ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION
THIS ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION (hereinafter
the "Agreement") is made and entered into this 7th day of April, 2000, by and
among OTS Holdings, Inc., a Colorado corporation, (hereinafter "OTS"); Thin
Film Battery, Inc., a Nevada corporation, (hereinafter "Thin Film"); and the
individual shareholders of Thin Film as set forth on the signature page herein
(collectively referred to as "Shareholders" and individually as
"Shareholder").
RECITALS
WHEREAS, OTS desires to acquire all of the issued and outstanding shares
of Thin Film capital stock in exchange for 15,340,002 shares of authorized,
but previously unissued, OTS common stock pursuant to the terms and conditions
set forth herein;
WHEREAS, Shareholders desire to exchange all of their shares of Thin Film
capital stock for shares of OTS common stock in the respective amounts set
forth herein; and
WHEREAS, the parties hereto desire to reorganize the management and
operations of OTS and to change the corporation name to Thin Film Battery,
Inc.
NOW, THEREFORE, in consideration of the premises and mutual
representation, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1 Acquisition and Plan of Reorganization. The parties hereby agree
that OTS shall acquire all of the issued and outstanding shares of Thin Film
capital stock in exchange for 15,340,002 shares of authorized, but previously
unissued, shares of OTS common stock, par value .001 per share. It is also
agreed to by the parties hereto that by acquiring all of the shares of Thin
Film capital stock, OTS will acquire all rights, title and interest to assets
and property presently owned by Thin Film, including all rights and interest
in a contract with Oakridge National Labororatories. Said assets and property
may be subject to certain interests, liens and/or encumbrances which are
further described in the financial statement. The parties hereto hereby
further agree that (i) at the Closing, as hereinafter defined, Thin Film shall
become a wholly-owned subsidiary of OTS; (ii) as promptly as practicable after
the execution of this Agreement, OTS' corporate name shall be changed to Thin
Film Battery, Inc.; and (iii) as promptly as practicable after the Closing,
the necessary steps shall be taken in order to reflect the relocation of OTS'
principal place of business to a location specified by Thin Film.
SECTION 1.2 Issuance of Shares.
(a) Upon the Closing of this Agreement, OTS shall cause to be issued and
delivered to Shareholders or their designees, stock certificates
representing an aggregate 15,340,002 shares (the "OTS Shares") of OTS
common stock.
(b) The OTS Shares to be issued to Shareholders hereunder shall be
authorized, but previously unissued, shares of OTS common stock, and shall
be issued to Shareholders or their designees in the respective amounts set
forth adjacent to each Shareholder's name on the signature page hereof, or
as otherwise set forth herein.
(c) The OTS Shares will not be registered with the Securities and
Exchange Commission, but issued pursuant to the private placement
exemption under Section 4(2) of the Securities Act of 1933, as amended.
All OTS Shares to be issued hereunder are deemed "restricted
securities" as defined by Rule 144 of the Securities Act of 1933, as
amended (the "1933 Act"), and Shareholders, or their designees, shall
represent that they are acquiring the OTS Shares for investment
purposes only and without the intent to make a further distribution of the
OTS Shares. All OTS Shares to be issued to Shareholders or their
designees under the terms of this Agreement shall be issued pursuant to an
exemption from the registration requirements of the 1933 Act, under
Section 4(2) of the 1933 Act and the rules and regulations promulgated
thereunder. Certificates representing the OTS Shares to be issued
hereunder shall bear the following legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be offered
for sale, sold or otherwise transferred except in compliance with the
registration provisions of such Act or pursuant to an exemption from
such registration provisions, the availability of which is to be
established to the satisfaction of the Company.
SECTION 1.3 Closing. The closing of this Agreement and the transactions
contemplated hereby (the "Closing") shall take place on the 5th day of April,
2000 (the "Closing Date"), or at such other time as mutually agreed upon by
the parties hereto, at a time and place stipulated by the parties hereto and
shall be subject to the provisions of Article X of this Agreement. At the
Closing:
(a) Shareholders shall deliver to OTS all stock certificates representing
100% of the issued and outstanding shares of Thin Film capital stock, duly
endorsed, so as to make OTS the sole holder thereof, free and clear of all
claims and encumbrances;
(b) OTS shall deliver to Shareholders or their designees, stock
certificates representing an aggregate of 15,340,002 shares of OTS common
stock and which certificates shall bear a standard restrictive legend in
the form customarily used with restricted securities and as set
forth in Section 1.2(c) above;
(c) OTS shall deliver an Officer's Certificate as described in Sections
9.1 and 9.2 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by OTS are true and
correct as of, or have been fully performed and complied with by, the
Closing Date; and
(d) Thin Film shall deliver an Officer's Certificate as described in
Sections 8.1 and 8.2 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by
Thin Film are true and correct as of, or have been fully performed and
complied with by, the Closing Date.
SECTION 1.4 OTS Special Meeting of Shareholders. Pursuant to this Agreement
and subsequent to the Closing date, OTS shall take all necessary and requisite
action to call for a Special Meeting of Shareholders, in order to transact the
following business:
(a) To ratify this Agreement and all transactions contemplated hereby;
(b) To ratify the amendment or to amend the Articles of Incorporation to
change the corporate name to Thin Film Battery, Inc., or any other name
deemed suitable by the shareholders attending the meeting;
(c) To effect or ratify the effectiveness of a 3 for 1 forward stock
split;
(d) To accept the resignation of the current directors of the Company and
to nominate and elect a new Board of Directors; and
(e) To effect or ratify a 3 for 1 forward split or 2 for 1 dividend of
OTS' outstanding stock.
SECTION 1.5 Consummation of Transaction. If at the Closing, no condition
exists which would permit any of the parties to terminate this Agreement, or a
condition then exists and the party entitled to terminate because of that
condition elects not to do so, then the transactions herein contemplated
shall be consummated upon such date, and then and thereupon, OTS shall file
any additional necessary documents that may be required by the State of
Colorado.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OTS hereby represents, warrants and agrees that:
SECTION 2.1 Organization of OTS. OTS is a corporation duly organized,
validly existing and ingood standing under the laws of the State of Colorado,
is duly qualified and in good standing as a foreign corporation in every
jurisdiction in which such qualification is necessary, and has the
corporate power and authority to own its properties and assets and to transact
the business in which it is engaged. There are no corporations or entities
with respect to which (i) OTS owns any of the outstanding stock or other
interest, or (ii) OTS may be deemed to be in control because of factors
or relationships other than the quantity of stock or other interest owned.
OTS has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement is the legal, valid and binding obligation of OTS, enforceable
against OTS in accordance with its respective terms except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally.
SECTION 2.2 Capitalization of OTS. The authorized capital stock of OTS
consists of 100,000,000 shares of common stock, par value .001 per share, of
which 1,925,697 shares are presently issued and outstanding, subject to a 3 to
1 forward split or 2 for 1 stock dividend. All shares of OTS common stock
currently issued and outstanding have been duly authorized and validly issued
and are fully paid and non-assessable, and have been issued in compliance with
applicable federal and state laws or pursuant to appropriate exemptions
therefrom. There are no options, warrants, rights, call, commitments or
agreements of any character obligating OTS to issue any shares of its capital
stock or any security representing the right to purchase or otherwise receive
any such stock. Shares of OTS common stock to be issued pursuant to this
Agreement, when so issued, will be duly authorized, validly issued, fully paid
and non-assessable.
2.2(1) OTS has certain outstanding indebtedness which the creditors have
agreed to take OTS stock in lieu of cash. The documents relating to these are
available for inspection at its company's office. OTS agrees, after
reorganization, to perform these agreements and issue shares (approximately
159,000 post split) to cancel this indebtedness.
SECTION 2.3 Charter Documents. Copies of the OTS Articles of Incorporation
and Bylaws as xxxxxx to date, are available for inspection at the company's
office.
SECTION 2.4 Corporate Documents. The OTS shareholders list and corporate
minute books are complete and accurate as of the date hereof and the corporate
minute books contains the recorded minutes of all corporate meetings of
shareholders and directors. A copy of the OTS shareholders list is available
for inspection at the company's transfer agent.
SECTION 2.5 Financial Statements. OTS' financial statements are available at
the Company's office and have been prepared by certified public accountants,
and are true and complete in all material respects, having been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis for the periods covered by such statements, and fairly
present, in accordance with generally accepted accounting principles applied
on a consistent basis for the periods covered by such statements, and fairly
present, in accordance with generally accepted accounting principles, the
financial condition of OTS and results of its operations for the periods
covered thereby. Except as otherwise disclosed to Thin Film, there has been
no material adverse change in the business operations, assets, properties,
prospects or condition (financial or otherwise) of OTS taken as a whole from
that reflected in the financial statements referred to in this Section 2.5.
SECTION 2.6 Assets and Liabilities. OTS has good and marketable title to all
of its assets and property, free and clear of any and all liens, claims and
encumbrances. As of the date hereof, OTS does not have any debts, liabilities
or obligations of any nature, whether due or to become due, that are not fully
reflected in the financial statements. As set forth in paragraph 2.2(i), OTS
has indebtedness which the creditors have agreed to receive stock in lieu of
cash payment. The documents reflecting those transactions are available for
inspection at the Company's office.
SECTION 2.7 Contracts. OTS is not a party to or bound by any contract or
commitment, including guaranty whether written or oral, which is not disclosed
in the financial statement or except as set forth in paragraphs 2.2(i) and 2.6
above.
SECTION 2.9 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications, waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by OTS or the
consummation by it of the transactions contemplated hereby.
SECTION 2.10 Compliance with Law and Government Regulations. OTS is in
compliance with and is not in violation of, applicable federal, state, local
or foreign statutes, laws and regulations (including, without limitation, any
applicable building, zoning or other law, ordinance or regulation) affecting
its properties or the operation of its business. OTS is not subject to any
order, decree, judgment or other sanction or any court, administrative agency,
or other tribunal.
SECTION 2.11 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which OTS is a party or which may
result in any material change in the business or condition, financial or
otherwise, of OTS or in any of its properties or assets, or which might result
in any liability on the part of OTS, or which questions the validity of this
Agreement or of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, and to the best knowledge of OTS, there
is no basis for any such litigation, arbitration or proceeding. OTS does not
use any trademark, service xxxx, trade name, or copyright in its business, nor
does it own any trademarks, trade xxxx registrations of application, trade
name, service xxxx or application. No person owns any trade xxxx, trade xxxx
registration or application, service xxxx, trade name, copyright, or copyright
registration or application, the use of which is necessary or contemplated in
connection with the operation of OTS' business.
SECTION 2.13 Governmental Consent. No consent, approval, authorization or
order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of OTS is required in connection
with the execution and delivery of this Agreement or the carrying out of any
transactions contemplated hereby with the exception of the necessary corporate
filings with the State of Colorado relating to the amendment of the Articles
of Incorporation, the proposed exchange of shares, and a forward split of
shares
SECTION 2.14 Authority. OTS will, prior to the Closing, approve this
Agreement and the transactions contemplated hereby and will duly authorize the
execution and delivery hereof. OTS has full power, authority and legal right
to enter into this Agreement and to consummate the transactions contemplated
hereby, and all corporate action necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby has been duly and validly taken. The execution and
delivery of this Agreement, the consummation of the transaction contemplated
hereby and compliance by OTS with the provisions hereof will not (a)
conflict with or result in a breach of any provisions of, or constitute a
default (or an event which, with notice of lapse of time or both, would
constitute a default) under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of OTS
under, any of the terms, conditions or provisions of the Bylaws of OTS, or any
note, bond, mortgage, indenture, license, lease, agreement or any instrument
or obligation to which OTS is party or by which it is bound; or (b) violate
any order, written, rule or regulation applicable to OTS or any of its
properties or assets.
SECTION 2.15 Full Disclosure. None of the representations and warranties made
by OTS herein or in any exhibit, certificate or memorandum furnished or to be
furnished by OTS on its behalf pursuant hereto, contain or will contain any
untrue statement of material fact, or omit any material fact, the omission of
which would be misleading.
ARTICLE III
COVENANTS OF OTS
SECTION 3.1 Conduct Prior to the Closing. Between the date hereof and the
Closing:
(a) OTS will not enter into any agreement, contract, or commitment,
whether written or oral, or engage in any transaction, without the consent
of Thin Film;
(b) OTS will not declare any dividends or distributions with respect to
its capital stock or amend its Articles of Incorporation or Bylaws,
without the prior consent of Thin Film;
(c) OTS will not authorize, issue, sell, purchase or redeem any shares of
its capital stock without the prior written consent of Thin Film;
(d) OTS will comply with all requirements which federal or state law may
impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish written
information to Thin Film in connection with any such requirements imposed
upon the parties hereto in connection therewith;
(e) OTS will not incur any indebtedness for money borrowed, or issue or
sell any debt securities, incur or suffer to be incurred any liability or
obligation of any nature whatsoever, or cause or permit any lien,
encumbrance or security interest to be created or arise on or in any of
its properties or assets, acquire or dispose of fixed assets, change
employment terms, enter into any material or long-term contract, guarantee
obligations of any third party, settle or discharge any balance sheet
receivable for less than its stated amount or enter into any other
transaction other than the regular course of business, except to comply
with the terms of this Agreement, without the prior written consent of
Thin Film;
(f) OTS shall grant to Thin Film and its counsel, accountants and other
representatives full access during normal business hours during the period
prior to the Closing to all its respective properties, books, contracts,
commitments and record and, during such periods, furnish promptly to Thin
Film and such representatives all information relating to OTS as Thin Film
may reasonably request, and shall extend to Thin Film the opportunity to
meet with OTS's accountants and attorneys to discuss the financial
condition of OTS; and
(g) Except for the transactions contemplated by this Agreement, OTS will
conduct its business in the normal course, and shall not sell, pledge or
assign its assets without the prior written consent of Thin Film.
SECTION 3.2 Affirmative Covenants. Prior to Closing, OTS will do the
following:
(a) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all the conditions
contained in this Agreement;
(b) Promptly notify Thin Film in writing of any material adverse change
in the financial condition, business, operations or key personnel of OTS,
any threatened material litigation or investigation, any breach of its
representations or warranties contained herein, and any material contract,
agreement, license or other agreement which, if in effect on the date of
this Agreement, should have been included in this Agreement or in an
exhibit annexed hereto and made a part hereof;
(c) Reserve, and promptly after the Closing, issue and deliver to Thin
Film or its designees the number of shares of OTS common stock required
hereunder;
(d) Take the necessary corporate action to amend its Articles of
Incorporation to change its name to Thin Film Battery Inc. or any other
name deemed suitable and approved or ratified by the shareholders.
(e) Take all other necessary corporate actions to accomplish those items
set forth in Section 1.4 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THIN FILM AND SHAREHOLDERS
Thin Film Shareholders hereby represent, warrant and agree that:
SECTION 4.1 Organization of Thin Film. Thin Film is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada and is duly qualified and in good standing in every jurisdiction in
which such qualification is necessary. There are no corporations or other
entities with respect to which (i) Thin Film owns any of the outstanding stock
or other interest, or (ii) to which Thin Film may be deemed to be in control
because of factors or relationships other than the percentage of outstanding
stock or other interest owned in such entity, except as otherwise set forth in
Thin Film's financial statements. Thin Film has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby.
SECTION 4.2 Charter Documents. Complete and correct copies of the Articles or
Incorporation and Bylaws of Thin Film and all amendments thereto, have been or
will be delivered to OTS prior to the Closing.
SECTION 4.3 Financial Statements/Assets and Liabilities. Thin Film's
financial statements are true and complete in all material respects, having
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis for the periods covered by such statements, and
fairly present the financial condition of Thin Film and results of its
operations for the periods covered thereby. Thin Film has good and marketable
title to all of its assets and property to be delivered to OTS hereunder (by
way of tendering all of its outstanding shares of common stock to OTS), free
and clear of any and all liens, claims and encumbrances.
SECTION 4.4 Tax Returns and Payments. All of Thin Film's tax returns
(federal, state, city, county or foreign) which are required by law to be
filed on or before the date of this Agreement, have been duly filed or
extended with the appropriate governmental authority. Thin Film has paid all
taxes to be due on said returns, any assessments made against Thin Film and
all other taxes, fees and similar charges imposed on Thin Film by any
governmental authority (other than those, the amount of validity of which is
being contested in good faith by appropriate proceedings). No tax liens have
been filed and no claims are being assessed with respect to any such taxes,
fees or other similar charges.
SECTION 4.5 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications, waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by Thin
Film or the consummation by it of the transactions contemplated hereby.
SECTION 4.6 Compliance with Law and Governmental Regulations. Thin Film is in
compliance with all applicable statutes, regulations, decrees, orders,
restrictions, guidelines and standards affecting its properties and operations
imposed by the United States of America or any sate to which Thin Film is
subject.
SECTION 4.7 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which Thin Film is a party or which may
result in any material change in the business or condition, financial or
otherwise, of Thin Film or in any of its properties or assets, or which might
result in any liability on the part of Thin Film, or which questions the
validity of this Agreement or of any action taken or to be taken pursuant to
or in connection with the provisions of this Agreement, and to the best
knowledge of Thin Film, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 4.8 Trade Names and Rights. Thin Film has no knowledge of any facts
and nothing has come to its attention that would lead it to believe that it
has infringed or misappropriated or is infringing upon any trademark,
copyright, patent or other similar right of any person. No claim relating
thereto is pending or to the knowledge of Thin Film is threatened.
SECTION 4.9 Governmental Consent. No consent, approval, authorization or
order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of Thin Film is required in
connection with the execution and delivery of this Agreement or the carrying
out of any transactions contemplated hereby.
SECTION 4.10 Authority. Thin Film and its Shareholders representing no less
than one hundred percent (100%) of the issued and outstanding shares of Thin
Film capital stock of record, have approved this Agreement and duly authorized
the execution and delivery hereof. Thin Film has full power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and compliance by thin Film with the provisions hereof
will not (a) conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets
of Thin Film under, any of the terms, conditions or provisions of the Articles
of Incorporation or Bylaws of Thin Film, or any note, bond, mortgage,
indenture, license, agreement or any instrument or obligation to which Thin
Film is party or by which it is bound; or (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Thin Film or any
of its properties or assets.
SECTION 4.11 Ownership of Shares. Shareholders collectively and each
Shareholder individually represents to OTS that they are the owners of 100% of
the Thin Film capital stock currently issued and outstanding and which stock
is to be transferred by Shareholders to OTS under this Agreement, an that they
have full power and authority to transfer such shares of Thin Film capital
stock to OTS hereunder, and that such shares are free and clear of any liens,
charges, mortgages, pledges or encumbrances and that such shares are not
subject to any claims as to the ownership thereof, or any rights, powers or
interest therein, by any third party.
SECTION 4.12 Investment Purpose. Shareholders collectively and each
Shareholder individually represents that they, or their designees, are
acquiring the shares of OTS common stock to be issued hereunder for investment
purposes only. Thin Film, Shareholders and each Shareholder individually
further represents and acknowledges that the OTS shares issued hereunder are
"restricted securities" and may not be sold, trades or otherwise transferred
without registration under the 1933 Act or exemption therefrom.
SECTION 4.13 Full Disclosure. None of the representation and warranties made
by Thin Film herein contains or will contain any untrue statement of material
fact, or omit any material fact, the omission of which would be misleading.
ARTICLE V
COVENANTS OF THIN FILM
SECTION 5.1 Conduct Prior to the Closing. Between the date hereof and the
Closing:
(a) Expect within the regular course of business, Thin Film will not
entered into any material agreement, contract or commitment, whether
written or oral, or engage in any transaction, without the consent of OTS;
(b) Thin Film will not declare any dividends or distributions with
respect to its capital stock or amend its Articles of Incorporation or
Bylaws, without the prior consent of OTS;
(c) Except within the regular course of business, Thin Film will not
incur any indebtedness for money borrowed or issue to sell any debt
securities, or incur or suffer to be incurred any liability or obligation
of any nature whatsoever, or cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of its properties or
assets, without the consent of OTS;
(d) Thin Film will comply with all requirements which federal or state
law may impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish
information to OTS in connection with any such requirements imposed upon
the parties hereto in connection therewith; and
(e) Thin Film shall grant OTS and its counsel, accountants and other
representatives, full access during normal business hours during the
period prior to the Closing to all its respective properties, books,
contracts, commitments and records and, during such period, furnish
promptly to OTS and such representatives all information relating to Thin
Film as OTS may reasonably request, and shall extend to OTS the
opportunity to meet with Thin Film's accountants and attorneys to discuss
the financial condition of Thin Film.
SECTION 5.2 Affirmative Covenants. Prior to Closing, Thin Film will do the
following:
(a) Obtain the approval of its Board of Directors and Shareholders to
proceed with this Agreement;
(b) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all the conditions
contained in this Agreement; and
(c) Promptly notify OTS in writing of any materially adverse change in
the financial condition, business, operations or key personnel of Thin
Film, any breach of its representations or warranties contained herein,
and any material contract, agreement, license or other agreement which, if
in effect on the date of this Agreement, should have been included in this
Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions contemplated in this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense or as otherwise agreed to herein.
SECTION 6.2 Brokers and Finders. Each of the parties hereto represents, as to
itself, that no agent, broker, investment banker or other firm or person is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement to be paid by a party hereto.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agree to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective all transactions contemplated by this
Agreement. In the event at any time after the Closing, any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers and/or directors of OTS or Thin Film, as the case may be, shall take
all such necessary action.
SECTION 6.4 Indemnification.
(a) Thin Film and Shareholders agree to defend and hold OTS harmless
against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees, that OTS shall
incur or suffer, which arise out of, result from or relate to any material
breach of, or failure by Thin Film to perform any of its representations,
warranties, covenants and agreements in this Agreement other instrument,
warranties, covenants and agreements in this Agreement or other instrument
furnished or to be furnished by Thin Film and Shareholders under this
Agreement, or failure by Shareholders to perform any of their
representations, warranties and covenants in this Agreement.
(b) OTS agrees to defend and hold Thin Film and Shareholders harmless
against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, and reasonable attorney fees, that Thin
Film and Shareholders shall incur or suffer, which arise out of, result
form or relate to any material breach of, or failure by OTS to perform any
of its representations, warranties, covenants and agreements in this
Agreement or other instrument furnished or to be furnished by OTS under
this Agreement.
SECTION 6.5 Confidentiality. All parties hereto agree to keep confidential
this Agreement and all information and documents relating to this Agreement
until such time as the Agreement and the transactions contemplated hereunder
are made public by means of an appropriate press release or by any other means
reasonably assured to make such information publicly available.
SECTION 6.6 Registration. In the event OTS, to be known as Thin Film, makes a
registered offering of securities, it agrees to also register for sale shares
owned by the present directors (piggyback rights) if they so elect and for as
many shares as they elect. This provision is intended to confer third party
beneficiary rights upon the present directors. OTS, to be known as Thin Film,
shall notify the present director of any proposed registered offering and
obtain their election as to whether or not and how many of their shares are to
be registered for sale.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction or other
order by any federal or state court which prevents the consummation of this
Agreement or any of the transactions contemplated by this Agreement shall have
been issued and remain in effect.
SECTION 7.2 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been cancelled pursuant to
Article X hereof.
SECTION 7.3 Required Approvals. OTS and Thin Film shall have received all
such approvals, consents, authorizations or modifications as may be required
to permit the performance by OTS and Thin Film of the respective obligations
under this Agreement, and the consummation of the transactions herein
contemplated, whether from governmental authorities or other persons, and OTS
and Thin Film shall each have received any and all permits and approvals from
any regulatory authority having jurisdiction required for the lawful
consummation of this Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been obtained any and all
permits, approvals and consents of the Securities or "Blue-Sky" Commissions or
any jurisdictions, and of any other governmental body or agency, which counsel
for OTS may reasonably deem necessary or appropriate so that consummation of
the transactions contemplated by this Agreement may be in compliance with all
applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF OTS
All obligations of OTS under this Agreement are subject to the fulfillment
and satisfaction by Thin Film and Shareholders prior to or at any time of the
Closing, of each of the following conditions, any one or more of which may be
waived by OTS.
SECTION 8.1 Representations and Warranties at the Closing. All
representations and warranties of Thin Film and Shareholders contained in this
Agreement will be true and correct at and as of the time of the Closing, and
Thin Film and Shareholders shall have delivered to OTS certificates, dated
the date of the Closing to such effect and in the form and substance
satisfactory to OTS, and signed, in the case of Thin Film, by its present and
secretary, and by each Shareholder.
SECTION 8.2 Performance. The obligations of Thin Film and Shareholders to be
performed on or before the Closing pursuant to the terms of this Agreement
shall have been duly performed at such time, and Thin Film and Shareholders
shall have delivered to OTS a certificate, dated the date of the Closing, to
such effect and in form and substance satisfactory to OTS.
SECTION 8.3 Authority. All action required to be taken by, or on the part of
Thin Film and Shareholders to authorize the execution, delivery and
performance of this Agreement by Thin Film and the consummation of the
transactions contemplated hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change in the business, condition
(financial or otherwise), assets or liabilities of Thin Film or any event or
condition of any character adversely affecting Thin Film, and it shall have
delivered to OTS certificates, dated the date of the Closing, to such effect
and in form and substance satisfactory to OTS and signed, in the case of Thin
Film, by its present and secretary.
SECTION 8.5 Acceptance by Thin Film Shareholders. The holders of record as of
the Closing of an aggregate of not less than one hundred percent (100%) of the
issued and outstanding shares of capital stock of Thin Film have agreed to
exchange their shares for the OTS Shares specified herein.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THIN FILM AND SHAREHOLDERS
All obligations of Thin Film and Shareholders under this Agreement are subject
to the fulfillment and satisfaction by OTS prior to or at the time of Closing,
of each of the following conditions, any one or more of which may be waived by
Thin Film and Shareholders.
SECTION 9.1 Representations and Warranties True at the Closing. All
representations and warranties of OTS contained in this Agreement will be true
and correct at and as of the time of the Closing, and OTS shall have delivered
to Thin Film a certificate, dated the date of the Closing, to such effect and
in the form and substance satisfactory to Thin Film, and signed, in the case
of OTS, by its president and secretary.
SECTION 9.2 Performance. Each of the obligations of OTS to be performed on or
before the Closing pursuant to the terms of this Agreement shall have been
duly performed at the time of the Closing, and OTS shall have delivered to
Thin Film a certificate, dated the date of the Closing, to such effect and in
form and substance satisfactory to Thin Film, and signed, in the case of OTS,
by its president and secretary.
SECTION 9.3 Authority. All action required to be taken by, or on the part of
OTS, to authorize the execution, delivery and performance of this Agreement by
OTS, and the consummation of the transactions contemplated hereby shall be
duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change n the business, condition
(financial or otherwise), assets or liabilities of OTS or any event or
condition of any character adversely affecting OTS and it shall have
delivered to Thin Film certificates, dated the date of the Closing, to such
effect and in form and substance satisfactory to Thin Film and signed, in the
case of OTS, by its president and secretary.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or elsewhere to the
contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time prior to the
Closing;
(b) By the board of directors of OTS at any time prior to the Closing if:
(i) a condition to performance by OS under this Agreement or a
covenant of Thin Film or Shareholders contained herein shall not be
fulfilled on or before the time of the Closing or at such other time
and date specified for the fulfillment for such covenant or
condition; or
(ii) a material default or breach of this Agreement shall be made by
Thin Film or Shareholders; or
(iii) if the Closing shall not have taken place on or prior to April
10, 2000.
(c) By the board or directors of Thin Film or by Shareholders at any time
prior to the Closing if:
(i) a condition to Thin Film's or Shareholders' performance under
this Agreement or a covenant of OTS contained in this Agreement shall
not be fulfilled on or before the Closing or at such other time and
date specified for the fulfillment of such covenant or conditions; or
(ii) a material default or breach of this Agreement shall be made by
OTS; or
(iii) if the Closing shall not have taken place on or prior to April
10, 2000.
SECTION 10.2 Effect of Termination. If this Agreement is terminated, this
Agreement, except as to Section 11.1 and Section 11.2 shall no longer be of
any force or effect and there shall be no liability on the part of any party
or its respective directors, officers or stockholders; provided, however, that
in the case of a Termination without cause by a party or a termination
pursuant to Sections 10.1(b)(i) or 10.1(c)(i) hereof because of a prior
material default under or a material breach of this Agreement by another
party, the damages which the aggrieved party or parties may recover from the
defaulting party or parties shall in no event exceed the amount of
out-of-pocket expenses incurred by such aggravated party or parties in
connection with this Agreement, and no party to this Agreement shall be
entitled to any injunctive relief.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Costs and Expenses. All costs and expenses incurred in
connection with this Agreement will be paid by the party incurring such
expenses. In the event of any termination of this Agreement pursuant to
Section 10.1, subject to the provisions of Section 10.2, OTS, Thin Film and
Shareholders will each bear their own respective expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior to the Closing
date:
(a) OTS may (i) extend the time for the performance of any of the
obligations or other acts of Thin Film and Shareholders, (ii) waive any
inaccuracies in the representations and warranties of Thin Film or
Shareholders contained herein or in any document delivered pursuant hereto
by Thin Film and Shareholders, and (iii) waive compliance with any of the
agreements or conditions contained herein to be performed by Thin Film and
Shareholders. Any agreement on the part of OTS to any such extension or
waiver shall be valid only if it sets forth in an instrument, in writing,
signed on behalf of OTS.
(b) Thin Film and Shareholders may (i) extend the time for the
performance of any of the obligations or other acts of OTS, (ii) waive any
inaccuracies in the representations and warranties of OTS contained herein
or in any document delivered pursuant hereto by OTS, and (iii) waive
compliance with any of the agreements or conditions herein to be performed
by OTS. Any agreement on the part of Thin Film and Shareholders to any
such extension or waiver shall be valid only if set forth in an
instrument, in writing, signed on behalf of Thin Film and Shareholders.
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this
Agreement shall be in writing and given by Certified or Registered Mail or by
facsimile, addressed as follows:
OTS Holdings, Inc.
c/o Xxxx Xxxxxxxxxxx
0000 Xxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Thin Film Battery, Inc.
c/o Xxxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Additional notices are to be given as to each party, at such other address
as should be designated in writing complying with the terms of this Section
11.3. All such notices shall be effective when sent, addressed as aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and the respective successors and
assigns. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by
reason of this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or more
counter parts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart
of this Agreement shall be deemed to be an original and shall have the full
force and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm that none of
the provisions herein are dependent upon the validity of any other provision,
and if any part of this Agreement is deemed to be unenforceable, the remainder
of the Agreement shall remain in full force and effect.
SECTION 11.7 Headings. The Article and Section headings are provided herein
for convenience of reference only and do not constitute a part of this
Agreement.
SECTION 11. 8 Governing Law. This Agreement shall be governed by the laws of
the State of Utah. Any action to enforce the provisions of this Agreement
shall be brought in a court of competent jurisdiction in the State of Utah and
in no other place.
SECTION 11.9 Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in
any instrument, certificate, opinion, or other writing providing for in it,
shall survive the Closing and the delivery of the OTS Shares issued hereunder
at the Closing, for a period of one year from the Closing regardless of any
parties hereto.
SECTION 11.10 Assignability. This Agreement shall not be assignable by any of
the parties hereto without the prior written consent of the other parties.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first above
written.
OTS HOLDINGS, INC. Attest:
/s/ Xxxx X. Xxxxxxxxxx /s/ Xxx Xxxxxxxxx
------------------------------- ----------------------------
By: Xxxx X. Xxxxxxxxxx Xxx Xxxxxxxxx
Its: President Secretary
THIN FILM BATTERY, INC. Attest:
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
------------------------------- ----------------------------
By: Xxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Its: President Secretary
"Shareholders" Number of Shares of OTS Holdings, Inc.
Common Stock to be Issued
Price Equity, Ltd. 5,000,000
Omni International Ltd. 7,000,000
Smart Concept Technology 3,000,000
Xxxx X. Xxxxx 333,334
Xxxxxx X. Xxxxxxxx 3,334
Won X. Xxxx 3,334
CLOSING CERTIFICATE
OF
OTS HOLDING, INC.
The undersigned hereby certify that they are the President and Secretary,
respectively, of OTS Holding, Inc., a Colorado corporation ("OTS"), and
further certify as follows:
1. That the representations and warranties of OTS contained in the
Acquisition Agreement and Plan or Reorganization (the "Agreement"), by and
between OTS and Thin Film Battery Inc., a Nevada corporation, and the
shareholders of Thin Film are true and correct at and as of the date hereof.
2. The obligations and covenants of OTS to be performed and observed on
or before the Closing as defined in the Agreement, have been duly performed
and observed.
3. Except as otherwise disclosed in the Agreement, there has not
occurred since the date thereof, any adverse change in the business condition
(financial or otherwise), assets or liabilities of OTS or any event or
condition of any character adversely affecting OTS.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this 7th day of April, 2000.
OTS HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxxx, President
By: /s/ Xxx Xxxxxxxxx, Secretary/Treasurer
CLOSING CERTIFICATE
OF SHAREHOLDERS
OF
THIN FILM BATTERY INC.
Xxxxxx X. Xxxxxxxx, being the only Shareholder of Thin Film Battery Inc.,
a Nevada corporation ("Thin Film"), represents that he has performed all of
the obligations to be performed by him on or before the Closing under the
Acquisition Agreement and Plan of Reorganization by and among OTS Holding,
Inc., a Colorado corporation, Thin Film and Shareholders.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this the 7th day of April, 2000.
/s/ Xxxxxx X. Xxxxxxxx, Shareholder
