country in order to obtain preferential
treatment or consideration by any Governmental Entity with respect to any
aspect of the business of NetSol Pvt or NetSol UK; or (ii) made any political
contributions that would not be lawful under the laws of the United States,
any foreign country or any jurisdiction within the United States or any
foreign country. Neither NetSol Pvt nor NetSol UK, nor, to the knowledge of
NetSol Pvt or NetSol UK, any director, officer, employee, or agent of NetSol
Pvt or NetSol UK, has been or is the subject of any investigation by any
Governmental Entity in connection with any such payment, provision of
services, or contribution.
2.1.20 RECENT TRANSACTIONS. Neither NetSol Pvt nor NetSol UK,
nor to their knowledge any director, officer, employee, or agent of NetSol
Pvt nor NetSol UK, is participating in any discussions and do not intend to
engage in any discussion: (i) with any representative of any corporation or
corporations regarding the consolidation or merger of NetSol Pvt or NetSol UK
with or into any such corporation or corporations; (ii) with any corporation,
partnership, association, or other business entity or any individual
regarding the sale, conveyance, or disposition of all or substantially all of
the assets of NetSol Pvt or NetSol UK or a transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of
NetSol Pvt or NetSol UK is disposed of; or (iii) regarding any other form of
acquisition, liquidation, dissolution, or winding up of NetSol Pvt and UK.
2.1.21 LEASES IN EFFECT. All real property leases and subleases
as to which NetSol Pvt or NetSol UK is a party and any amendments or
modifications thereof (each a "Lease" and, collectively, the "Leases") are
listed in the SGO, NetSol Pvt, or NetSol UK Disclosure Schedule and are
valid, in full force and effect and enforceable, and there are no existing
defaults on the part of NetSol Pvt or NetSol UK, and neither NetSol Pvt nor
NetSol UK has received nor given notice of default or claimed default with
respect to any Lease, nor is there any event that with notice or lapse of
time, or both, would constitute a default thereunder. Except as set forth on
the SGO, NetSol Pvt, or NetSol UK Disclosure Schedule, no consent is required
from any party under any Lease in connection with the completion of the
transactions contemplated by this Agreement, and neither NetSol Pvt nor
NetSol UK has received notice that any party to any Lease intends to cancel,
terminate, or refuse to renew the same or to exercise any option or other
right thereunder, except where the failure to receive such consent, or where
such cancellation, termination, or refusal would not have a Material Adverse
Effect on NetSol Pvt and/or NetSol UK.
2.1.22 ENVIRONMENTAL.
(a) To the best knowledge of NetSol Pvt and
NetSol UK: (i) the business as presently or formerly engaged in by them is
and has been conducted in compliance with all applicable Environmental Laws
(as defined in subparagraph (b) below), including without limitation, having
all permits, licenses, and other approvals and authorizations, during the
time they engaged in such businesses; (ii) there are no civil, criminal, or
administrative actions, suits, demands, claims, hearings, investigations, or
proceedings pending or threatened against them relating to any violation, or
alleged violation, of any Environmental Law; and (iii) they have not
incurred, and none of their properties presently or formerly owned
7
or operated by them are presently subject to, any material liabilities (fixed
or contingent) relating to any suit, settlement, court order, administrative
order, judgment, or claim asserted or arising under any Environmental Law.
(b) "Environmental Law" means any federal,
state, foreign, and local law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, legal doctrine, order,
judgment, decree, injunction, requirement, or agreement with any governmental
entity relating to: (i) the protection, preservation, or restoration of the
environment (including, without limitation, air, water, vapor, surface water,
groundwater, drinking water supply, surface land, subsurface land, plant and
animal life, or any other natural resource), to human health or safety; or
(ii) the exposure to, or the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release, or
disposal of hazardous substances, in each case as amended and as now or
hereafter in effect.
2.1.23 TAXES. Except as set forth elsewhere in this Agreement
or in the SGO, NetSol Pvt, or NetSol UK Disclosure Schedule:
(a) All taxes, assessments, fees, penalties,
interest, and other governmental charges with respect to NetSol Pvt and
NetSol UK which have become due and payable by June 30, 1998 have been paid
in full or adequately reserved against by NetSol Pvt or NetSol UK, and all
taxes, assessments, fees, penalties, interest, and other governmental charges
which have become due and payable subsequent to June 30, 1998 have been paid
in full or adequately reserved against on their books of account and such
books are sufficient for the payment of all unpaid federal, state, local,
foreign, and other taxes, fees, and assessments (including without
limitation, income, property, sales, use, franchise, capital stock, excise,
added value, employees' income withholding, social security, and unemployment
taxes), and all interest and penalties thereon with respect to the periods
then ended and for all periods prior thereto;
(b) There are no agreements, waivers, or other
arrangements providing for an extension of time with respect to the
assessment of any tax or deficiency against NetSol Pvt or NetSol UK, nor are
there any actions, suits, proceedings, investigations, or claims now pending
against NetSol Pvt or NetSol UK in respect of any tax or assessment, or any
matters under discussion with any federal, state, local, or foreign authority
relating to any taxes or assessments, or any claims for additional taxes or
assessments asserted by any such authority; and
(c) There are no liens for taxes upon the assets
of NetSol Pvt or NetSol UK except for taxes that are not yet payable. NetSol
Pvt and NetSol UK has withheld all taxes required to be withheld in respect
of wages, salaries, and other payments to all employees, officers, and
directors and timely paid all such amounts withheld to the proper taxing
authority.
2.1.24 DISPUTES AND LITIGATION. Except as disclosed in the
SGO, NetSol Pvt, or NetSol UK Disclosure Schedule, there is no suit, claim,
action, litigation, or proceeding pending or, to the knowledge of SGO, NetSol
Pvt, or NetSol UK, threatened against or affecting SGO, NetSol Pvt, or NetSol
UK or any of their properties, assets, or business or to which SGO, NetSol
Pvt, or NetSol UK is a party, in any court or before any arbitrator of any
kind or before or by any Governmental Entity, which would, if adversely
determined, individually or in the aggregate, have a Material Adverse Effect
on SGO, NetSol Pvt, or NetSol UK, nor is there any judgment, decree,
injunction, rule, or order of any Governmental Entity or arbitrator
outstanding against SGO, NetSol Pvt, or NetSol UK and having, or which,
insofar as reasonably can be foreseen, in the future could have, any such
effect. To the knowledge of SGO, NetSol Pvt, and NetSol UK, there is no
investigation pending or threatened against SGO, NetSol Pvt, or NetSol UK
before any foreign, federal, state, municipal, or other governmental
department, commission, board, bureau, agency, instrumentality, or other
Governmental Entity.
2.1.25 COMPLIANCE WITH LAWS. Except as set forth in the SGO,
NetSol Pvt, or NetSol UK Disclosure Schedule, neither NetSol Pvt's nor NetSol
UK's business is being conducted in violation of, or in a manner which could
cause liability under any applicable law, rule, or regulation, judgment,
decree, or order of any Governmental Entity, except for any violations or
practices, which, individually or in the aggregate, have
8
not had and will not have a Material Adverse Effect on NetSol Pvt or NetSol
UK. NetSol Pvt and NetSol UK have all franchises, permits, licenses, and any
similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of NetSol, and
believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as it is planned to be conducted.
NetSol is not in default in any material respect under any of such
franchises, permits, licenses, or other similar authority. A true and
complete list of all such franchises, permits, and licenses held by NetSol
Pvt and NetSol UK is set forth in the SGO, NetSol Pvt, or NetSol UK
Disclosure Schedule.
2.1.26 RELATED PARTY TRANSACTIONS. No employee, officer, or
director of NetSol Pvt or NetSol UK or member of his or her immediate family
is indebted to NetSol Pvt or NetSol UK , nor is SGO, NetSol Pvt, or NetSol UK
indebted (or committed to make loans or extend or guarantee credit) to any of
them. To the best of SGO, NetSol Pvt, and NetSol UK's knowledge, none of such
persons has any direct or indirect ownership interest in any firm or
corporation with which NetSol Pvt or NetSol UK is affiliated or with which
NetSol Pvt or NetSol UK has a business relationship, or any firm or
corporation that competes with NetSol Pvt or NetSol UK, except that
employees, officers, or directors of NetSol Pvt and NetSol UK and members of
their immediate families may own stock in publicly traded companies that may
compete with NetSol Pvt and NetSol UK. To SGO, NetSol Pvt, and NetSol UK's
knowledge, no member of the immediate family of any officer or director of
NetSol Pvt or NetSol UK is directly or indirectly interested in any material
contract with NetSol Pvt or NetSol UK.
2.1.27 INSURANCE. NetSol Pvt and NetSol UK shall obtain fire
and casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its
properties that might be damaged or destroyed within 45 days of the execution
of this Agreement.
2.1.28 MINUTE BOOKS. The minute books of NetSol Pvt and NetSol
UK provided to Mirage contain a complete summary of all meetings of directors
and shareholders since the time of incorporation and reflect all transactions
referred to in such minutes accurately in all material respects.
2.1.29 DISCLOSURE. No representation or warranty made by SGO,
NetSol Pvt, or NetSol UK in this Agreement, nor any document, written
information, statement, financial statement, certificate, or exhibit prepared
and furnished or to be prepared and furnished by SGO, NetSol Pvt, or NetSol
UK or their representatives pursuant hereto or in connection with the
transactions contemplated hereby, when taken together, contains any untrue
statement of a material fact, or omits to state a material fact necessary to
make the statements or facts contained herein or therein not misleading in
light of the circumstances under which they were furnished.
2.1.30 RELIANCE. The foregoing representations and warranties
are made by SGO, NetSol Pvt, and NetSol UK with the knowledge and expectation
that Mirage is placing reliance thereon.
2.2 REPRESENTATIONS AND WARRANTIES OF MIRAGE. Except as disclosed in
a document referring specifically to the representations and warranties in
this Agreement that identifies by section number the section and subsection
to which such disclosure relates and is delivered by Mirage to SGO, NetSol
Pvt, and NetSol UK prior to the execution of this Agreement (the "Mirage
Disclosure Schedule"), Mirage represents and warrants, as of the date hereof
and as of the Closing, as follows:
2.2.1 ORGANIZATION, STANDING, POWER. Mirage is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Nevada. It has all requisite corporate power, franchises, licenses,
permits, and authority to own its properties and assets and to carry on its
business as it has been and is being conducted. Mirage is duly qualified and
in good standing to do business in each jurisdiction in which a failure to so
qualify would have a Material Adverse Effect on Mirage.
2.2.2 AUTHORITY. Mirage has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Mirage of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized
9
by all necessary corporate action on the part of Mirage, including the
approval of the Board of Directors and the stockholders of Mirage. This
Agreement has been duly executed and delivered by Mirage and constitutes a
valid and binding obligation of Mirage enforceable in accordance with its
terms, except that such enforceability may be subject to: (i) bankruptcy,
insolvency, reorganization, or other similar laws relating to enforcement of
creditors' rights generally; and (ii) general equitable principles. Subject
to the satisfaction of the conditions set forth in Article 3, the execution
and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, conflict with or result in any
Violation pursuant to: (i) any provision of the Articles of Incorporation or
Bylaws of Mirage; or (ii) any loan or credit agreement, note, bond, mortgage,
indenture, contract, lease, or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule, or regulation applicable to Mirage or its properties or
assets, other than, in the case of (ii), any such Violation which
individually or in the aggregate would not have a Material Adverse Effect on
Mirage.
2.2.3 NO DEFAULTS. Mirage is not, and has not received notice
that it would be with the passage of time, in default or violation of any
term, condition, or provision of: (i) the Articles of Incorporation or Bylaws
of Mirage, as amended; (ii) any judgment, decree, or order applicable to
Mirage; or (iii) any loan or credit agreement, note, bond, mortgage,
indenture, contract, agreement, lease, license, or other instrument to which
Mirage is now a party or by which it or any of its properties or assets may
be bound, except for defaults and violations which, individually or in the
aggregate, would not have a Material Adverse Effect on Mirage.
2.2.4 DISCLOSURE. No representation or warranty made by Mirage
in this Agreement, nor any document, written information, statement,
financial statement, certificate, or exhibit prepared and furnished or to be
prepared and furnished by Mirage or their representatives pursuant hereto or
in connection with the transactions contemplated hereby, when taken together,
contains any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements or facts contained herein or
therein not misleading in light of the circumstances under which they were
furnished.
2.2.5 INDEPENDENT INVESTIGATION. Mirage acknowledges and agrees
that, except as expressly provided herein, neither SGO, NetSol Pvt, nor
NetSol UK nor any of their agents, representatives, or employees have made
any representations or warranties, direct or indirect, oral or written,
express or implied, to Mirage, or any agents, representatives, or employees
of Mirage, with respect to the Shares, SGO, NetSol Pvt, or NetSol UK, or the
transactions contemplated herein, and Mirage acknowledges and agrees that it
is not aware of and does not rely upon any such representation or warranty.
Mirage acknowledges and agrees that it has had a full opportunity to inspect
the books, records, and assets of NetSol Pvt and NetSol UK and to make any
and all inquiries of the officers and directors regarding SGO, NetSol Pvt,
and NetSol UK, the Shares, and the transactions contemplated herein, as
Mirage has deemed appropriate. Mirage further acknowledges that it is
entering into this Agreement based solely (except for the express
representations and warranties of SGO, NetSol Pvt, and NetSol UK contained
herein) on Mirage's own independent investigations and findings and not in
reliance on any information provided by SGO, NetSol Pvt, or NetSol UK, or
their respective agents, representatives, or employees.
2.2.6 RELIANCE. The foregoing representations and warranties
are made by Mirage with the knowledge and expectation that SGO, NetSol Pvt,
and NetSol UK NetSol are placing reliance thereon.
ARTICLE 3
CONDITIONS PRECEDENT
3.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of each party hereunder shall be subject to the satisfaction
prior to or at the Closing of the following conditions:
(a) NO RESTRAINTS. No statute, rule, regulation, order, decree,
or injunction shall have been enacted, entered, promulgated, or enforced by
any court or Governmental Entity of competent jurisdiction which enjoins or
prohibits the consummation of this Agreement and shall be in effect.
10
(b) LEGAL ACTION. There shall not be pending or threatened in
writing any action, proceeding, or other application before any court or
Governmental Entity challenging or seeking to restrain or prohibit the
consummation of the transactions contemplated by this Agreement, or seeking
to obtain any material damages.
3.2 CONDITIONS TO MIRAGE'S OBLIGATIONS. The obligations of Mirage
shall be subject to the satisfaction prior to or at the Closing of the
following conditions unless waived by SGO, NetSol Pvt, and NetSol UK:
(a) REPRESENTATIONS AND WARRANTIES OF MIRAGE. The
representations and warranties of Mirage set forth in this Agreement shall
be true and correct as of the date of this Agreement and as of the Closing as
though made on and as of the Closing, except: (i) as otherwise contemplated
by this Agreement; or (ii) in respects that do not have a Material Adverse
Effect on Mirage or on the benefits of the transactions provided for in this
Agreement. SGO, NetSol Pvt, and NetSol UK shall have received a certificate
signed on behalf of Mirage by the Vice President, Chief Financial Officer,
and Secretary of Mirage to such effect on the Closing.
(b) PERFORMANCE OF OBLIGATIONS OF MIRAGE. Mirage shall have
performed all agreements and covenants required to be performed by it under
this Agreement prior to the Closing, except for breaches that do not have a
Material Adverse Effect on Mirage or on the benefits of the transactions
provided for in this Agreement. SGO, NetSol Pvt, and NetSol UK shall have
received a certificate signed on behalf of Mirage by the Vice President,
Chief Financial Officer, and Secretary of Mirage to such effect on the
Closing.
3.3 CONDITIONS TO NETSOL'S OBLIGATIONS. The obligations of SGO,
NetSol Pvt, and NetSol UK shall be subject to the satisfaction prior to or at
the Closing of the following conditions unless waived by Mirage:
(a) REPRESENTATIONS AND WARRANTIES OF SGO, NETSOL PVT, AND
NETSOL UK. The representations and warranties of SGO, NetSol Pvt, and NetSol
UK set forth in this Agreement shall be true and correct as of the date of
this Agreement and as of the Closing as though made on and as of the Closing,
except: (i) as otherwise contemplated by this Agreement; or (ii) in respects
that do not have a Material Adverse Effect on SGO, NetSol Pvt, and NetSol UK
or on the benefits of the transactions provided for in this Agreement. Mirage
shall have received a certificate signed on behalf of SGO by SGO and of
NetSol Pvt by the Chief Executive Officer and the Chief Financial Officer of
NetSol Pvt and of NetSol UK by the Chief Executive Officer and the Chief
Financial Officer of NetSol UK to such effect on the Closing.
(b) PERFORMANCE OF OBLIGATIONS OF SGO, NETSOL PVT, AND NETSOL
UK. SGO, NetSol Pvt, and NetSol UK shall have performed all agreements and
covenants required to be performed by it under this Agreement prior to the
Closing, except for breaches that do not have a Material Adverse Effect on
SGO, NetSol Pvt, and NetSol UK or on the benefits of the transactions
provided for in this Agreement. Mirage shall have received a certificate
signed on behalf of SGO by SGO and of NetSol Pvt by the Chief Executive
Officer and the Chief Financial Officer of NetSol Pvt and of NetSol UK by the
Chief Executive Officer and the Chief Financial Officer of NetSol UK to such
effect on the Closing.
(c) GOVERNMENTAL APPROVALS. All Consents of Governmental
Entities legally required by SGO, NetSol Pvt, and NetSol UK for the
transactions contemplated by this Agreement shall have been filed, occurred,
or been obtained, other than such Consents, the failure of which to obtain
would not have a Material Adverse Effect on the consummation of the
transactions contemplated by this Agreement.
(d) CONSENTS OF OTHER THIRD PARTIES. SGO, NetSol Pvt, and
NetSol UK shall have received and delivered to Mirage all requisite consents
and approvals of all lenders, lessors, and other third parties whose consent
or approval is required in order for SGO, NetSol Pvt, and NetSol UK to
consummate the transactions contemplated by this Agreement, or in order to
permit the continuation after the Closing of the business activities of
NetSol Pvt and NetSol UK in the manner such business is presently carried on
by them. Mirage shall have received copies of any necessary written
consent(s) to this Agreement and the transactions contemplated herein.
11
(e) MATERIAL ADVERSE CHANGE. Since the date hereof and through
Closing, there shall not have occurred any change, occurrence, or
circumstance in SGO, NetSol Pvt, and NetSol UK having or reasonably likely to
have, individually or in the aggregate, in the reasonable judgment of Mirage,
a Material Adverse Effect on SGO, NetSol Pvt, and NetSol UK.
(f) OPINION OF COUNSEL. Mirage shall have received an opinion,
dated as of Closing, from counsel to SGO, NetSol Pvt, and NetSol UK, in form
and substance substantially in the form of Exhibit "B" hereto.
ARTICLE 4
COVENANTS
4.1 COMPOSITION OF THE BOARD OF DIRECTORS OF NETSOL PVT. Subject to
shareholder approval, the Board of Directors of NetSol Pvt shall consist of
five directors as follows until the next annual election of directors:
(a) Xxxxxx Xxxxxx, Chairman;
(b) Xxxxx Xxxxxx;
(c) Xxxxx Xxxxxxx;
(d) Xxxxx Xxxx; and
(e) Xxxxx Xxxxxx
4.2 BOARD SEAT ON THE BOARD OF MIRAGE. Mirage has granted SGO,
NetSol Pvt, and NetSol UK the opportunity to collectively nominate, subject
to shareholder approval, one person to sit on the Mirage Board of Directors.
SGO, NetSol Pvt, and NetSol UK hereby acknowledges that they have nominated
Xxxxx Xxxxxx as their nominee to the Mirage Board of Directors (the "NetSol
nominee.") The NetSol nominee may sit on the Mirage Board of Directors until
the next annual election of directors.
ARTICLE 5
CLOSING AND DELIVERY OF DOCUMENTS
5.1 TIME AND PLACE. The closing of the transactions contemplated by
this Agreement shall take place at the offices of XXXXXXX & BEAM, Two Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, five business days after the
execution of this Agreement, or at such other time and place as the Parties
mutually agree upon in writing (which time and place are hereinafter referred
to as the "Closing").
5.2 DELIVERIES BY SGO, NETSOL PVT, AND NETSOL UK. At Closing, SGO,
NetSol Pvt, and NetSol UK shall make the following deliveries to Mirage:
(a) A certificate representing the NetSol Pvt Shares that Mirage
is acquiring as set forth in Section 1.1 above;
(b) A certificate representing the NetSol UK Shares that Mirage
is acquiring as set forth in Section 1.1 above;
(c) A certificate of good standing for NetSol Pvt;
(d) A certificate of good standing for NetSol UK;
(e) A certificate executed by SGO, NetSol Pvt, and NetSol UK
certifying that all SGO, NetSol Pvt, and NetSol UK's representations and
warranties under this Agreement are true as of the Closing, as though each of
those representations and warranties had been made on that date;
(f) Certified resolutions of the Board of Directors of NetSol
Pvt and NetSol UK, in form satisfactory to counsel for Mirage, authorizing
the execution and performance of this Agreement; and
12
(g) An opinion of counsel to SGO, NetSol Pvt, and NetSol UK,
dated as of Closing, as set forth in Section 3.3(f).
5.3 DELIVERIES BY MIRAGE. At Closing, Mirage shall make
the following deliveries to SGO, NetSol Pvt, and NetSol UK:
(a) The payment of the remaining cash purchase price
as set forth in Section 1.2(b);
(b) A certificate representing the Mirage Shares that SGO is
acquiring as set forth in Section 1.2(c);
(c) A certificate executed by Mirage certifying that Mirage's
respective representations and warranties under this Agreement are true as of
the Closing, as though each of those representations and warranties had been
made on that date;
(d) A certificate of good standing for Mirage from the office
of the Nevada Secretary of State;
(e) Certified resolutions of the Board of Directors of Mirage
signed by at least one of the two directors of Mirage, in form satisfactory to
counsel for SGO, NetSol Pvt, and NetSol UK, authorizing the execution and
performance of this Agreement; and
(e) A Consent Action in Writing by the Majority Shareholders
in lieu of meeting authorizing the execution and performance of this Agreement.
ARTICLE 6
INDEMNIFICATION
6.1 SGO, NETSOL PVT, AND NETSOL UK'S INDEMNITY.
(a) Upon receipt of notice thereof, SGO, NetSol Pvt, and
NetSol UK shall, jointly and severally, indemnify, defend, and hold harmless
Mirage from any and all claims, demands, liabilities, damages, deficiencies,
losses, obligations, costs and expenses, including attorney fees and any costs
of investigation that Mirage shall incur or suffer, that arise, result from or
relate to: (i) any breach of, or failure by SGO, NetSol Pvt, and/or NetSol UK to
perform, any of their representations, warranties, covenants, or agreements in
this Agreement or in any schedule, certificate, exhibit, or other instrument
furnished or to be furnished by SGO, NetSol Pvt, and/or NetSol UK under this
Agreement; and (ii) the employment of any of NetSol Pvt or NetSol UK's employees
which is in violation of any law, regulation, or ordinance of any Governmental
Entity.
(b) Mirage shall notify promptly SGO, NetSol Pvt, and NetSol
UK of the existence of any claim, demand, or other matter to which SGO, NetSol
Pvt, and NetSol UK's indemnification obligations would apply, and shall give
them a reasonable opportunity to defend the same at their own expense and with
counsel of their own selection, provided that Mirage shall at all times also
have the right to fully participate in the defense. If SGO, NetSol Pvt, and
NetSol UK, within a reasonable time after this notice, fails to defend, Mirage
shall have the right, but not the obligation, to undertake the defense of, and,
with the written consent of SGO, NetSol Pvt, and NetSol UK, to compromise or
settle the claim or other matter on behalf, for the account, and at the risk, of
SGO, NetSol Pvt, and NetSol UK.
6.2 MIRAGE'S INDEMNITY.
(a) Upon receipt of notice thereof, Mirage shall indemnify,
defend, and hold harmless SGO, NetSol Pvt, and/or NetSol UK from any and all
claims, demands, liabilities, damages, deficiencies, losses, obligations, costs,
and expenses, including attorney fees and any costs of investigation that SGO,
NetSol Pvt, and/or NetSol UK shall incur or suffer, that arise, result from or
relate to any breach of, or failure by Mirage to perform any of its
representations, warranties, covenants, or agreements in this Agreement or
13
in any schedule, certificate, exhibit, or other instrument furnished or to be
furnished by Mirage under this Agreement.
(b) SGO, NetSol Pvt, and/or NetSol UK shall notify promptly
Mirage of the existence of any claim, demand or other matter to which Mirage's
indemnification obligations would apply, and shall give it a reasonable
opportunity to defend the same at its own expense and with counsel of its own
selection, provided that SGO, NetSol Pvt, and NetSol UK shall at all times also
have the right to fully participate in the defense. If Mirage, within a
reasonable time after this notice, fails to defend, SGO, NetSol Pvt, and NetSol
UK shall have the right, but not the obligation, to undertake the defense of,
and, with the written consent of Mirage, to compromise or settle the claim or
other matter on behalf, for the account, and at the risk, of Mirage.
ARTICLE 7
DEFAULT, AMENDMENT AND WAIVER
7.1 DEFAULT. Upon a breach or default under this Agreement by any
of the Parties (following the cure period provided herein), the non-defaulting
party shall have all rights and remedies given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. Notwithstanding the
foregoing, in the event of a breach or default by any party hereto in the
observance or in the timely performance of any of its obligations hereunder
which is not waived by the non-defaulting party, such defaulting party shall
have the right to cure such default within 15 days after receipt of notice in
writing of such breach or default.
7.2 WAIVER AND AMENDMENT. Any term, provision, covenant,
representation, warranty, or condition of this Agreement may be waived, but only
by a written instrument signed by the party entitled to the benefits thereof.
The failure or delay of any party at any time or times to require performance of
any provision hereof or to exercise its rights with respect to any provision
hereof shall in no manner operate as a waiver of or affect such party's right at
a later time to enforce the same. No waiver by any party of any condition, or of
the breach of any term, provision, covenant, representation, or warranty
contained in this Agreement, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such condition or breach
or waiver of any other condition or of the breach of any other term, provision,
covenant, representation, or warranty. No modification or amendment of this
Agreement shall be valid and binding unless it be in writing and signed by all
Parties hereto.
ARTICLE 8
MISCELLANEOUS
8.1 EXPENSES. Whether or not the transactions contemplated hereby
are consummated, each of the Parties hereto shall bear all taxes of any nature
(including, without limitation, income, franchise, transfer, and sales taxes)
and all fees and expenses relating to or arising from its compliance with the
various provisions of this Agreement and such party's covenants to be performed
hereunder, and except as otherwise specifically provided for herein, each of the
Parties hereto agrees to pay all of its own expenses (including, without
limitation, attorneys and accountants' fees, and printing expenses) incurred in
connection with this Agreement, the transactions contemplated hereby, the
negotiations leading to the same and the preparations made for carrying the same
into effect, and all such taxes, fees, and expenses of the Parties hereto shall
be paid prior to Closing.
8.2 NOTICES. Any notice, request, instruction, or other document
required by the terms of this Agreement, or deemed by any of the Parties hereto
to be desirable, to be given to any other party hereto shall be in writing and
shall be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the following addresses:
TO SGO: Xx. Xxxxx Xxxxxx and Others
Attn: Xx. Xxxxx Xxxxx Ghauri
14
0xx Xxxxx, X-00, XXXXX
Xxxxxx, Xxxxx.
Fax: 00000000000
TO NETSOL PVT: Network Solutions (Pvt) Limited
Attn: Xx. Xxxxx Xxxxx Ghauri
0xx Xxxxx, X-00, XXXXX
Xxxxxx, Xxxxx.
Fax: 00000000000
TO NETSOL UK: NetSol (UK) Limited
00, Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxxx
Sherylwod, Xxxxxx Keynes MRS GLB U.K.
Fax: x00 0000 000000
TO MIRAGE: Mirage Holdings, Inc.
Attn: Xxxxxx X. Xxxxxx, President
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxxx & Beam
Attn: Xxxxx Xxxxxx
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by facsimile, personal delivery, or
overnight delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given at the time of such delivery. If
notice is given by mail in accordance with the provisions of this Section, such
notice shall be conclusively deemed given seven days after deposit thereof in
the United States mail.
8.3 ENTIRE AGREEMENT. This Agreement, together with the Schedule
and Exhibits hereto, sets forth the entire agreement and understanding of the
Parties hereto with respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and understandings related to the
subject matter hereof. No understanding, promise, inducement, statement of
intention, representation, warranty, covenant, or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto which is not embodied in this Agreement, or in the schedules or exhibits
hereto or the written statements, certificates, or other documents delivered
pursuant hereto or in connection with the transactions contemplated hereby, and
no party hereto shall be bound by or liable for any alleged understanding,
promise, inducement, statement, representation, warranty, covenant, or condition
not so set forth.
8.4 SURVIVAL OF REPRESENTATIONS. All statements of fact (including
financial statements) contained in the Schedule, the exhibits, the certificates,
or any other instrument delivered by or on behalf of the Parties hereto, or in
connection with the transactions contemplated hereby, shall be deemed
representations and warranties by the respective party hereunder. All
representations, warranties, agreements, and covenants hereunder shall survive
the Closing and remain effective regardless of any investigation or audit at any
time made by or on behalf of the Parties or of any information a party may have
in respect hereto. Consummation of the transactions contemplated hereby shall
not be deemed or construed to be a waiver of any right or remedy possessed by
any party hereto, notwithstanding that such party knew or should have known at
the time of Closing that such right or remedy existed.
15
8.5 INCORPORATED BY REFERENCE. The schedules, exhibits, and all
documents (including, without limitation, all financial statements) delivered as
part hereof or incident hereto are incorporated as a part of this Agreement by
reference.
8.6 REMEDIES CUMULATIVE. No remedy herein conferred upon the
Parties is intended to be exclusive of any other remedy and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
8.7 EXECUTION OF ADDITIONAL DOCUMENTS. Each party hereto shall
make, execute, acknowledge, and deliver such other instruments and documents,
and take all such other actions as may be reasonably required in order to
effectuate the purposes of this Agreement and to consummate the transactions
contemplated hereby.
8.8 FINDERS' AND RELATED FEES. Each of the Parties hereto is
responsible for, and shall indemnify the other against, any claim by any third
party to a fee, commission, bonus, or other remuneration arising by reason of
any services alleged to have been rendered to or at the instance of said party
to this Agreement with respect to this Agreement or to any of the transactions
contemplated hereby.
8.9 GOVERNING LAW. This Agreement has been negotiated and
executed in the State of California and shall be construed and
enforced in accordance with the laws of such state.
8.10 FORUM. Each of the Parties hereto agrees that any action or
suit which may be brought by any party hereto against any other party hereto in
connection with this Agreement or the transactions contemplated hereby may be
brought only in a federal or state court in Orange County, California.
8.11 PROFESSIONAL FEES. In the event either party hereto shall
commence legal proceedings against the other to enforce the terms hereof, or to
declare rights hereunder, as the result of a breach of any covenant or condition
of this Agreement, the prevailing party in any such proceeding shall be entitled
to recover from the losing party its costs of suit, including reasonable
attorneys' fees, accountants' fees, and experts' fees.
8.12 BINDING EFFECT AND ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the Parties hereto and their respective
heirs, executors, administrators, legal representatives, and assigns.
8.13 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed simultaneously in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument. The Parties agree that facsimile signatures of this
Agreement shall be deemed a valid and binding execution of this Agreement.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement, as of the date first written hereinabove.
MIRAGE:
MIRAGE HOLDINGS, INC.,
a Nevada corporation
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
By: Xxxxxx X. Xxxxxx
Its: President
NETSOL PVT:
NETWORK SOLUTIONS (PVT) LIMITED,
a Pakistan corporation
/s/ Xx. Xxxxx Xxxxx Ghauri
-----------------------------------
By: Xx. Xxxxx Xxxxx Ghauri
Its: Chief Executive Officer, Director
NETSOL UK:
NETSOL (UK) LIMITED,
a United Kingdom corporation
/s/ Xx. Xxxxx Xxxxx Ghauri
-----------------------------------
By: Xx. Xxxxx Xxxxx Ghauri
Its: Chief Executive Officer, Director
SGO:
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
Print name here: Xx. Xxxxx Xxxxx Ghauri
/s/ Xxx. Xxxxxxx Xxxxxx
-----------------------------------
Print name here: Xxx. Xxxxxxx Xxxxxx
/s/ Xxx. Xxxxxx Xxxxxx
-----------------------------------
Print name here: Xxx. Xxxxxx Xxxxxx
17
EXHIBIT "A"
LIST OF SHAREHOLDERS ENTERING INTO THIS AGREEMENT
Shareholder Name Entity in which Shares Held Number of Shares Held
---------------- --------------------------- ----------------------
Xx. Xxxxx Xxxxx Ghauri Network Solutions (Pvt) Ltd. 100
NetSol (U.K.) Limited 25
Xx. Xxxxxx Uo Din Ghauri Network Solutions (Pvt) Ltd. 100
NetSol (U.K.) Limited 25
Mrs. Aamrah Shahab Network Solutions (Pvt) Ltd. 100
NetSol (U.K.) Limited 25
Xxx. Xxxxxxx Xxxxxx Network Solutions (Pvt) Ltd. 100
NetSol (U.K.) Limited 25
TOTALS (Network Solutions [Pvt] Ltd.) 400
(NetSol [U.K.] Limited) 100
EXHIBIT "B"
OPINION LETTERS
[DFK INTERNATIONAL WORLDWIDE LETTERHEAD]
[SEPTEMBER 18, 1998]
Xxxxxx X. Xxxxxx
President
Mirage Holdings, Inc.
OPINION LETTER
XXXXXX XXXXXX & OTHERS AND NETWORK SOLUTIONS (PVT) LIMITED
Sir,
We have acted as counsel for XXXXXX XXXXXX & OTHERS ("SGO") and NETWORK
SOLUTIONS (PVT) LIMITED, a Pakistan corporation ("NetSol Pvt."), in
connection with the acquisition by MIRAGE HOLDINGS, INC., a Nevada
corporation, of certain shares of NetSol Pvt and NetSol UK from SGO
(collectively, the "Shares"). This opinion is delivered to you pursuant to
section 3.3(f) of that certain Acquisition Agreement dated September 15,
1998 by and between SGO, NetSol Pvt, and NetSol UK, on the one hand and
Mirage, on the other hand (the "Acquisition Agreement").
In connection with this Opinion, we have reviewed: (i) the Agreement; and
(ii) the corporate books and records of NetSol Pvt.
Based on the foregoing, we are of the opinion that:
1. NetSol Pvt has been duly incorporated and is a validly
existing corporation in good standing under the laws of Pakistan
with full power and authority to own, operate and lease its
properties and assets and to carry on its business as currently
contemplated. NetSol Pvt is qualified to do business in THE WHOLE
OF PAKISTAN, PARTICULARLY PUNJAB NetSol Pvt's Articles of
Incorporation were filed with CORPORATE LAW AUTHORITY, GOVERNMENT
OF PAKISTAN on AUGUST 22, 1996.
2. Each of the Agreements has been duly authorized, executed,
and delivered by NetSol and is a legal, valid, and binding agreement
of SGO and NetSol Pvt, enforceable in accordance with its terms,
except as rights to indemnity and contribution thereunder may be
limited by Federal and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, or similar laws affecting
creditors' rights generally and subject to general principles of
equity.
3. NetSol Pvt has authorized capital of 20,000 shares of common stock,
RS. 100/- par value, of which 1,000 shares have been issued
(collectively, the "Capital Stock"). All shares of the Capital Stock
will be, upon issuance pursuant to the Acquisition Agreement, duly
authorized, validly issued, fully paid and nonassessable. SGO currently
owns 1,000 NetSol Pvt Shares.
4. To the best of our knowledge, other than as set forth in the
Acquisition Agreement, there are no outstanding or authorized
subscriptions, options, warrants, calls, rights, commitments, or other
agreements of any character that obligate NetSol Pvt to issue any
additional shares of any capital stock or any securities convertible
into or evidencing the right to subscribe for any shares of NetSol Pvt
capital stock. UNDER SECTION 86(2) OF THE COMPANIES ORDINANCE, 1984
(PAKISTANI LAW) "THE OFFER OF NEW SHARES SHALL BE STRICTLY IN
PROPORTION TO THE NUMBER OF EXISTING SHARES HELD, AND IF THE OFFER WAS
NOT ACCEPTED, THE DIRECTORS MAY ALLOT AND ISSUE SUCH SHARES IN SUCH
MANNER AS THEY MAY DEEM FIT." THEREFORE, MIRAGE HOLDINGS, INC. HAS A
RIGHT TO OPT 51% OF NEW SHARES OFFERED TO MAINTAIN 51% HOLDING.
Page 2
5. The execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated by an Agreement).
a) Constitute a violation (with or without the giving of
notice or lapse of time, or both) of any provision of any law,
regulation or rule or any judgment, decree, or order known to
you of any court, agency, or other governmental authority
applicable to SGO and NetSol Pvt;
b) Require any consent, approval or authorization
of any government authority;
c) Result in a default under, acceleration or termination
of, or the creation by any party of the right to accelerate,
terminate, modify or cancel, any material agreement to with
SGO and NetSol Pvt is a party or by which it is bound or to
which any assets of SGO and NetSol Pvt are subject;
d) Result in the creation of any lien or
encumbrance upon the assets of SGO and NetSol Pvt
pursuant to any material agreement; and
e) Conflict with or result in a breach of, or constitute
default under any provision of NetSol Pvt Articles of
Incorporation.
6. To the best of our knowledge, there are no claims, actions, suits,
arbitrations, criminal or civil investigations or overly threatened in
writing against SGO and NetSol Pvt before or by a Court or Federal
Governmental, Department, Commission, Board, Bureau, or Agency or
Instrumentality, except that certain formalities of the State Bank of
Pakistan have to be contemplated by NetSol Pvt.
The foregoing opinions are subject to the following exceptions: we express no
opinion as to the validity, binding effect, or enforceability of any
provision of the Agreement purporting: (a) to prohibit oral amendment or
waiver of the Agreement or limit the effect of a course of dealing between
the parties thereto; (b) to establish the forum and jurisdiction of any
Federal or Courts in connection with any legal action or proceeding arising
out of or in connection with the Agreements; (c) to indemnify any person
against any liabilities to the extent the enforceability of such indemnity
violates public policy; (d) to indemnify any person for his or her own acts
of gross negligence.
This opinion and the matters addressed herein are as of the date hereof, and
we undertake no, and hereby disclaim any obligation to advise you of any
change in any matter set forth herein occurring after the date hereof. This
opinion is solely for your benefit and no other persons shall be entitled to
rely upon the opinions herein expressed. This letter is limited to the
matters expressly stated herein and no opinion is implied or may be inferred
beyond the matters expressly stated. Without our prior written consent, this
opinion may not be quoted in whole or in part or otherwise referred to in any
document any may not be furnished to any other person or entity.
Yours sincerely,
/s/ Saeed Xxxxxx Xxxxx & Company
CHARTERED ACCOUNTANTS
EXHIBIT C
SGO, NETSOL PVT, AND NETSOL UK DISCLOSURE SCHEDULE
The items set forth below are exceptions to the representations and
warranties of SGO, NetSol Pvt, and NetSol UK set forth in Section 2.1 of the
Agreement. Any matter set forth herein as an exception to a section of the
Agreement shall be deemed to constitute an exception to all other applicable
sections of the Agreement. Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Agreement.
Section Exception
------- ----------
FOR SGO
Nil
FOR NETWORK SOLUTIONS (PVT) LTD.
Nil
FOR NETSOL (U.K.) LIMITED
Nil
EXHIBIT D
MIRAGE DISCLOSURE SCHEDULE
The items set forth below are exceptions to the representations and
warranties of Mirage set forth in Section 2.2 of the Agreement. Any matter
set forth herein as an exception to a section of the Agreement shall be
deemed to constitute an exception to all other applicable sections of the
Agreement. Capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Agreement.
Section Exception
------- ---------
CERTIFICATE OF THE SECRETARY
OF
MIRAGE HOLDINGS, INC.
I, XXXXXX X. XXXXXX, hereby certify that I am the duly elected,
qualified and acting Secretary of MIRAGE HOLDINGS, INC., a Nevada corporation
(the "Company"), and I further certify as follows:
Attached hereto as Exhibit A is a true, correct and complete
copy of resolutions duly adopted by the Board of Directors of the Company by
written consent in accordance with applicable law and the Bylaws authorizing
the execution and performance of that certain Acquisition Agreement dated
September 15, 1998 (the "Agreement"), by and between the Company, on the one
hand, and Xxxxx Xxxxxx and Other ("SGO"), Network Solutions (Pvt) Limited, a
Pakistan corporation ("NetSol PVT), and NetSol (UK) Limited, a United Kingdom
corporation ("NetSol UK"), on the other hand. Such resolutions have not been
modified, rescinded or otherwise changed or amended and remain in full force
and effect as of the date hereof.
IN WITNESS WHEREOF, I have executed this certificate as of this
15th day of September, 1998.
/s/ Xxxxxx X. Xxxxxx
--------------------------
XXXXXX X. XXXXXX, Secretary
MIRAGE HOLDINGS, INC.
A NEVADA CORPORATION
WRITTEN CONSENT OF THE BOARD OF DIRECTORS
WITHOUT MEETING
Pursuant to the authority granted to the board of directors by the
Nevada Revised Statutes, all members of the board of directors of MIRAGE
HOLDINGS, INC., a Nevada corporation (this "Company"), do hereby consent to,
adopt, ratify, confirm, and approve, as of the date indicated below, the
following resolutions, as evidenced by their signatures hereunder:
ACQUISITION
WHEREAS, the undersigned deem it in the best interests of the Company to
effectuate a purchase of 51% of the outstanding shares of capital stock of
Network Solutions (Pvt) Limited, a Pakistan corporation ("NetSol Pvt) and 43%
of the outstanding shares of capital stock of NetSol (UK) Limited, a United
Kingdom corporation ("NetSol UK"), from Xxxxx Xxxxxx and others ("SGO"), in
exchange for the payment of $775,000 and 490,000 of this Company's
outstanding common stock;
WHEREAS, the terms and conditions of the acquisition are set forth in
that certain Acquisition Agreement attached hereto and incorporated herein by
this reference as Exhibit "A" (the "Acquisition Agreement");
NOW, THEREFORE, IT IS HEREBY, RESOLVED, that either the Chief Executive
Officer, President, Chief Financial Officer, Vice President, and/or Secretary
of the Company, acting alone or together, each are hereby authorized to
execute and deliver, for and on behalf of the Company, the Acquisition
Agreement in substantially the form attached as Exhibit "A", with such
changes as the officers authorized to execute the documents may approve,
together with and including, without limitation, any and all agreements,
instruments, and documents, and amendments thereto (collectively, the
"Documents") as they may deem necessary or appropriate to consummate the
transactions contemplated therein.
RESOLVED FURTHER, that the Company is authorized to perform the
Documents executed and delivered in accordance with these resolutions.
FURTHER ACTION
RESOLVED, that the officers of the Company specified above are
authorized to take such further action as they may deem necessary or
appropriate to carry out the purpose and intent of the foregoing resolution.
RATIFICATION
RESOLVED, that the authority given hereunder shall be deemed retroactive
and any and all agreements, instruments and documents, and all amendments
thereto, and acts authorized hereunder executed, delivered or performed prior
to the passage of these resolutions are hereby confirmed, ratified and
approved.
RESOLVED FURTHER, that the Secretary of the Company is authorized to
certify a copy of these resolutions and deliver the same as evidence of the
foregoing authorization to act on behalf of the Company.
The undersigned hereby consent to this action and the resolutions set
forth above and direct and authorize that a copy of this Written Consent of
Board of Directors be placed by the Company 's secretary with the minutes of
the proceedings of the Board of Directors in the official records of the
Company.
1
Dated: September 15, 1998
DIRECTORS:
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
/s/ Gill Champion
--------------------
Gill Champion
/s/ Xxxxx Xxxxxxx
--------------------
Xxxxx Xxxxxxx
2
CERTIFICATE OF THE
VICE PRESIDENT, CHIEF FINANCIAL OFFICER,
AND SECRETARY OF
MIRAGE HOLDINGS, INC.
The undersigned hereby certifies that he is the duly elected, qualified
and acting Vice President and Chief Financial Officer of MIRAGE HOLDINGS, INC.,
a Nevada corporation (the "Company"), and, as such, is authorized to execute
this certificate on behalf of the Company and does further certify as follows:
1. This certificate is being delivered pursuant to Article 3.2(a) and
Article 3.2(b) of that certain Acquisition Agreement dated September 15, 1998
(the "Agreement"), by and among the Company, on the one hand, and Xxxxx
Xxxxxx and Other ("SGO"), Network Solutions (Pvt) Limited, a Pakistan
corporation ("NetSol PVT), and NetSol (UK) Limited, a United Kingdom
corporation ("NetSol UK"), on the other hand. All capitalized terms not
otherwise defined herein shall have the respective meanings assigned to them
in the Agreement.
2. All representations and warranties of the Company set forth in the
Agreement are true and correct as of the date of the Agreement and as of the
Closing as though made on and as of the Closing, except: (i) as otherwise
contemplated by the Agreement; or (ii) in respects that do not have a
Material Adverse Effect on the Company or on the benefits of the transactions
provided for in the Agreement.
3. The Company has performed all agreements and covenants required to
be performed by it under the Agreement prior to the Closing, except for
breaches that do not have a Material Adverse Effect on the Company or on the
benefits of the transactions provided for in the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this certificate as of
the 15th day of September, 1998.
MIRAGE HOLDINGS, INC., a Nevada corporation
/s/ Gill Champion
-----------------------------------------------
By: Gill Champion
Its: Vice President and Chief Financial Officer
CERTIFICATE OF THE OFFICERS
OF
NETWORK SOLUTIONS (PVT) LIMITED
The undersigned hereby certify that they are, respectively, the duly
elected, qualified and acting President and Chief Financial Officer of
NETWORK SOLUTIONS (PVT) LIMITED, a Pakistan corporation (the "Company"), and,
as such, are authorized to execute this certificate on behalf of the Company
and do further certify as follows:
1. This certificate is being delivered pursuant to Article 3.3(a) and
Article 3.3(b) of that certain Acquisition Agreement dated September 15, 1998
(the "Agreement"), by and among Xxxxx Xxxxxx and Others ("SGO"), NetSol (UK)
Limited, a United Kingdom corporation ("NetSol UK"), and the Company, on the
one hand, and Mirage Holdings, Inc., a Nevada corporation, on the other hand.
All capitalized terms not otherwise defined herein shall have the respective
meanings assigned to them in the Agreement.
2. All representations and warranties of the Company set forth in the
Agreement are true and correct as of the date of the Agreement and as of the
Closing as though made on and as of the Closing, except: (i) as otherwise
contemplated by the Agreement; or (ii) in respects that do not have a
Material Adverse Effect on the Company or on the benefits of the transactions
provided for in the Agreement.
3. The Company has performed all agreements and covenants required to
be performed by it under the Agreement prior to the Closing, except for
breaches that do not have a Material Adverse Effect on the Company or on the
benefits of the transactions provided for in the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this certificate as of
the 15th day of September, 1998.
NETWORK SOLUTIONS (PVT) LIMITED,
a Pakistan corporation
/s/ Xxxxxx Xxxxx Ghauri
--------------------------------
By: Xxxxxx Xxxxx Ghauri
Its: President
/s/ Xxxxxxxx Xxxx
--------------------------------
By: Xxxxxxxx Xxxx
Its: Chief Financial Officer
CERTIFICATE OF THE OFFICERS
OF
NETSOL (UK) LIMITED
The undersigned hereby certify that they are, respectively, the duly
elected, qualified and acting President and Chief Financial Officer of NETSOL
(UK) LIMITED, a United Kingdom corporation (the "Company"), and, as such, are
authorized to execute this certificate on behalf of the Company and do
further certify as follows:
1. This certificate is being delivered pursuant to Article 3.3(a) and
Article 3.3(b) of that certain Acquisition Agreement dated September 15, 1998
(the "Agreement"), by and among Xxxxx Xxxxxx and Others ("SGO"), Network
Solutions (Pvt) Limited, a Pakistan corporation, and the Company, on the one
hand, and Mirage Holdings, Inc., a Nevada corporation, on the other hand. All
capitalized terms not otherwise defined herein shall have the respective
meanings assigned to them in the Agreement.
2. All representations and warranties of the Company set forth in the
Agreement are true and correct as of the date of the Agreement and as of the
Closing as though made on and as of the Closing, except: (i) as otherwise
contemplated by the Agreement; or (ii) in respects that do not have a
Material Adverse Effect on the Company or on the benefits of the transactions
provided for in the Agreement.
3. The Company has performed all agreements and covenants required to
be performed by it under the Agreement prior to the Closing, except for
breaches that do not have a Material Adverse Effect on the Company or on the
benefits of the transactions provided for in the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this certificate as of
the 15th day of September, 1998.
NETSOL (UK) LIMITED,
a United Kingdom corporation
/s/ Xxxxxx Xxxxx Ghauri
----------------------------
By: Xxxxxx Xxxxx Ghauri
Its: President
/s/ Mrs. Aamrah Ghauri
----------------------------
By: Mrs. Aamrah Ghauri
Its: Chief Financial Officer
CERTIFICATE OF
XXXXX XXXXXX AND OTHERS
The undersigned hereby certify that they are Xxxxx Xxxxxx and Others,
acting in their individual capacities and as shareholders of Network
Solutions (Pvt) Limited, a Pakistan corporation and NetSol (UK) Limited, a
United Kingdom corporation, and, as such, are authorized to execute this
certificate on behalf of the Company and do further certify as follows:
1. This certificate is being delivered pursuant to Article 3.3(a) and
Article 3.3(b) of that certain Acquisition Agreement dated September 15, 1998
(the "Agreement"), by and among Xxxxx Xxxxxx and Other ("SGO"), Network
Solutions (Pvt) Limited, a Pakistan corporation, and NetSol (UK) Limited, a
United Kingdom corporation ("NetSol UK"), on the one hand, and Mirage
Holdings, Inc., a Nevada corporation, on the other hand. All capitalized
terms not otherwise defined herein shall have the respective meanings
assigned to them in the Agreement.
2. All representations and warranties of SGO set forth in the Agreement
are true and correct as of the date of the Agreement and as of the Closing as
though made on and as of the Closing, except: (i) as otherwise contemplated
by the Agreement; or (ii) in respects that do not have a Material Adverse
Effect on SGO or on the benefits of the transactions provided for in the
Agreement.
3. SGO have performed all agreements and covenants required to be
performed by it under the Agreement prior to the Closing, except for breaches
that do not have a Material Adverse Effect on SGO or on the benefits of the
transactions provided for in the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this certificate as of
the 15th day of September, 1998.
SGO:
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
/s/ Xx. Xxxxxx UO-Din Ghauri
-----------------------------------------
Print name here: Xx. Xxxxxx UO-Din Ghauri
/s/ Xxx. Xxxxxxx Xxxxxx
-----------------------------------------
Print name here: Xxx. Xxxxxxx Xxxxxx
/s/ Mrs. Aamrah Ghauri
-----------------------------------------
Print name here: Mrs. Aamrah Ghauri
[LETTERHEAD]
September 15, 1998
MIRAGE HOLDINGS, INC. ACQUISITION AGREEMENT WITH XXXXX XXXXXX AND OTHERS,
NETWORK SOLUTIONS (PVT) LIMITED, AND NETSOL (UK) LIMITED
CLOSING MEMORANDUM
This Memorandum outlines the action taken in connection with the sale by
Xxxxx Xxxxxx and Others (SGO") of 51% of the issued and outstanding capital
stock of Network Solutions (Pvt) Limited, a Pakistan corporation ("NetSol
Pvt") and of 43% of the issued and outstanding capital stock of NetSol (UK)
Limited, a United Kingdom corporation (NetSol UK"), (collectively, the
"Shares") to Mirage Holdings, Inc., a Nevada corporation ("Mirage") in
exchange for the payment of $775,000 and 490,000 shares of common stock of
Mirage, such sale being made pursuant to an Acquisition Agreement (the
"Agreement"), dated as of the date of the Closing as defined in the
Agreement, among the Parties. All capitalized terms used herein have that
meaning as defined in the Agreement.
1. ACTIONS TAKEN PRIOR TO THE CLOSING.
A. ACTIONS TAKEN BY MIRAGE, SGO, NETSOL PVT, AND NETSOL UK. At a
meetings of the respective Board of Directors of each party, the respective
Boards of Directors took all corporate action necessary to: (i) authorize the
purchase and sale of the capital stock; (ii) authorize the execution and
delivery of the Agreement; and (iii) fulfill the conditions precedent of each
party as set forth in the Agreement.
B. TIMING. The parties agreed that the transaction would be
completed in two separate steps:
i. THE SIGNING. The signing of the Agreement and all other
documents related thereto would be held on September 15, 1998 (the "Signing
Date"), at the offices of the Xxxxxxx & Xxxx, Xxx Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx, 00000.
ii. THE CLOSING. The closing of the Agreement (i.e., the
exchange of the capital stock for the cash payment as set forth in the
Agreement) will be held as soon as practicable after the execution of the
Agreement (the "Closing Date").
2. THE SIGNING.
The Signing was held on September 15, 1998 (the "Signing Date"), at
the offices of the Xxxxxxx & Beam, Xxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx, 00000.
At the Signing, each party delivered to the other all required corporate
documents and consents as set forth in the Agreement.
September 14, 1998
Page 2
Also at the signing, the parties executed and delivered each to the other,
unless waived, the following documents:
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DOCUMENT SIGNATORIES DELIVERY TO
-------------------------------------------------------------------------------------------------------------------
Acquisition Agreement Mirage Mirage
SGO SGO
NetSol Pvt NetSol Pvt
NetSol UK NetSol UK
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List of Shareholders - Exhibit A SGO Mirage
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Legal Opinion - Exhibit B Counsel for SGO, NetSol Mirage
Pvt, and NetSol UK
-------------------------------------------------------------------------------------------------------------------
Certificate of Secretary of Mirage Xxxxxx X. Xxxxxx Mirage Corporate Records
SGO
NetSol Pvt
NetSol UK
-------------------------------------------------------------------------------------------------------------------
Consent of Mirage Directors Xxxxxx X. Xxxxxx Mirage Corporate Records
Gill Champion SGO
Xxxxx Xxxxxxx NetSol Pvt
NetSol UK
-------------------------------------------------------------------------------------------------------------------
Certificate of Vice President and Chief Gill Champion Mirage Corporate Records
Financial Officer of Mirage SGO
NetSol Pvt
NetSol UK
-------------------------------------------------------------------------------------------------------------------
Certificate of Officers of NetSol Pvt Officers of NetSol Pvt NetSol Pvt Corporate
Records
Mirage
-------------------------------------------------------------------------------------------------------------------
Certificate of Officers of NetSol UK Officers of NetSol UK NetSol UK Corporate
Records
Mirage
-------------------------------------------------------------------------------------------------------------------
Certificate of SGO SGO SGO Records
Mirage
-------------------------------------------------------------------------------------------------------------------
The Signing was then declared completed.
3. THE CLOSING.
At the Closing, Mirage delivered to SGO a check in the amount of
$500,000 as the Purchase Price under the Agreement.
At the Closing, SGO delivered to Mirage certificates representing the
Shares as designated in Section 1.1 of the Agreement.
At the Closing, Mirage delivered to SGO the Shares as designated in
Section 1.2 of the Agreement.
The Closing was then declared completed.
September 14, 1998
Page 3
4. ACTION SUBSEQUENT TO THE CLOSING.
Not later than 15 days after the Closing Date, Mirage, pursuant to any
and all requirements of the Securities Act of 1933, as amended, and the
Securities and Exchange Act of 1934, as amended, shall file any and all
required documents with the United States Securities and Exchange Commission.
