EXHIBIT 10.1
STOCK PURCHASE AND EXCHANGE AGREEMENT
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THIS STOCK PURCHASE AND EXCHANGE AGREEMENT (this "Agreement") is made
and entered into as of the 14th day of July 1998, by and between Dentmart Group,
Inc., a Colorado corporation (the "Company"), and the individuals whose names
appear on the signature page hereof.
A. The Company has authorized a 1 for 1.65 reverse stock split (the
"Reverse Stock Split") and an increase in the number of authorized shares of
common stock of the Company (the "Authorized Share Increase"). The Company has
authorized a merger (the "Merger") with its wholly-owned subsidiary, XXXXX,
Incorporated, a Delaware corporation, in order to change the State of
Incorporation to Delaware and the name of the Company to XXXXX, Incorporated, to
effect the Reverse Stock Split and the Authorized Share Increase. Upon execution
of this Agreement, the documents required to effect the Merger (drafts of which
have been approved by all parties and pre-cleared by the state authorities) will
be filed with the States of Colorado and Delaware. Immediately following the
Merger there will be approximately 3,030,800 shares of the Company's Common
Stock, $.005 par value (the "Company's Common Stock"), issued and outstanding.
B. CMP Solutions, Inc., an Arizona corporation ("CMP"), is a recently
formed corporation whose issued and outstanding common stock (the "CMP Stock")
is owned, beneficially and of record, by the individuals whose names appear on
the signature page hereof (the "Purchasers"), who together own an aggregate of
1,000,000 shares of CMP Stock in the respective numbers of shares set forth
opposite the name of each.
C. The Company desires to issue and sell to the Purchasers, and each of
them desires to purchase and acquire from the Company, shares of the Company's
Common Stock, in consideration of the exchange therefor of all of the issued and
outstanding shares of the CMP Stock, on the terms and subject to the conditions
set forth herein;
D. The parties hereto intend that the issuance of the shares of the
Company's Common Stock in exchange for all of the CMP Stock shall qualify as a
"tax-free" reorganization as contemplated by the provisions of Section
368(a)(1)(B) of the Internal Revenue Code of 1954, as amended.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants, agreements, representations and warranties contained herein,
the parties hereto agree as follows:
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ARTICLE 1
1.1 Immediately upon the Merger becoming effective, the Company will
sell, and each of the Purchasers will, severally and not jointly, purchase from
the Company an aggregate of 9,200,000 of authorized and newly issued shares of
the Company's Common Stock, with the number of shares to be purchased by each to
be as set forth opposite his name on the signature page hereof in exchange for
that respective number of shares of CMP Stock owned by each Purchaser which is
set forth opposite his name on the signature page hereof.
ARTICLE 2
CLOSING AND POST-CLOSING
The consummation of the sale to and purchase by the Purchasers
of the Company's Common Stock contemplated hereby (the "Closing") shall be
effective upon final execution and delivery by all parties of this Agreement and
each of the agreements and certificates specified in this Article 2 (the
"Closing Date"). If the Closing fails to occur by July 31, 1998, or by such
later date to which the Closing may be extended as provided hereinabove, this
Agreement shall automatically terminate, all parties shall pay their own
expenses incurred in connection herewith, and no party hereto shall have any
further obligations hereunder; At the Closing, as conditions thereto,
(a) The Company shall deliver, or cause to be delivered, to the
Purchasers:
(i) Certificates for the shares of the Company's Common
Stock being purchased for their respective accounts,
in form and substance reasonably satisfactory to the
Purchasers and their counsel (these certificates will
be delivered after the Merger becomes effective);
(ii) The releases and other agreements specified in
Section 6.3(c) below, if any;
(iii) Resignations of the Company's officers and directors
specified in Section 6.3(d) below; and
(iv) The Registration Rights Agreements specified in
Section 6.3(e) below.
(v) Accurate and complete minutes containing all of the
resolutions and minutes of the Company's Board and
shareholders meetings.
(b) The Purchasers shall deliver to the Company:
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(i) A stock certificate or certificates evidencing the
ownership of each Purchaser of all shares of CMP
Stock owned by them, duly endorsed for transfer to
the Company;
(ii) The certificate of the Purchasers and CMP specified
in Section 6.4(a) below;
(iii) The certified resolutions of CMP specified in Section
6.4(b) below;
(iv) The releases specified in Section 6.4(c) below; and
(v) The Registration Rights Agreements referred to in
Section 6.3(e) below.
(c) Following the Closing, the Company will effect the Merger and the
issuance of the shares of the Company's Common Stock to the Purchasers. The
Company's present management and legal counsel will assist in reporting these
events to the U.S. Securities and Exchange Commission on Form 8-K upon receipt
of a written request from the Purchasers.
(d) The Purchasers acknowledge that $125,000 is due to Xxxx XxXxxxx
from the Company and the Purchasers agree that Xx. XxXxxxx will be paid out of
any funds received by the Company or CMP, or both, from private placements,
equity or debt financings, or any other source of equity funding.
(e) Other than as otherwise allowed or contemplated by this Agreement,
for a period of eighteen months from the Closing Date, no reverse stock split or
other form of reorganization (other than the already approved Reverse Stock
Split which is to be effected by the Company), which would have the effect of
causing any portion of currently outstanding shares of the Company to be reduced
to a smaller number or to be otherwise diluted, shall be authorized or
completed, either as part of any merger transaction or for any other reason;
provided that nothing in this Agreement prohibits or limits the Company in any
manner from conducting private placements, public underwritings, mergers and
acquisitions for reasonable value.
ARTICLE 3
The Company hereby represents and warrants to the Purchasers,
and each of them, as follows (it being acknowledged that the Purchasers are
entering into this Agreement in material reliance upon each of the following
representations and warranties, and that the truth and accuracy of each of which
constitutes a condition precedent to the obligations of the Purchasers
hereunder):
3.1 The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado, and is duly qualified
and in good standing to do business as a foreign corporation in each
jurisdiction in which such qualification is required and where the failure to be
so qualified would have a materially adverse effect upon the Company. The
Company has all requisite corporate power and authority to conduct its business
as now being conducted and
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to own and lease the properties which it now owns and leases. The Articles of
Incorporation as amended to date, certified by the Secretary of State of
Colorado, and the Bylaws of the Company as amended to date, certified by the
President and the Secretary of the Company, which have been delivered to the
Purchasers prior to the execution hereof are true and complete copies thereof as
in effect as of the date hereof.
3.2 The Company has full power, legal capacity and authority to enter
into this Agreement, to execute all attendant documents and instruments
necessary to consummate the transactions herein contemplated, and to issue and
sell the Company's Common Stock to the Purchasers and to perform all of its
obligations hereunder. This Agreement and all other agreements, documents and
instruments to be executed in connection herewith have been effectively
authorized by all necessary action, corporate or otherwise, on the part of the
Company, which authorizations remain in full force and effect, have been duly
executed and delivered by the Company, and no other corporate proceedings on the
part of the Company are required to authorize this Agreement and the
transactions contemplated hereby. This Agreement constitutes the legal, valid
and binding obligation of the Company and is enforceable with respect to the
Company in accordance with its terms, except as enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, priority or other laws or
court decisions relating to or affecting generally the enforcement of creditors'
rights or affecting generally the availability of equitable remedies. Neither
the execution and delivery of this Agreement, nor the consummation by the
Company of any of the transactions contemplated hereby, or compliance with any
of the provisions hereof, will (i) conflict with or result in a breach of,
violation of, or default under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, lease, credit agreement or other
agreement, document, instrument or obligation (including, without limitation,
any of its charter documents) to which the Company is a party or by which the
Company or any of its assets or properties may be bound, or (ii) violate any
judgment, order, injunction, decree, statute, rule or regulation (collectively,
"Laws") applicable to the Company or any of the assets or properties of the
Company. No authorization, consent or approval of any public body or authority
is necessary for the consummation by the Company of the transactions
contemplated by this Agreement.
3.3 Subject to the disclosure on Exhibit A, attached hereto, following
the Merger, the authorized capital stock of the Company will consist of
50,000,000 shares of Common Stock, $.005 par value (defined above as the
"Company's Common Stock"), and 2,000,000 shares of Preferred Stock, $.01 par
value. Following the Merger, there will be approximately 3,030,800 shares of the
Company's Common Stock, $.005 par value (the "Company's Common Stock"), issued
and outstanding and no shares of Preferred Stock issued or outstanding. Prior to
the Closing no options will be granted pursuant to the Company's approved but
not yet established incentive stock option plan. All of the outstanding shares
of the Company's Common Stock have been and all of the Company's Common Stock to
be issued and sold to the Purchasers pursuant to this Agreement will be, duly
authorized, validly issued, fully paid and nonassessable. Except as set forth
above in this Section 3.3, there are no warrants, options, calls, commitments or
other rights to subscribe for or to purchase from the Company any capital stock
of the Company or any securities convertible into or
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exchangeable for any shares of capital stock of the Company, or any other
securities or agreement pursuant to which the Company is or may become obligated
to issue any shares of its capital stock, nor is there outstanding any
commitment, obligation or agreement on the part of the Company to repurchase,
redeem or otherwise acquire any outstanding shares of the Company's Common
Stock. There currently are no rights, agreements or commitments of any character
obligating the Company, contingently or otherwise, to register any shares of its
capital stock under any applicable federal or state securities laws. All of the
Company's Common Stock to be issued and sold to the Purchasers pursuant to this
Agreement will be free and clear of (i) any lien, charge, mortgage, pledge,
conditional sale agreement, or other encumbrance of any kind or nature
whatsoever, and (ii) any claim as to ownership thereof or any rights, powers or
interest therein by any third party, whether legal or beneficial, and whether
based on contract, proxy or other document or otherwise.
3.4. Attached hereto as Exhibit B is a true and complete copies of the
Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1998,
which contains the audited financial statements of the Company for the year
ended March 31, 1998, reported upon by Xxxxxx X. Xxxxxxxxx, independent
certified public accountant. Such financial statements (and the notes related
thereto) are herein sometimes collectively referred to as the "Company Financial
Statements," and the Company's balance sheet as of March 31, 1998 included
therein is hereinafter sometimes referred to as the "Balance Sheet." The Company
Financial Statements (i) are derived from the books and records of the Company,
which books and records have been consistently maintained in a manner which
reflects, and such books and records do fairly and accurately reflect, the
assets and liabilities of the Company, (ii) fairly and accurately present the
financial condition of the Company on the respective dates of such statements
and the results of its operations for the periods indicated, except as may be
disclosed in the notes thereto, and (iii) have been prepared in all material
respects in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
disclosed in the notes thereto). The Company has made all filings with the
Securities and Exchange Commission (the "SEC") that it has been required by law
to make within the past the past three (3) years under the Securities Act of
1933, as amended (the "Securities Act"), and the Securities Exchange Act of
1934, as amended (the "Exchange Act") (collectively, the "Public Filings"). Each
of the Public Filings has complied with the Securities Act and the Exchange Act
in all material respects. None of the Public Filings, as of their respective
dates, contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The Company has
delivered to the Purchasers a correct and complete copy of the most recent
Public Filing (as amended to date). The Company is in compliance with, in all
material respects, the rules and regulations of each stock exchange on which the
Company's stock is, or has at any time been, listed.
3.5 The Company has no subsidiaries and no investments, directly or
indirectly, or other financial interest in any other corporation or business
organization, joint venture or partnership of any kind whatsoever except as
reflected in the Company Financial Statements.
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3.6 Except as and to the extent reflected or reserved against in the
Balance Sheet or disclosed in Exhibit C attached hereto, the Company has no
liability(s), liens, encumbrances or obligation(s) (whether accrued, to become
due, contingent or otherwise) which individually or in the aggregate could have
a materially adverse effect on the business, assets, properties, condition
(financial or otherwise) or prospects of the Company.
3.7 Except as disclosed in Exhibit C attached hereto, since the date of
the Balance Sheet there has been no materially adverse change in the condition
(financial or otherwise) of the Company or in its assets, liabilities,
properties, business, operations or prospects.
3.8 There are no actions, suits or proceedings pending or, to the best
of the Company's knowledge, threatened against or affecting the Company
(including actions, suits or proceedings where liabilities may be adequately
covered by insurance) at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, court, board, bureau,
agency or instrumentality, domestic or foreign, or affecting any of the officers
or directors of the Company in connection with the business, operations or
affairs of the Company, which might result in any adverse change in the
business, properties or assets, or in the condition (financial or otherwise) of
the Company, or which might prevent the sale of the Shares pursuant to this
Agreement. The Company is not subject to any voluntary or involuntary proceeding
under the United States Bankruptcy Code and has not made an assignment for the
benefit of creditors.
3.9 The Company has no obligation to any person or entity for brokerage
commissions, finder's fees or similar compensation in connection with the
transactions contemplated by this Agreement, and the current officers, directors
and 5% shareholders of the Company shall jointly and severally indemnify and
hold the Purchasers and the Company harmless against any liability or expenses
arising out of any such claim, asserted against either the Purchasers or the
Company by any party.
3.10 The Company, through its current officers and directors, has the
knowledge and experience in business and financial matters to meaningfully
evaluate the merits and risks of the issuance of the Company's Common Stock in
exchange and consideration for the CMP Stock as contemplated hereby. The Company
understands and acknowledges that the CMP Stock was originally issued to the
Purchasers, and will be sold and transferred to the Company, without
registration or qualification under the Securities Act of 1933, as amended, or
any applicable state securities or "Blue Sky" law, in reliance upon specific
exemptions therefrom, and in furtherance thereof the Company represents that the
CMP Stock will be taken and received by the Company for its own account for
investment, with no present intention of a distribution or disposition thereof
to others. The Company further acknowledges and agrees that the certificate(s)
representing the CMP Stock transferred to the Company shall bear a restrictive
legend, in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), ARE "RESTRICTED SECURITIES," AND MAY NOT
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BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR IN A
TRANSACTION WHICH, IN THE OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, IS NOT REQUIRED TO BE REGISTERED UNDER THE ACT."
3.11 Neither this Agreement, nor any certificate, exhibit, or other
written document or statement, furnished to the Purchasers by the Company in
connection with the transactions contemplated by this Agreement contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary to be stated in order to make the statements contained
herein or therein not misleading.
3.12 Tax Matters. The Company has filed all returns, declarations,
reports, estimates, information returns and statements and other documents (the
"Returns") required to be filed by or for the Company in respect of all federal,
state, local and foreign taxes, assessments and governmental charges of any kind
whatsoever, whether payable directly, by withholding or otherwise, together with
any interest, penalties, additions to tax or additional amounts imposed by any
taxing authority with respect thereto (collectively, "Taxes" or "Tax"), and the
information contained in each such Return is complete and accurate in all
material respects. There are no pending audits, actions, proceedings,
investigations or claims relating to any asset or liability of the company in
respect of taxes, and there is no basis for any such claim which is likely to
result in a Tax liability being imposed for any period prior to the Closing. The
Company has, within the time and in the manner prescribed by law, withheld from
employee wages and paid over to the proper governmental authorities all amounts
required to be so withheld and paid over under all applicable Laws. The Company
has not requested any extension of time within which to file any Return, which
Return has not since been (or will not be) timely filed. No deficiency for any
Taxes has been proposed, asserted or assessed against the Company which has not
been resolved and paid in full. There are no outstanding waivers or comparable
consents regarding the application of he statute of limitations with respect to
any Taxes or Returns that have been given by the Company. There are no pending
administrative proceedings, including but not limited to federal, state, local
or foreign audits, or court proceedings with regard to any Taxes or Returns. No
power of attorney has been granted by the Company with respect to any matter
relating to Taxes which is currently in force. The Company is not a party to nay
agreement or arrangement providing for the allocation or sharing of Taxes. The
Company is not required to include in income any adjustment pursuant to Section
481(a) of the Code by reason of a voluntary change in accounting method
initiated by the Company or as a result of the Tax Reform Act of 1986, and the
Internal Revenue Service has not proposed any such adjustment or change in
accounting method.
3.13 Contracts. Other than the contracts listed on Schedule 3.13
attached hereto, the Company is not a party to, nor is bound by, any agreement
or contract. The Company has provided the Purchasers with true, accurate and
complete copies of, or in the case of oral contracts, written summaries of, all
the contracts listed on Schedule 3.13. The Company is not in default or breach
of any contract or agreement to which it is a party or by which it is bound.
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3.14 Compliance with Laws. The Company has never violated any Laws, the
violation of which could have a material adverse effect on the Company's
business, assets or capital stock value. The Company's conduct of its business
has not in the past nor does not currently violate, in any material respect, any
Laws. The company has filed all material returns, reports and other documents
and furnished all information required or requested by any federal, state, local
or foreign governmental agency and all such returns, reports, documents and
information are true and complete in all material respects regarding the Company
and its business.
ARTICLE 4
Each of the Purchasers severally and not jointly hereby represents and
warrants to the Company as follows (it being acknowledged that the Company is
entering into this Agreement in material reliance upon each of the following
representations and warranties, that the truth and accuracy of each of which
constitutes a condition precedent to the obligations of the Company hereunder):
4.1 Each of the Purchasers has full power, legal capacity and authority
to enter into this Agreement, to execute all attendant documents and instruments
necessary to consummate the transactions herein contemplated, and to perform all
of the obligations to be performed by him hereunder. This Agreement and all
other agreements, documents and instruments to be executed by the Purchasers in
connection herewith have been duly executed and delivered and constitute the
legal, valid and binding obligations of the Purchasers executing and delivering
the same, and are enforceable with respect to such Purchasers in accordance with
their terms, except as enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, priority or other laws or court decisions relating
to or affecting generally the enforcement of creditors' rights or affecting
generally the availability of equitable remedies. No authorization, consent or
approval of any public body or authority is necessary for the consummation by
the Purchasers of the transactions contemplated hereby.
4.2 The Purchasers together collectively own an aggregate of 1,000,000
shares of CMP Stock, constituting all of the issued and outstanding shares of
capital stock of CMP, free and clear of (i) any lien, charge, mortgage, pledge,
conditional sale agreement, or other encumbrance of any kind or nature
whatsoever, and (ii) any claim as to ownership thereof or any rights, powers or
interest therein by any third party, whether legal or beneficial, and whether
based on contract, proxy or other document or otherwise. All of the shares of
CMP Stock have been duly authorized and validly issued and are fully paid and
nonassessable. CMP is not currently authorized to issue any shares of preferred
stock.
4.3 CMP is a corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona, and is duly qualified and in
good standing to do business as a foreign corporation in each jurisdiction in
which such qualification is required and where the failure to be
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so qualified would have a materially adverse effect upon CMP. CMP has all
requisite corporate power and authority to conduct its business as now being
conducted and to own and lease the properties which it now owns and leases. The
Articles of Incorporation of CMP as amended to date, certified by the Secretary
of State of Arizona, and the Bylaws of CMP as amended to date, certified by the
President and the Secretary of CMP, which have been delivered to the Company
prior to the execution hereof are true and complete copies thereof as in effect
as of the date hereof.
4.4 CMP was incorporated in June, 1998, and has yet to conduct any
significant business or operations. CMP has no subsidiaries and no investments,
directly or indirectly, or other financial interest in any other corporation or
business organization, joint venture or partnership of any kind whatsoever. CMP
has no liability(s) or obligation(s)(whether accrued, to become due, contingent
or otherwise) which individually or in the aggregate could have a materially
adverse effect on the business, assets, properties, condition (financial or
otherwise) or prospects of CMP, and since June, 1998, there has been no
materially adverse change in the condition (financial or otherwise) of CMP or in
its assets, liabilities, properties, business, operations or prospects.
Effective upon the Closing, all contracts in force, proprietary systems,
computer technology and other intellectual property developed or in development
by CMP or by others for CMP (hereinafter referred to as the "CMP Properties")
shall be the property of CMP whether now owned by CMP or the Purchasers. A
complete list of the CMP properties is described in Exhibit D attached hereto.
Also attached as Exhibit D is the most recent draft of the Business Plan for
CMP.
4.5 There are no actions, suits or proceedings pending or, to the best
of the Purchasers' knowledge, threatened against or affecting any of the
Purchasers or CMP (including actions, suits or proceedings where liabilities may
be adequately covered by insurance) at law or in equity or before any federal,
state, municipal or other governmental department, commission, court, board,
bureau, agency or instrumentality, domestic or foreign, or affecting any of the
officers or directors of CMP in connection with the business, operations or
affairs of CMP which might result in any material adverse change in the
business, properties or assets, or in the condition (financial or otherwise) of
CMP, or which might prevent the purchase of the Company's Common Stock by the
Purchasers or the transfer to the Company of the CMP Stock by the Purchasers
pursuant to this Agreement or the performance by the Purchasers of any of the
obligations to be performed by the Purchasers under this Agreement. Neither CMP
nor any of the Purchasers is subject to any voluntary or involuntary proceeding
under the United States Bankruptcy Code, nor have any of them made an assignment
for the benefit of creditors.
4.6 Each Purchaser has the knowledge and experience in business and
financial matters to meaningfully evaluate the merits and risks of the purchase
and acquisition of the Company's Common Stock in exchange and consideration for
the shares of CMP Stock owned by him as contemplated hereby. Each Purchaser
acknowledges that the shares of the Company's Common Stock to be issued to him
in the transactions contemplated hereby will be issued by the Company without
registration or qualification or other filings being made under the Federal
Securities Act of 1933, as amended, or the securities or "Blue Sky" laws of any
state, in reliance upon specific exemptions therefrom, and in furtherance
thereof each Purchaser represents that the shares of the
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Company's Common Stock to be received by him will be taken for his own account
for investment, with no present intention of a distribution or disposition
thereof to others. Each Purchaser agrees that the certificate(s) representing
the shares of the Company's Common Stock issued to him shall be subject to a
stop-transfer order and shall bear a restrictive legend, in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), ARE "RESTRICTED SECURITIES," AND MAY NOT
BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR IN A
TRANSACTION WHICH, IN THE OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, IS NOT REQUIRED TO BE REGISTERED UNDER THE ACT."
4.7 The Purchasers have no obligation to any person or entity for
brokerage commissions, finder's fees or similar compensation in connection with
the transactions contemplated by this Agreement, and the Purchasers shall
jointly and severally indemnify and hold the Company harmless against any
liability or expenses arising out of any such claim asserted against the
Company.
4.8 Neither this Agreement, nor any certificate, exhibit, or other
written document or statement, furnished to the Company by the Purchasers in
connection with the transactions contemplated by this Agreement contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary to be stated in order to make the statements contained
herein or therein not misleading.
ARTICLE 5
The Company and the Purchasers hereby covenant to and agree with the
other that between the date hereof and the Closing:
5.1 The Company and the Purchasers shall each give to other and
authorized representatives thereof full access, during reasonable business
hours, in such a manner as not unduly to disrupt normal business activities, to
any and all of the premises, properties, contracts, books, records and affairs
of the Company or CMP, as the case may be, and will cause the officers of the
Company or CMP, as the case may be, to furnish any and all data and information
pertaining to its business that the other may from time to time reasonably
require. Unless and until the transactions contemplated by this Agreement have
been consummated, each party and its representatives shall hold in confidence
all information so obtained and if the transactions contemplated hereby are not
consummated will return all documents hereinabove referred to and obtained
therefrom. Such obligation of confidentiality shall not extend to any
information which as shown to have been previously (i) known to the party
receiving it (ii) generally known to others engaged in the trade or business of
the Company or CMP, as the case may be, (iii) part of public knowledge or
literature, or (iv) lawfully received from a third party.
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5.2 The current officers and directors of the Company and the
Purchasers shall each take all necessary actions to cause the Company and CMP,
respectively, to maintain in full force and effect its corporate existence,
rights, franchises and good standing, and shall not cause or permit to be made
any change in the Articles or Bylaws of the Company or CMP, as the case may be.
5.3 The Purchasers shall take all commercially reasonable actions to
cause CMP to conduct its business in the ordinary course of business as an
ongoing concern and to maintain the books, accounts and records of CMP in the
usual, regular and ordinary manner.
ARTICLE 6
The respective obligations of the parties hereto to consummate the
transactions contemplated hereby shall be subject to the fulfillment, at or
prior to the Closing, of the following conditions:
6.1 There shall have been obtained any and all permits, approvals and
qualifications of, and there shall have been made or completed all filings,
proceedings and waiting periods, required by any governmental body, agency or
regulatory authority which, in the reasonable opinion of counsel to the
Purchasers and to the Company, are required for the consummation of the
transactions contemplated hereby.
6.2 No claim, action, suit, investigation or other proceeding shall be
pending or threatened before any court or governmental agency which presents a
substantial risk of the restraint or prohibition of the transactions
contemplated by this Agreement or the obtaining of material damages or other
relief in connection therewith.
6.3 The obligation of the Purchasers hereunder to consummate the
transactions contemplated by this Agreement are expressly subject to the
satisfaction of each of the further conditions set forth below, any or all of
which may be waived by the Purchasers in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall constitute a waiver
by the Purchasers of any other condition or of any of their rights or remedies,
at law or in equity, if the Company shall be in default or breach of any of its
representations, warranties or covenants under this Agreement:
(a) The Company shall have performed the agreements and
covenants required to be performed by them under this Agreement prior to the
Closing, there shall have been no material adverse changes in the condition
(financial or otherwise), assets, liabilities, earnings or business of the
Company since the date hereof, and the representations and warranties of the
Company contained herein shall, except as contemplated or permitted by this
Agreement or as qualified in Exhibit C, attached hereto, be true in all material
respects on and as of the date of Closing as if made on and as of such date.
(b) Attached as Exhibit A are copies of resolutions (which are
and will be in full force and effect as of the Closing Date) duly adopted by the
Board of Directors of the Company
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adopting and approving this Agreement and the other documents, agreements and
instruments to be entered into by the Company as provided herein.
(c) The Company shall have obtained written releases, in form
and substance reasonably satisfactory to the Purchasers from each person who may
be entitled, if any, to receive a finders fee or other commission from the
Company as a consequence of the transactions contemplated hereby.
(d) Each of the current officers and directors of the Company
shall have resigned all of their respective offices of the Company, effective as
of the Closing Date, electing the following individuals to the Board of
Directors of the Company:
1. Xxx Xxxxxxx
2.
3.
4.
(e) The Company shall have executed and delivered a
Registration Rights Agreement to each of the undersigned, dated as of the date
of Closing, in the form thereof attached hereto as Exhibit E.
6.4 The obligation of the Company to consummate the transactions
contemplated by this Agreement is expressly subject to the further conditions
set forth below:
(a) The Purchasers and CMP shall have performed the agreements
and covenants required to be performed by them under this Agreement prior to the
Closing, there shall have been no material adverse change in the condition
(financial or otherwise), assets, liabilities, earnings or business of the CMP
since the date hereof, and the representations and warranties of the Purchasers
contained herein shall, except as contemplated or permitted by this Agreement,
be true in all material respects on and as of the date of Closing as if made on
and as of such date;
(b) The Company shall have received copies of resolutions
(certified as of the date of the Closing as being in full force and effect by an
appropriate officer of CMP) duly adopted by the Board of Directors of CMP
adopting and approving the agreements and covenants to be performed by CMP under
this Agreement, which shall be in form and substance reasonably satisfactory to
the Company.
(c) The Purchasers shall have obtained written releases, in
form and substance reasonably satisfactory to the Company, from each person who
may be entitled to receive a finders fee or other commission from the Purchasers
as a consequence of the transactions contemplated hereby.
12
ARTICLE 7
7.1 The Company and the Purchasers shall each pay all of their own
respective taxes, attorneys' fees and other costs and expenses payable in
connection with or as a result of the transactions contemplated hereby and the
performance and compliance with all agreements and conditions contained in this
Agreement respectively to be performed or observed by each of them.
7.2 The respective representations and warranties contained herein and
in any other document or instrument delivered by or on behalf of the Company and
the Purchasers shall survive the Closing for a period of one full year and
thereupon expire and be of no further force and effect. Nothing contained in
this Section 7.2 shall in any way affect any obligations of any party under this
Agreement that are to be performed, in whole or in part, at any time after the
Closing, nor shall it prevent or preclude any party from pursuing any and all
available remedies at law or in equity for actual fraud in the event that, prior
to the Closing, any other party had actual knowledge of any material breach of
any of its representations and warranties herein but failed to disclose to or
actively concealed such knowledge prior to the Closing from the other party(s)
to whom the representations and warranties were made.
ARTICLE 8
8.1 Each of the parties hereto shall execute and deliver such other and
further documents and instruments, and take such other and further actions, as
may be reasonably requested of them for the implementation and consummation of
this Agreement and the transactions herein contemplated.
8.2 This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and the heirs, personal representatives, successors and
assigns of all of them, but shall not confer, expressly or by implication, any
rights or remedies upon any other party.
8.3 This Agreement is made and shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware.
8.4 All notices, requests or demands and other communications hereunder
must be in writing and shall be deemed to have been duly made if personally
delivered or mailed by registered or certified mail, return receipt requested,
postage prepaid, to the parties as follows:
(a) If to the Company, to: Xxxx XxXxxxx
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xx. 00000
Tel : 000-000-0000
With a copy to: Xxxxxx X. Xxxx, Esq.
00000 Xxxxxx Xxxxxx
00
Xxxx Xxxxx, XX 00000
Tel: 000-000-0000
(b) If to any of the Shareholders, to:
c/o CMP Solutions Inc.
0000 X. 00xx Xx.
Suites # 2 & 3
Xxxxx, XX. 00000
With a copy to: Xxxxxxx & Xxxxx
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: P. Xxxxxx Xxxx
Any party hereto may change its address by written notice to the other
party given in accordance with this Section 8.4.
8.5 This Agreement and the exhibits attached hereto contain the entire
agreement between the parties and supersede all prior agreements, understandings
and writings between the parties with respect to the subject matter hereof and
thereof. Each party hereto acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any party, or
anyone acting with authority on behalf of any party, which are not embodied
herein or in an exhibit hereto, and that no other agreement, statement or
promise may be relied upon or shall be valid or binding. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally.
This Agreement may be amended or any term hereof may be changed, waived,
discharged or terminated by an agreement in writing signed by all parties
hereto.
8.6 Prior to the Closing, neither the execution of this Agreement nor
the performance of any provision contained herein shall cause any party hereto
to be or become liable in any respect for the operations of the business of any
other party, or the condition of property owned by any other party, for
compliance with any applicable laws, requirements, or regulations of, or taxes,
assessments or other charges now or hereafter due to any governmental authority,
or for any other charges or expenses whatsoever pertaining to the conduct of the
business or the ownership, title, possession, use, or occupancy of any other
party.
8.7 The captions and headings used herein are for convenience only and
shall not be construed as a part of this Agreement.
8.8 In the event of any litigation between the parties hereto, the
non-prevailing party shall pay the reasonable expenses, including the attorneys'
fees, of the prevailing party in connection therewith.
14
8.9 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which taken together shall
constitute but one and the same document. A Signature received via Telefax will
be deemed as an original signature for the purpose of this Agreement.
15
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
DENTMART GROUP, INC.
By: /s/ Xxxx X. XxXxxxx
--------------------------------
Xxxx X. XxXxxxx, President
"Purchasers"
/s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
128,935 shares of CMP Stock
1,186,200 shares of Company's Common Stock
/s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx
128,935 shares of CMP Stock
1,186,200 shares of Company's Common Stock
/s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx
103,484 shares of CMP Stock
952,054 shares of Company's Common Stock
/s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx
58,637 shares of CMP Stock
539,463 shares of Company's Common Stock
16
/s/ Xxx Xxxxxxx
------------------------------------
Xxx Xxxxxxx
128,935 shares of CMP Stock
1,186,200 shares of Company's Common Stock
/s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx
128,935 shares of CMP Stock
1,186,200 shares of Company's Common Stock
/s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx
128,935 shares of CMP Stock
1,186,200 shares of Company's Common Stock
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
103,148 shares of CMP Stock
948,960 shares of Company's Common Stock
/s/ L. Xxxxxxx Xxxxx
------------------------------------
L. Xxxxxxx Xxxxx
20,630 shares of CMP Stock
189,792 shares of Company's Common Stock
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
69,426 shares of CMP Stock
638,731 shares of Company's Common Stock
-End-
17
