STOCK PURCHASE AGREEMENT
by and between
INTERACTIVE TECHNOLOGIES CORPORATION
a Wyoming corporation
and
AIRTECH INTERNATIONAL CORPORATION SHAREHOLDERS
and
AIRTECH INTERNATIONAL CORPORATION,
a Texas corporation
* * * * *
TABLE OF CONTENTS
Page
Article I Exchange of Shares 1
Article II Purchaser's Representations and Warranties 3
Article III Representations and Warranties of Airtech
and the Selling Shareholders 5
Article IV Airtech's covenants 8
Article V Purchaser's Covenants 9
Article VI Purchaser's Conditions Precedent 11
Article VII Conditions Precedent of Airtech Selling Shareholders 11
Article VIII Miscellaneous 12
Exhibit 1.03 17
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered into effective the 8th day of May, 1997, by
and among Interactive Technologies Corporation, a Wyoming corporation
("Purchaser"), Airtech International Corporation, a Texas corporation
("Airtech") and the shareholders of the outstanding common stock of Airtech (the
"Selling Shareholders").
W I T N E S S E T H :
WHEREAS, Purchaser is a publicly held corporation that desires to
acquire a business which has growth potential; and
WHEREAS, Airtech is a business engaged in the business of manufacturing
and marketing of portable and commercial air purification equipment that appears
to have growth potential; and
WHEREAS, Purchaser desires to acquire at least eight-one percent (81%)
of the issued and outstanding shares of common stock, $0.0001 par value, of
Airtech (the "Airtech Common Stock") owned by the Selling Shareholders in
exchange for Purchaser's common stock, par value $0.01 ("ITC Common Stock"),
Purchaser's preferred stock, par value $1.00 ("ITC Preferred Stock") and
Purchaser's debentures (the "ITC Debentures") in a tax-free transaction pursuant
to the provisions of Section 368(a)(1)(B) of the Internal Revenue Code as
amended;
NOW, THEREFORE, for and in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions set forth herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF SHARES
1.01 Purchase of Stock. Subject to and upon the terms and conditions
contained herein, at the Closing (as hereinafter defined), the Selling
Shareholders shall assign, transfer, convey and deliver to the Escrow Agent for
the Purchaser the Airtech Common Stock, pursuant to the terms of the Escrow
Agreement, the form of which is attached hereto as Exhibit "A" (the "Escrow
Agreement") and incorporated by reference, free and clear of any liens,
encumbrances and charges whatsoever, and Purchaser shall accept and acquire from
the Selling Shareholders the Airtech Common Stock owned by them. Purchaser shall
accept and acquire from the Selling Shareholders, as provided herein, in the
aggregate a minimum of eighty-one percent (81%) and up to a maximum of one
hundred percent (100%) of Airtech Common Stock.
1.02 Delivery of Consideration and Registration of ITC Common Stock. In
consideration of the shares of Airtech Common Stock of the Selling Shareholders,
Purchaser at the Closing shall deliver to the Escrow Agent for the Selling
Shareholders one or more certificates representing shares of ITC Common Stock,
one or more certificates representing shares of ITC Preferred Stock and one or
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more ITC Debentures free and clear of any liens, encumbrances or charges
whatsoever, to which they are entitled to receive in exchange for certificates
representing their shares of Airtech Common Stock, as set forth opposite such
shareholders' name on Exhibit 1.03.
1.02.1 ITC Common Stock. ITC shall issue in exchange for the Airtech
Common Stock, 8,000,000 shares of registered ITC Common Stock. Each Airtech
shareholder will receive their pro-rata percent of the of the ITC Common Stock
(number of Shareholder's shares of Common Stock in Airtech / total issued and
outstanding shares of Airtech Common Stock). Prior to the Closing, as defined
herein and in the Escrow Agreement, ITC shall file a registration statement with
the Securities and Exchange Commission to register the ITC Common Stock set
forth on Exhibit 1.03, under the Securities Act of 1933 and after the
registration statement is declared effective file such post-effective amendments
and such other documents as may be required to enable the Selling Shareholders
to sell any such ITC Common Stock acquired by them pursuant to the provisions of
this Stock Purchase Agreement. It is mutually agreed that ITC and Airtech shall
work together in the preparation of the information required in the Registration
Form and that Airtech shall be responsible for the cost associated with
registering the shares for the Airtech Shareholders.
1.02.2 ITC Preferred Stock. ITC shall, in addition, issue in exchange
for the Airtech Common Stock 6,000,000 shares of Convertible Preferred Stock,
par value $1.00. The ITC Preferred Stock shall be Convertable into one share of
ITC Common Stock that will be registered before conversion after 24 months. ITC
at its option my elect to convert these shares of Preferred Stock at any time
during the 24 month period. Each Airtech shareholder will receive their pro-rata
percent of the ITC Preferred Stock (number of Shareholder's shares of Common
Stock in Airtech / total issued and outstanding shares of Airtech Common Stock).
The ITC Preferred Stock shall be restricted under the Securities and Exchange
Acts of 1933, as amended, and shall bear restricted legends printed on each ITC
Preferred Stock certificate. In the event ITC shall at any time prior to the
conversion of this preferred stock, subdivide or combine in a greater or lesser
number the shares of outstanding number of ITC Common Stock, recapitalize,
consolidate with or merge into any other corporation, sell or convey all or
substantially all of its property, pay to holders of ITC Common Stock a dividend
in common stock, sell common stock at less than the exercise price or take any
such other dilutive action then the holder of the ITC Preferred Stock shall be
entitled to receive the same kind and the same proportionate shares of ITC
Common Stock or property which the holder would be entitled to receive had such
ITC Preferred Stock been converted immediately prior to the date of such
dilutive action of ITC.
1.02.3 ITC Debentures. ITC shall issue in exchange for the Airtech
Common Stock $6,000,000 principal amount Convertible 10% Debentures. These
Debentures will be secured by the shares of Airtech Common Stock purchased by
ITC pursuant to the Article I, and shall be convertible after 24 months into
registered shares of ITC Common Stock at a rate of $0.70 per share. ITC at its
option, may elect to convert the ITC Debentures at any time during the 24 month
period. Each Airtech shareholder will receive their pro-rata percent of the ITC
Debentures (number of Shareholder's shares of Common Stock in Airtech / total
issued and outstanding shares of Airtech Common Stock). The interest accruing on
these Debentures, at ITC's option, can be paid in cash or in additional
registered shares of Common Stock in ITC. If the interest is paid in shares of
Common Stock the convertible rate shall be $0.70. The ITC Debentures Shall be
restricted under the Securities and Exchange Acts of 1933, as amended, and shall
bear restricted legends printed on each ITC Debenture certificate.
In the event ITC shall at any time prior to the conversion or payment
of this ITC Debenture, subdivide or combine in a greater or lesser number the
shares of outstanding number of ITC Common Stock, recapitalize, consolidate with
or merge into any other corporation, sell or convey all or substantially all of
its property, pay to holders of ITC Common Stock a dividend in common stock,
sell common stock at less than the exercise price or take any such other
dilutive action then the holder of the ITC Debenture shall be entitled to
receive the same kind and the same proportionate shares of ITC Common Stock or
property which the holder would be entitled to receive had such ITC Debenture
been converted immediately prior to the date of such dilutive action of ITC.
1.03 Closing. The closing of the transaction contemplated hereby (the
"Closing") shall occur on June 30, 1997 or such date after required compliance
with state and federal laws, notification of shareholders, required votes by
shareholders and the registration statement has been filed by ITC with the
Securities and Exchange Commission.
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1.04 Instruments of Transfer; Further Assurances. In order
to consummate the transaction contemplated hereby, the following documents
and instruments shall be delivered:
(a) Documents from Selling Shareholders. Selling Shareholders
shall deliver to Purchaser's Escrow Agent at the Closing one or more
stock certificates representing in the aggregate the number of shares
of Airtech Common Stock owned by them plus duly executed stock powers
or other instrument of transfer for each such stock certificate.
(b) Documents from Purchaser. Purchaser's Escrow Agent shall
deliver to Selling Shareholders at the closing one or more stock
certificates representing in the aggregate the number of shares of ITC
Preferred Stock, the Dollar amount of Debentures to which such Selling
Shareholders are entitled, to be registered in such names and in such
denominations as shall be requested by Selling Shareholders not less
than three (3) business days prior to the Closing Date. The Purchaser's
Escrow Agent, after the effective date of the registration is received
from the Securities and Exchange Commission shall deliver to the
Selling Shareholders the aggregate number of shares of ITC Common Stock
to which such Selling Shareholders are entitled, registered in such
names and in such denominations as shall be requested by Selling
Shareholders.
(C) Further Documents. At the Closing, and at all times
thereafter as may be necessary (I) Selling Shareholders shall execute
and deliver to Purchaser such other instruments of transfer as shall be
reasonably necessary or appropriate to vest in Purchaser good and
indefeasible title to the shares of Airtech Common Stock owned by them
and to comply with the purposes and intent of this Agreement, and (ii)
Purchaser shall execute and deliver to Selling Shareholders such other
instruments as shall be reasonably necessary or appropriate to comply
with the purposes and intent of this Agreement.
ARTICLE II
PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants that the following are true and
correct as of this date and will be true and correct through the Closing Date as
if made on that date:
2.01 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, with all requisite power and authority to carry on the
business in which it is engaged, to own the properties it owns and to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby.
2.02 Authorization and Validity. The execution, delivery and
performance of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby have been or will be prior to Closing duly
authorized by Purchaser. This Agreement constitutes or will constitute legal,
valid and binding obligations of Purchaser, enforceable against Purchaser in
accordance with its terms, and neither the execution or delivery of this
Agreement nor the consummation by the Purchaser of the transactions contemplated
hereby (I) violates any statute or law or any rule, regulation or order of any
court or any governmental authority, or (ii) violates or conflicts with, or
constitutes a default under or will constitute a default under, any contract,
commitment, agreement, understanding, arrangement, or restriction of any kind to
which the Purchaser is a party or by which the Purchaser is bound.
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2.03 No Violation. Neither the execution and performance of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
conflict with, or result in a violation or breach of the terms, conditions and
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws of Purchaser or any agreement, indenture or other instrument under which
Purchaser is bound or to which the assets of Purchaser are subject, or result in
the creation or imposition of any lien, charge or encumbrance upon any of such
assets, or (b) violate or conflict with any judgment, decree, order, statute,
rule or regulation of any court or any public, governmental or regulatory agency
or body having jurisdiction over Purchaser or the properties or assets of
Purchaser. Purchaser has complied in all material respects with all applicable
laws, regulations and licensing requirements, and has filed with the proper
authorities all necessary statements and reports. Purchaser possesses all
necessary licenses, franchises, permits and governmental authorizations to
conduct its business as now conducted.
2.04 Capitalization. As of the date hereof, Purchaser had an authorized
capitalization of 70,000,000 shares, consisting of 50,000,000 shares of Common
Stock, par value $0.01, of which 12,209,612 shares are issued and outstanding
and 20,000,000 shares of Preferred Stock, par value $1.00, no shares are issued
and outstanding. Each outstanding share of capital stock has been legally and
validly issued and is fully paid and nonassessable.
2.05 Corporate Records. The copies of the Articles of Incorporation and
all amendments thereto and the Bylaws of Purchaser that have been delivered or
made available to Airtech are true, correct and complete copies thereof. The
minute book of Purchaser, copies of which have been delivered or made available
to Airtech, contain minutes of all meetings of and consents to all actions taken
without meetings by the Board of Directors and the shareholders of Purchaser
since the formation of Purchaser, all of which are accurate in all material
respects.
2.06 Financial Statements. Purchaser has furnished Airtech and the
Selling Shareholders a copy of Purchaser's audited financial statements as of
May 31, 1996 and unaudited February 28, 1997 financial statements, including the
notes thereto. Since the date of such balance sheets, statements of operations
and cash flows, except as set forth on Schedule 2.06, Purchaser has incurred no
unpaid obligations, liabilities or commitments or acquired assets other than in
the ordinary course of business.
2.07 Absence of Certain Changes. Except as set forth in Exhibit 2.07
hereto, since February 28, 1997, Purchaser has not: (a) suffered any material
adverse change in its financial condition, assets, liabilities or business; (b)
contracted for or paid any capital expenditures in excess of $10,000.00; (C)
incurred any indebtedness for borrowed money, issued or sold any debt securities
or discharged any liabilities or obligations; (d) mortgaged, pledged or
subjected to any lien, lease, security interest or other charge or encumbrance
any of their properties or assets; (e) paid any material amount on any
indebtedness prior to the due date, forgiven or canceled any material debts or
claims or released or waived any material rights of claims; (f) suffered any
damage or destruction to or loss of any assets (whether or not covered by
insurance) that materially and adversely affects its business; (g) acquired or
disposed of any material assets or incurred any material liabilities or
obligations; (h) made any payments to or loaned any money to its affiliates or
associates; (I) formed or acquired or disposed of any interest in any
corporation, partnership, joint venture or other entity; (j) entered into any
material employment, compensation, consulting or collective bargaining agreement
with any person or group, or modified or amended in any material respect the
terms of any such existing agreement; or (k) entered into any other commitment
or transaction or experienced any other event that is material to this Agreement
or to the transactions contemplated hereby, or that has affected, or may
adversely affect Airtech's business, operations, assets, liabilities or
financial condition.
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2.08 Title; Leased Assets. Except as described in Exhibit 2.08 hereto,
Purchaser owns its assets, and its real and personal property leaseholds, free
and clear of all liens, claims and encumbrances, except for (I) liens for
non-delinquent ad valorem taxes or non-delinquent statutory liens arising other
than by reason of its default, and (ii) such liens, minor imperfections of title
or easements on real property, leasehold estates or personalty as do not in any
material respect detract from the value thereof and do not interfere with the
present use of the properties subject thereof. Such assets and leaseholds are
the only ones necessary for the conduct of Purchaser's business as now being
conducted.
2.09 Insurance. All of the insurable properties of Purchaser are
insured for its benefit under valid and enforceable policies, issued by insurers
of recognized responsibility in amounts and against such risks and losses as is
customary in Purchaser's industry.
2.10 Disclosure. No representation or warranty by Purchaser in this
Agreement nor any statement or certificate furnished or to be furnished by it
pursuant hereto or in connection with the transactions contemplated hereby
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading or necessary in order to provide Airtech and the Selling
Shareholders with complete and accurate information.
2.11 Consents. Except as set forth in Exhibit 2.11, there is no
authorization, consent, approval, permit or license of, or filing with, any
governmental or public body or authority, any lender or lessor or any other
person or entity is required to authorize, or is required in connection with,
the execution, delivery and performance of this Agreement or the agreements
contemplated hereby on the part of Purchaser.
2.12 Compliance with Laws. There are no existing violations of any
applicable federal, state or local law or regulation that could materially
adversely affect the property or business of Purchaser and there are no known,
noticed or threatened violations of any zoning, building, fire, safety or wage
and hour laws or regulations.
2.13 Litigation. Except as described in Exhibit 2.13, Purchaser has not
had any legal action or administrative proceeding or investigation instituted
or, to the best of the knowledge of Purchaser, threatened against or affecting
any of the assets or business of Purchaser. Purchaser is not (a) subject to any
continuing court or administrative order, writ, injunction or decree applicable
specifically to Purchaser or to its business, assets, operations or employees,
or (b) in default with respect to any such order, writ, injunction or decree.
Purchaser knows of no basis for any such action, proceeding or investigation.
2.14 Disclosure. No representation or warranty by Purchaser in this
Agreement nor any statement or certificate furnished or to be furnished by it or
them pursuant hereto or in connection with the transactions contemplated hereby
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading or necessary in order to provide Purchaser with complete
and accurate information.
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2.15 Tax Returns. Purchaser has prepared and filed, or has caused to be
prepared and filed, with the appropriate United States, state and local
government agencies, and all political subdivisions thereof, all tax returns
required to be filed by, on behalf of or on account of the operations of
Purchaser and has paid or caused to be paid all assessments shown to be due and
claimed to be due on such tax returns.
2.16 Contracts. All contracts and agreements to which Purchaser is a
party are described in Exhibit 2.16. Such contracts and agreements have not been
amended and remain in full force and effect in accordance with their respective
terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AIRTECH
AND THE SELLING SHAREHOLDERS
Airtech and the Selling Shareholders, jointly and severally, represent
and warrant that the following are true and correct as of this date and will be
true and correct through the Closing Date as if made on that date:
3.01 Organization and Good Standing. Airtech is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation with all requisite power and authority to carry on the business in
which it is engaged and to own the properties it owns. Airtech is duly qualified
and licensed to do business and is in good standing in all jurisdictions where
the nature of its business makes such qualification necessary. Airtech does not
have any assets, employees or offices in any state other than the state of
Texas.
3.02 Authorization and Validity. The execution, delivery and
performance of this Agreement by Airtech and the consummation of the
transactions contemplated hereby have been or will be prior to Closing duly
authorized by Airtech. This Agreement constitutes or will constitute legal,
valid and binding obligations of Airtech, enforceable against Airtech in
accordance with its terms. This Agreement constitutes the valid and binding
agreement of the Selling Shareholders, enforceable in accordance with its terms,
and neither the execution or delivery of this Agreement nor the consummation by
the Selling Shareholders of the transactions contemplated hereby (I) violates
any statute or law or any rule, regulation or order of any court or any
governmental authority, or (ii) violates or conflicts with, or constitutes a
default under or will constitute a default under, any contract, commitment,
agreement, understanding, arrangement, or restriction of any kind to which the
Selling Shareholders are a party or by which the Selling Shareholders are bound.
3.03 Capitalization. As of the date hereof, Airtech had an authorized
capitalization of 100,000,000 shares, consisting of Ninety Million (90,000,000)
shares of common stock, $0.0001 par value, of which 15,743,569 shares are issued
and outstanding, One Million Seven Hundred Fifty Thousand (1,750,000) shares of
Series A Preferred Stock, $1.00 par value, no shares outstanding; Five Million
(5,000,000) shares of Series AA Preferred Stock, of which no shares are issued
and outstanding and 1,000 shares of Series C Preferred Stock, $1.00 par value,
1,000 shares outstanding. The record and beneficial shareholders of all issued
and outstanding Airtech Common Stock held by the Selling Shareholders are owned,
free and clear by each Selling Shareholder of all liens, claims, encumbrances,
equities and proxies. Each outstanding share of common capital stock has been
legally and validly issued and is fully paid and nonassessable. There are no
outstanding securities, obligations, rights, subscriptions, warrants, options or
other rights to purchase shares of common stock or preferred stock of Airtech.
6
3.04 Corporate Records. The copies of the Articles of Incorporation and
all amendments thereto and the Bylaws of Airtech that have been delivered or
made available to Purchaser are true, correct and complete copies thereof. The
minute book of Airtech, copies of which have been delivered or made available to
Purchaser, contain minutes of all meetings of and consents to all actions taken
without meetings by the Board of Directors and the shareholders of Airtech since
the formation of Airtech, all of which are accurate in all material respects.
3.05 Financial Statements. Airtech has furnished to Purchaser Airtech's
audited balance sheet and related statements of operations and cash flows for
the period ended February 29, 1996 and interim financial statements for the
periods thru January 31, 1997 (the "Airtech Financial Statements"). The Airtech
Financial Statements fairly present the financial condition and results of
operations of Airtech as of the dates and for the periods indicated and have
been prepared in conformity with generally accepted accounting principles.
3.06 Absence of Certain Changes. Except as set forth in Exhibit 3.06
hereto, since February 28, 1997, Airtech has not: (a) suffered any material
adverse change in its financial condition, assets, liabilities or business; (b)
contracted for or paid any capital expenditures in excess of $50,000.00; (C)
incurred any indebtedness for borrowed money, issued or sold any debt securities
or discharged any liabilities or obligations; (d) mortgaged, pledged or
subjected to any lien, lease, security interest or other charge or encumbrance
any of their properties or assets; (e) paid any material amount on any
indebtedness prior to the due date, forgiven or canceled any material debts or
claims or released or waived any material rights of claims; (f) suffered any
damage or destruction to or loss of any assets (whether or not covered by
insurance) that materially and adversely affects its business; (g) acquired or
disposed of any material assets or incurred any material liabilities or
obligations; (h) made any payments to or loaned any money to its affiliates or
associates; (I) formed or acquired or disposed of any interest in any
corporation, partnership, joint venture or other entity; (j) entered into any
material employment, compensation, consulting or collective bargaining agreement
with any person or group, or modified or amended in any material respect the
terms of any such existing agreement; or (k) entered into any other commitment
or transaction or experienced any other event that is material to this Agreement
or to the transactions contemplated hereby, or that has affected, or may
adversely affect Airtech's business, operations, assets, liabilities or
financial condition.
3.07 Title; Leased Assets. Except as described in Exhibit 3.07 hereto,
Airtech owns its assets, and its real and personal property leaseholds, free and
clear of all liens, claims and encumbrances, except for (I) liens for
non-delinquent ad valorem taxes or non-delinquent statutory liens arising other
than by reason of its default, and (ii) such liens, minor imperfections of title
or easements on real property, leasehold estates or personality as do not in any
material respect detract from the value thereof and do not interfere with the
present use of the properties subject thereof. Such assets and leaseholds are
the only ones necessary for the conduct of Airtech business as now being
conducted.
3.08 Insurance. All of the insurable properties of Airtech are insured
for its benefit under valid and enforceable policies, issued by insurers of
recognized responsibility in amounts and against such risks and losses as is
customary in Airtech's industry.
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3.09 No Violation. Neither the execution and performance of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
conflict with, or result in a violation or breach of the terms, conditions and
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws of Airtech or any agreement, indenture or other instrument under which
Airtech is bound or to which any of the assets of Airtech are subject, or result
in the creation or imposition of any lien, charge or encumbrance upon any of
such assets, or (b) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over Airtech or the properties or
assets of Airtech. Airtech has complied in all material respects with all
applicable laws, regulations and licensing requirements, and has filed with the
proper authorities all necessary statements and reports. Airtech possesses all
necessary licenses, franchises, permits and governmental authorizations to
conduct its business as now conducted.
3.10 Consents. Except as set forth in Exhibit 3.10, no authorization,
consent, approval, permit or license of, or filing with, any governmental or
public body or authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the execution,
delivery and performance of this Agreement or the agreements contemplated hereby
on the part of Airtech.
3.11 Compliance with Laws. There are no existing violations of any
applicable federal, state or local law or regulation that could materially
adversely affect the property or business of Airtech and there are no known,
noticed or threatened violations of any zoning, building, fire, safety or wage
and hour laws or regulations.
3.12 Litigation. Except as described in Exhibit 3.12, Airtech has not
had any legal action or administrative proceeding or investigation instituted
or, to the best of the knowledge of Airtech, threatened against or affecting any
of the assets or business of Airtech. Airtech is not (a) subject to any
continuing court or administrative order, writ, injunction or decree applicable
specifically to Airtech or to its business, assets, operations or employees, or
(b) in default with respect to any such order, writ, injunction or decree.
Airtech knows of no basis for any such action, proceeding or investigation.
3.13 Disclosure. No representation or warranty by Airtech or the
Selling Shareholders in this Agreement nor any statement or certificate
furnished or to be furnished by it or them pursuant hereto or in connection with
the transactions contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained therein not misleading or necessary
in order to provide Purchaser with complete and accurate information.
3.14 Tax Returns. Airtech has prepared and filed, or has caused to be
prepared and filed, with the appropriate United States, state and local
government agencies, and all political subdivisions thereof, all tax returns
required to be filed by, on behalf of or on account of, the operations of
Airtech and has paid or caused to be paid all assessments shown to be due and
claimed to be due on such tax returns.
3.15 Contracts. All contracts and agreements to which Airtech is a
party are described on Exhibit 3.15 and are in full force and effect in
accordance with their respective terms.
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ARTICLE IV
AIRTECH'S COVENANTS
Airtech agrees that on or prior to the Closing:
4.01 Business Operations. Airtech shall operate its business only in
the ordinary course and Airtech shall use its best efforts to preserve the
business of Airtech intact, to retain its present customers and suppliers so
that they will be available to Purchaser after the Closing and to cause the
consummation of the transactions contemplated by this Agreement in accordance
with its terms and conditions. Airtech shall not take any action that might
impair the business or assets of Airtech without the prior consent of Purchaser
or take or fail to take any action that would cause or permit the
representations made in Article III hereof to be inaccurate at the time of
Closing or preclude Airtech from making such representations and warranties at
the Closing.
4.02 Access. Airtech shall permit Purchaser and its authorized
representatives full access to, and make available for inspection, all of the
assets and business of Airtech, including Airtech's employees, customers and
suppliers, and Airtech shall furnish Purchaser all documents, records and
information with respect to the affairs of Airtech as Purchaser and its
representatives may reasonably request.
4.03 Material Change. Prior to the Closing, Airtech shall promptly
inform Purchaser in writing of any material adverse change in the condition of
the business of Airtech. Notwithstanding the disclosure to Purchaser of any such
material adverse change, Airtech shall not be relieved of any liability for, nor
shall the providing of such information by Airtech to Purchaser be deemed a
waiver by Purchaser of, the breach of any representations or warranty of Airtech
contained in this Agreement.
4.04 Approvals of Third Parties. As soon as practicable after the
execution of this Agreement, but in any event prior to the Closing Date, Airtech
will use its best efforts to secure all necessary approvals and consents of
third parties to the consummation of the transactions contemplated by this
Agreement.
4.05 Contracts. Except with Purchaser's prior written consent, Airtech
shall not waive any material right or cancel any material contract, debt or
claim nor with it assume or enter into any contract, lease, license obligation,
indebtedness, commitment purchase or sale involving more than $10,000.00, each.
4.06 Capital Assets; Payments of Liabilities. Except with Purchaser's
prior written consent, Airtech will not acquire or dispose of any capital asset
having an initial cost of $10,000.00 or more, nor will Airtech discharge or
satisfy any lien or encumbrance or pay or perform any obligation or liability
other than (I) liabilities and obligation reflected in the Airtech Financial
Statements, and (ii) current liabilities and obligations incurred in the usual
and ordinary course of business since February 28, 1997, and, in either such
case only as required by the express terms of the agreement or other instrument
pursuant to which the obligation or liability was incurred.
4.07 Mortgages, Liens. Except with Purchaser's prior written consent,
Airtech will not enter into or assume any mortgage, pledge, conditional sale or
other title retention agreement, permit any lien, encumbrance or claim of any
kind to attach to any of its assets, whether nor owned or hereafter acquired, or
guarantee or otherwise become contingently liable for any obligations of another
or make any capital contributions or investments in any corporation, business or
other person.
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4.08 Sales of Stock. Except as set forth on Schedule 4.08, Airtech will
not, without Purchaser's prior written consent, after the date hereof, issue any
shares of its common stock or preferred stock nor will it issue or enter into an
agreement to issue any securities, rights, subscriptions, warranties or options
to purchase shares of its common stock or preferred stock or which are
convertible into shares of its common stock or preferred stock in whole or in
part.
ARTICLE V
PURCHASER'S COVENANTS
Purchaser agrees that on or prior to the Closing:
5.01 Business Operations. Purchaser shall operate its business only in
the ordinary course and Purchaser shall use its best efforts to preserve the
business of Purchaser intact, to retain its present customers and suppliers so
that they will be available to Purchaser after the Closing and to cause the
consummation of the transactions contemplated by this Agreement in accordance
with its terms and conditions. Purchaser shall not take any action that might
impair the business or assets of Purchaser without the prior consent of Airtech
or take or fail to take any action that would cause or permit the
representations made in Article II hereof to be inaccurate at the time of
Closing or preclude Purchaser from making such representations and warranties at
the Closing.
5.02 Access. Purchaser shall permit Airtech and its authorized
representatives full access to, and make available for inspection, all of the
assets and business of Purchaser, and Purchaser shall furnish Airtech all
documents, records and information with respect to the affairs of Purchaser as
Airtech and its representatives may reasonably request.
5.03 Sales of Stock. Except with Airtech's prior written consent
Purchaser will not, after the date hereof, issue any shares of its common stock
nor will it issue or enter into an agreement to issue any securities, rights,
subscriptions, warranty or options to purchase shares of its common stock or
preferred stock or which are convertible into shares of its common stock or
preferred stock in whole or in part.
5.04 Material Change. Prior to the Closing, Purchaser shall promptly
inform Airtech in writing of any material adverse change in the condition of the
business of Purchaser. Notwithstanding the disclosure to Airtech of any such
material adverse change, Purchaser shall not be relieved of any liability for,
nor shall the providing of such information by Purchaser to Airtech be deemed a
waiver by Airtech of, the breach of any representation or warranty of Purchaser
contained in this Agreement.
5.05 Contracts. Except with Airtech's prior written consent, Purchaser
shall not waive any material right or cancel any material contract, debt or
claim nor with it assume or enter into any contract, lease, license obligation,
indebtedness, commitment purchase or sale involving more than $10,000.00, each.
5.06 Capital Assets; Payments of Liabilities. Except with Airtech's
prior written consent, Purchaser will not acquire or dispose of any capital
asset having an initial cost of $10,000.00 or more, nor will Purchaser discharge
or satisfy any lien or encumbrance or pay or perform any obligation or liability
other than (I) liabilities and obligation reflected in the Purchaser Financial
Statements, and (ii) current liabilities and obligations incurred in the usual
and ordinary course of business since February 28, 1997, and, in either such
case only as required by the express terms of the agreement or other instrument
pursuant to which the obligation or liability was incurred other than payments
of liabilities disclosed on Exhibit 5.06 and does warrant and represent that the
total outstanding liabilities of Purchaser shall not exceed $60,000 at Closing.
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5.07 Mortgages, Liens. Except with Airtech's prior written consent,
Purchaser will not enter into or assume any mortgage, pledge, conditional sale
or other title retention agreement, permit any lien, encumbrance or claim of any
kind to attach to any of its assets, whether nor owned or hereafter acquired, or
guarantee or otherwise become contingently liable for any obligations of another
or make any capital contributions or investments in any corporation, business or
other person.
5.08 Approvals of Third Parties. As soon as practicable after the
execution of this Agreement, but in any event prior to the Closing Date,
Purchaser will use its best efforts to secure all necessary approvals and
consents of third parties to the consummation of the transactions contemplated
by this Agreement.
ARTICLE VI
PURCHASER'S CONDITIONS PRECEDENT
Except as may be waived in writing by Purchaser, the obligations of
Purchaser hereunder are subject to the fulfillment at or prior to the Closing of
each of the following conditions:
6.01 Representations and Warranties. The representations and warranties
of Airtech contained herein shall be true and correct in all material respects
as of the Closing, and Purchaser shall not have discovered any material error,
misstatement or omission therein. At the Closing, Purchaser shall have received
a certificate, dated the date of the Closing, and executed by the President of
Airtech, certifying in such detail as Purchaser may reasonably request as to the
accuracy of such representations and warranties referred to in Article III and
the fulfillment of the obligations and compliance with the covenants referred to
in Article IV as of the Closing.
6.02 Proceedings. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement.
6.03 Consents and Approvals. Airtech shall have obtained, and delivered
to Purchaser evidence thereof, all consents and approvals required to be
obtained in connection with the consummation of the transactions contemplated
hereby.
6.04 No Material Adverse Change. No material, adverse change in the
assets, business operations or financial conditions of Airtech shall have
occurred after the date hereof and prior to the Closing. Purchaser shall have
received a letter from the chief financial officer of Airtech, dated the date of
the Closing, stating that on the basis of a limited review (not an audit) of the
latest available accounting records of Airtech, consultations with responsible
officers of Airtech, and other pertinent inquiries that they may deem necessary,
they have no reason to believe that during the period from February 29, 1996 to
a specific date not more than five business days before the Closing, there is
any change in the financial condition or results of operations of Airtech,
except for changes incurred in the ordinary and usual course of business of
Airtech during that period that in the aggregate are not materially adverse, and
except for other changes or transactions, if any, contemplated by this
Agreement.
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6.05 Approval of Airtech's Board of Directors and Selling Shareholders.
This Agreement shall have been approved by the Board of Directors of Airtech and
at least two-thirds of the Selling Shareholders entitled to vote thereon.
ARTICLE VII
CONDITIONS PRECEDENT OF AIRTECH SELLING SHAREHOLDERS
Except as may be waived in writing by Airtech and the Selling
Shareholders, the obligations of the Selling Shareholders hereunder are subject
to fulfillment at or prior to the Closing of each of the following conditions:
7.01 Representations and Warranties. The representations and warranties
of Purchaser contained herein shall be true and correct in all material respects
as of the Closing, and Airtech and the Selling Shareholders shall not have
discovered any material error, misstatement or omission therein. At the Closing,
Airtech and the Selling Shareholders shall have received a certificate, dated
the date of the Closing, and executed by the President of Purchaser, certifying
in such detail as Airtech and the Selling Shareholders may reasonably request as
to the accuracy of such representations and warranties referred to in Article II
and the fulfillment of the obligations and compliance with covenants referred to
in Article V as of the Closing.
7.02 Proceedings. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement.
7.03 Consents and Approvals. Purchaser shall have obtained, and
delivered to Airtech evidence thereof, all consents and approvals required to be
obtained in connection with the consummation of the transactions contemplated
hereby.
7.04 No Material Adverse Change. No material, adverse change in the
assets, business operations or financial condition of Purchaser shall have
occurred after the date hereof and prior to the Closing. The Selling
Shareholders shall have received a letter from the chief financial officer of
Purchaser, dated the date of the Closing, stating that on the basis of a limited
review (not an audit) of the latest available accounting records of Purchaser,
consultations with responsible officers of Purchaser, and other pertinent
inquiries that he may deem necessary, there is no reason to believe that during
the period from March 31, 1996 to a specific date not more than five business
days before the Closing, there is any change in the financial condition or
results of operations of Purchaser, except for changes incurred in the ordinary
and usual course of business of Purchaser, during that period that in the
aggregate are not materially adverse, and except for other changes or
transactions, if any, contemplated by this Agreement.
7.05 Approval of Purchaser's Board of Directors. This Agreement
shall have been approved by the Board of Directors of Purchaser.
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ARTICLE VIII
MISCELLANEOUS
8.01 Amendment. This Agreement may be amended, modified or supplemented
only by an instrument in writing executed by the party against which enforcement
of the amendment, modification or supplement is sought.
8.02 Parties in Interest. This Agreement shall be binding on and inure
to the benefit of and be enforceable by Selling Shareholders, Airtech, and the
Purchaser, their respective heirs, executors, administrators, legal
representatives, successors and assigns, except as otherwise expressly provided
herein.
8.03 Assignment. Neither this Agreement nor any right created hereby
shall be assignable by either party hereto except by Purchaser to a wholly-owned
subsidiary of Purchaser.
8.04 Notice. Any notice or communication must be in writing and given
by depositing the same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested or by delivering the same in person. Such notice shall be deemed
received on the date on which it is hand-delivered or on the third business day
following the date on which it is so mailed. For purposes of notice, the
addresses of the parties shall be:
If to Airtech:
Xxxx Xxxxxx, President
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to the Selling Shareholders:
At the address set forth above.
If to Purchaser:
Xxxxx Xxxxxxx West, Chairman and Chief Executive Officer
000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxx 00000
Any party may change its address for notice by written notice given to the other
parties.
8.05 Entire Agreement. This Agreement and the exhibits hereto supersede
all prior agreements and understandings relating to the subject matter hereof,
except that the obligations of any party under any agreement executed pursuant
to this Agreement shall not be affected by this Section.
8.06 Costs, Expenses and Legal Fees. Whether or not the transactions
contemplated hereby are consummated, each party hereto shall bear its own costs
and expenses (including attorneys' fees) except that each party hereto agrees to
pay the costs and expenses, including reasonable attorneys' fees, incurred by
the other parties in successfully (I) enforcing any of the terms of this
Agreement, or (ii) proving that the other parties breached any of the terms of
this Agreement in any material respect.
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8.07 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance here from. Furthermore,
in lieu of such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement, a provision as similar in its
terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable.
8.08 Governing Law. This Agreement and the rights and obligations of
the parties hereto shall be governed, construed and enforced in accordance with
the laws of the State of Colorado. The parties agree that any litigation
relating directly or indirectly to this Agreement must be brought before and
determined by a court of competent jurisdiction with the State of Colorado.
8.09 Captions. The captions in this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
8.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this agreement
effective as of the date first written above.
PURCHASER:
INTERACTIVE TECHNOLOGIES CORPORATION
/s/ Xxxxx Xxxxxxx West
Xxxxx Xxxxxxx West,
Chairman and Chief Executive Officer
AIRTECH:
AIRTECH INTERNATIONAL CORPORATION:
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx, President and Chairman
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SELLING SHAREHOLDERS:
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx, Power of Attorney
15
UNANIMOUS CONSENT IN LIEU OF A SPECIAL MEETING
OF THE
BOARD OF DIRECTORS
OF
AIRTECH INTERNATIONAL CORPORATION
May 8, 1997
The undersigned, being all of the members of the Board of Directors of
AIRTECH INTERNATIONAL CORPORATION (the "Corporation"), have, by signing this
consent, taken the following action without a meeting, pursuant to the
provisions of Article 9.10B of the Texas Business Corporation Act:
RESOLVED, that the Corporation enter into a Stock Purchase
Agreement between the Corporation, the Corporation's shareholders and
Interactive Technologies Corporation, a Wyoming corporation, a copy of
which is attached to this Consent marked Exhibit "A".
RESOLVED FURTHER, that the Corporation's President is hereby
authorized, on behalf of the Corporation, to execute the Stock Purchase
Agreement attached hereto as Exhibit "A", pursuant to the provisions of
Section 368(a)(1)(B) of the Internal Revenue Code, as amended.
EXECUTED effective as the day and year written above.
/s/ X. X. Comu
X. X. Comu
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
