ACQUISITION AGREEMENT AND PLAN OF MERGER
AND
PLAN OF MERGER
AGREEMENT, made effective this
24th day of May, 2005, by and among Conforce International, Inc., a Delaware
corporation, ("CNFC"), Conforce Container Corporation, an Ontario corporation
("CCC"), the persons executing this agreement (referred to collectively as
"Shareholders" and individually as "Shareholder") who own all of the outstanding
shares of CCC.
RECITALS
WHEREAS, CNFC a non-public,
non-reporting company desires to acquire, 100% of the total outstanding capital
stock of CCC;
WHEREAS, CNFC desires to
acquire all of the issued and outstanding shares of common stock of CCC in
exchange for 120,000,000 unissued shares of the common stock of CNFC upon
Closing (the "CNFC Common Stock" or "CNFC Shares");
WHEREAS, CCC and its
Shareholders agree to enter into a business combination transaction which shall
result in the combination of the two entities with the former Shareholders of
CCC controlling a majority of CNFC and CCC will become a wholly-owned subsidiary
of CNFC; and
WHEREAS, the Merger is
intended to qualify as a tax-free reorganization under Sections 368 (a)(l)(B) of
the Internal Revenue Code of 1986, as amended (the "Code");
and
NOW, THEREFORE, in
consideration of the mutual promises, covenants, and representations contained
herein, the parties hereto intending to be legally bound hereby, agree as
follows:
ARTICLE 1
EXCHANGE OF
SECURITIES
1.1 Issuance
of Shares. Subject to all of the
terms and conditions of this Agreement, CNFC agrees to exchange the CNFC Common
Stock in exchange for 100% of the outstanding common shares of CCC (the "CCC
Common Stock") with the Shareholders as set forth in Exhibit
A.
1.2 Exemption
from Registration; Reorganization. The parties hereto
intend that the CNFC Common Stock to be issued to the Shareholders shall be
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Act"), and pursuant to applicable state statutes. The parties
hereto expect this transaction to qualify as a tax-free reorganization under
Sections 368 (a)(l)(B) of the Internal Revenue Code of 1986, as amended (the
"Code") but no IRS
ruling or opinion of counsel is being sought in connection therewith and such
ruling or opinion is not a condition to closing the transactions herein
contemplated.
-1-
ARTICLE
2
REPRESENTATIONS AND
WARRANTIES OF
CCC
CCC
hereby represents and warrants to CNFC that:
2.1 Organization- CCC:
is a corporation duly organized, validly existing, and in good standing under
the laws of the Province of Ontario, has all necessary corporate powers to carry
on its business as now owned and operated, and is duly qualified to do business
and is in good standing in each of the states and other jurisdictions where its
business requires qualification.
2.2 Capital. CCC's
authorized capital presently consists of unlimited shares of Common Stock, no
par value, of which, as of the date hereof, 10,000 shares are issued and
outstanding and no shares, warrants or options have been reserved for issuance
based upon certain specified contingencies. All issued and outstanding shares
have been duly authorized, validly issued and are fully paid and non-assessable,
and subject to no preemptive rights of any shareholder. In
addition, there are unlimited common Class A, Class B, and Class C stock, of
which, as of the date hereof, no shares have been issued or are outstanding and
no shares, warrants or options have been reserved for issuance based upon
certain specified contingencies.
2.3
Business Plan.
The Business Plan of CCC delivered to CNFC accurately describes the business and
operations of CCC.
CCC has all right title and interest in future patents, formulas, trademarks,
know-how, and other intellectual property discussed in such Business Plan or
required to undertake the business and operations and manufacture and sell the
products described in such Business Plan and is not required to pay any
royalties for the use of such intellectual property to any person or
entity.
2.4 Directors and
Officers. Exhibit B to this Agreement, the text of which is
hereby incorporated by reference, contains the names and titles of all of the
directors and officers of CCC as of the date of this
Agreement,
2.5 Compliance with
Laws. CCC has substantially complied with, and is
not in violation of, all applicable federal, state or local statutes, laws and
regulations, including, without limitation, any applicable building, zoning,
environmental, employment or other law, ordinance or regulation affecting its
properties, products or the operation of its business except where such
non-compliance would not have a materially adverse effect on the business or
financial condition of CCC. CCC has all licenses and permits
required to conduct its business as now being conducted and as contemplated in
its Business Plan heretofore delivered to CNFC except where such non-compliance
would not have a materially adverse effect on the business or financial
condition of CCC.
2.6 Financial
Statements. CCC will deliver to CNFC, a
copy of the balance sheets of CCC as at March 31, 2005. These financial
statements have been prepared from the books and records of CCC, and present
fairly the financial position of CCC as of March 31, 2005, and have been
prepared in accordance with
generally accepted accounting principles consistently applied with those used in
preparing financial statements of CCC during prior fiscal
periods.
2.7 Absence of Changes.
Since the date of the most recent financial statements there has not been any
change in the financial condition or operations of CCC, except for changes in
the ordinary course of business, which changes have not in the aggregate been
materially adverse.
2.8 Absence of Undisclosed
Liabilities. As of the date of its most recent balance sheet, CCC did not
have any material debt, liability, or obligation of any nature, whether accrued,
absolute, contingent or otherwise, and whether due or to become due, that is not
reflected in such balance sheet or incurred in the ordinary course of business
following the date of the last balance sheet included.
-2-
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, CNFC and/or its attorneys shall have the
opportunity to meet with accountants and attorneys to discuss the financial
condition of CCC. CCC shall make available to CNFC and/or its attorneys all
books and records of CCC. If the transaction contemplated hereby is
not completed, all documents received by CNFC and/or its attorneys shall be
returned to CCC and all information so received shall be treated as
confidential.
2.10 Litigation. CCC is
not a party to any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation pending or, to the best knowledge of
CCC, threatened against or affecting CCC or its business, assets or financial
condition, except for matters which would not have a material affect on CCC
or its properties. CCC is not in default with respect to any order, writ,
injunction or decree of any federal, state, local or foreign court, department,
agency or instrumentality applicable to it. CCC is not engaged
in any lawsuits to recover any material amount of monies due to
it.
2.11 Ownership of
Shares. The delivery of CCC Common Stock as
contemplated herein will result in CNFC's immediate acquisition of record and
beneficial ownership of 100% of CCC's capital stock, free and clear of all liens
and encumbrances subject to applicable State and Federal securities
laws. Such shares were duly and validly issued, fully paid and
non assessable.
2.13
Ability to Carry Out
Obligations. The execution and delivery of this Agreement by the
Shareholders and CCC and the performance by the Shareholders of the obligations
hereunder in the time and manner contemplated will not cause, constitute or
conflict with or result in (a) any material breach or violation of any of the
provisions of or constitute a material default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaws, or other
agreement or instrument to which CCC is a party, or by which it may be bound,
nor will any consents or authorizations of any party other than those hereto be
required, (b) an event that would permit any party to any material agreement or
instrument to terminate it or to accelerate
the maturity of any indebtedness or other obligation of CCC, or (c) an event
that would result in the creation or imposition of any material lien, charge, or
encumbrance on any asset of CCC.
2.14 Assets. CCC
has good and marketable title to all of the properties and assets reflected on
its latest balance sheet (except for property and assets disposed of in the
ordinary course of business after the date thereof), free and clear of all liens
and encumbrances, except as noted therein, and except for liens of taxes not
delinquent.
2.15 Indemnification. Shareholders
(severally in proportion to their shares in CCC as set forth in Exhibit A) and
CCC agree to defend and hold CNFC 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 it shall incur or suffer, which arise out of, result from or
relate to any breach of, or failure by Shareholders to perform any of their
respective representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or to be furnished by
Shareholders under this Agreement.
-3-
ARTICLE
3
REPRESENTATIONS AND
WARRANTIES OF
CONFORCE INTERNATIONAL INC.
CNFC
represents and warrants to CCC and the Shareholders that:
3.1
Organization.
CNFC is a corporation duly organized, validly existing, and in good standing
under the laws of Delaware, has all necessary corporate powers to own its
properties and to carry on its business as now owned and operated, and duly
qualified to do business in each of such states and other jurisdictions where
its business requires such qualification.
3.2
Capital. CNFC's
authorized capital presently consists of 250,000,000 of common stock at $0.0001
par value, and 5,000,000 of Preferred Stock at $0.0001 par value, of which, as
of the date hereof, 1,000 shares of Common Stock and no shares of Preferred
Stock have been issued.
At
Closing, 120,001,000 shares of Common Stock and 0 shares of Preferred Stock will
be issued and outstanding. All of the issued and outstanding shares will be duly
and validly issued, fully paid and non-assessable. There are no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating CNFC to issue or to transfer from treasury
any additional shares of its capital stock of any class or repurchase any such
shares.
3.3
Business.
On or before the closing CNFC shall have no operations.
3.4 Financial Statements.
CNFC will deliver to CCC to a copy of the statement of account of CNFC as known
to the current officers and directors of CNFC at March 31, 2005. To the best of
our knowledge and information, CNFC has had no operations for more than three
years. These financial statements have been prepared from the books and records
of CNFC for the fiscal year then ended, and have been prepared in accordance
with generally accepted accounting principles consistently applied with those
used in preparing financial statements of CNFC during prior fiscal
periods.
3.5 Absence of
Changes. Since the date of the Balance Sheet there has
not been any change in the financial condition or operations of
CNFC.
3.6 Absence of Undisclosed
Liabilities. As of the date of the Balance Sheet CNFC did not have any
material.
3.7 Tax Returns. Within
the times and the manner prescribed by law, CNFC has filed all federal and state
tax return, as required by law, and has paid all taxes, assessments and
penalties due and payable. There are no present disputes as to taxes
of any nature payable by CNFC. Adequate provision has been made on the Balance
Sheet for all taxes of CNFC as of the date thereof.
3.8 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, Shareholders shall have the opportunity to
meet with CNFC's accountants to discuss the financial condition of
CNFC. CNFC shall make available to Shareholders all books and records
of CNFC in its possession and control.
3.9 Compliance with Laws.
CNFC has complied with all, and is not in violation of any, applicable federal,
provincial or local statutes, laws and regulations (including, without
limitation, any applicable building, zoning, environmental or other law,
ordinance, or regulation) affecting its properties or the operation of its
business, except where non-compliance would not have a materially adverse effect
on the business or operations of CNFC.
-4-
3.10 Litigation. CNFC
is not a party to any suit, action, arbitration, or legal, administrative, or
other proceeding, or governmental investigation pending or, to the best
knowledge of CNFC, threatened against or affecting CNFC or its business, assets,
or financial condition.
3.11 Authority. The
Board of Directors of CNFC has authorized the execution of this Agreement and
the transactions contemplated herein, and when approved by the shareholders of
CNFC it will have full power and authority to execute, deliver and perform this
Agreement and this Agreement will be the legal, valid and binding obligation of
CNFC, is enforceable in accordance with its terms and conditions, except as may
be limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally.
3.12 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by CNFC and the
performance by CNFC will not conflict with or result in (a) any material breach
or violation of any of the provisions of or constitute a default under any
license, indenture,
mortgage, charter, instrument, certificate of incorporation, bylaw, or other
agreement or instrument to which CNFC is a party, or by which it may be bound,
nor will any consents or authorizations of any party other than those hereto be
required, (b) an event that would permit any party to any material agreement or
instrument to terminate it or to accelerate the maturity of any indebtedness or
other obligation of CNFC, or (c) an event that would result in the creation or
imposition of any material lien, charge, or encumbrance on any asset of
CNFC.
3.13 Title. The shares of
CNFC stock to be issued pursuant to this Agreement will be, at closing, free and
clear of all liens, security interests, pledges, charges, claims encumbrances
and restrictions of any kind. None of such shares of CNFC stock are
or will be subject to voting trusts or agreements, no person holds or has the
right to receive any proxy or similar instrument with respect to such shares,
except as provided in this Agreement CNFC is not a party to any agreement that
offers or grants to any person the right to purchase or acquire any of the
securities to be issued pursuant to this Agreement There is no applicable local,
state or federal law rule, regulation or decree which would, as a result of the
issuance of the shares of CNFC stock, impair, restrict or delay any voting
rights with respect to the shares of CNFC stock.
3.14 National Quotation Bureau
Pink Sheet Listing. CNFC is not currently listed on the National
Quotation Bureau Pink Sheets Board ("Pink Sheets").
3.15 Indemnification.
'CNFC agrees to indemnify, defend and hold Shareholders and CCC 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 they shall incur or
suffer, which arise out of, result from or relate to any breach of, or failure
by CNFC to perform any of its representations, warranties, covenants and
agreements in this Agreement or in any exhibit or other instrument furnished or
to be furnished by CNFC under this Agreement
ARTICLE
4
ADDITIONAL REPRESENTATIONS
AND WARRANTIES OF SHAREHOLDERS
4.1 Share Ownership. The
Shareholders hold shares of CCC Common Stock as set forth in Exhibit A
hereto. The shares are owned of record and are held beneficially by
each holder thereof, and such shares are not subject to any lien, encumbrance or
pledge. Each Shareholder has the authority to exchange such shares pursuant to
this Agreement.
4.2 Investment Intent
Each Shareholder understands and acknowledges that the shares of CNFC Common
Stock are being offered for exchange in reliance upon the exemption provided in
Section 4(2) of the Securities Act of 1933 (the "Securities Act") for
non-public offerings; and each Shareholder makes the following representations
and warranties with the intent that the same may be relied upon in determining
the suitability of each Shareholder as a purchaser of securities.
-5-
(a) The
CNFC Shares are being acquired solely for the account of each Shareholder, for
investment purposes only, and not with a view to, or for sale in connection
with, any distribution thereof and with no present intention of distributing or
reselling any part of the CNFC Shares.
(b) Each
Shareholder agrees not to dispose of his CNFC Shares or any portion thereof
unless and until counsel for CNFC shall have determined that the intended
disposition is permissible and does not violate the Securities Act of 1933 (the
"1933 Act") or any applicable state securities laws, or the rules and
regulations thereunder.
(c) Each
Shareholder acknowledges that CNFC has made all documentation pertaining to all
aspects of CNFC and the transaction herein available to him/her and to his/her
qualified representative(s), if any, and has offered such person or persons an
opportunity to discuss CNFC and the transaction herein with the officers of
CNFC.
4.3
Shareholders land
Issued Stock. Exhibit A annexed hereto sets forth the
names, shareholdings and consents of 90% of CCC shareholders to this
transaction.
4.4 Indemnification. Each
Shareholder recognizes that the offer of CNFC Shares to him/her is based upon
his/her representations and warranties set forth and contained herein and hereby
agrees to indemnify and hold harmless CNFC against all liability, costs or
expenses (including reasonable attorney's fees) arising as a result of any
misrepresentations made herein by such Shareholder.
4.5 Restrictive
Legend. Each Shareholder agrees that the certificates
evidencing the CNFC Shares acquired pursuant to this Agreement will have a
legend placed thereon which will restrict the sale of said shares for times and
upon conditions that are subject to federal and state securities
laws.
ARTICLE
5
PRE-CLOSING
COVENANTS
5.1 Conduct of Business-
Prior to the Closing, CCC and CNFC shall each conduct its business in the normal
course, and shall not sell, pledge, or assign any assets, without the prior
written approval of the other party, except in the regular course of business.
Neither CCC or CNFC shall amend (unless otherwise stated) its Articles of
Incorporation or Bylaws, declare dividends, redeem or sell stock or other
securities, incur additional or newly-funded liabilities, 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, pay more on any
liability than its stated amount, or enter into any other transaction other than
in the regular course of business.
-6-
ARTICLE
6
POST-CLOSING
COVENANTS
6.1 For the one year following
the Closing herein;
(a) Change of
Shares. CNFC
will not decrease its outstanding common stock to less than 100,000,000 shares
by reverse stock split, combination, reclassification or other similar event for
one year following the Closing herein.
(b) Issue of
Additional Shares. Issuance and sales of
CNFC's securities to affiliated investors will be on the same terms as offered
to non-affiliated investors and shall be for fair market value, which may
include a reasonable discount to the quoted price published on the Pink
Sheets.
(c) No Interference
or Denial of Shares. Post closing, the
management of CNFC will not challenge the ownership rights of any existing
shareholders at the time of closing or in any manner interfere with their right
to transfer the same.
6.2 Prompt
resignation of officers and directors; not
applicable.
6.3 Benefit
for all CNFC Shareholders; The foregoing provisions
of this Article 6 are expressly set forth for the benefit of all shareholders of
CNFC and may not be amended or waived. Any shareholder damaged by a violation of
these provisions shall have the right to seek an injunction and/or damages,
including reasonable attorneys' fees, for such violation.
6.4 Maintain
Listing: Upon the closing the
undersigned management agrees to maintain the listing of the Company on the
OTC-Pink Sheets or higher exchange to the best of its
ability.
6.5 Anti-dilution
Clause: After the Closing Date,
CNFC agrees that the Shares of Xxxxxx Xxxxx shall not be subject to dilution in
any manner without the express written consent of Xxxxxx Xxxxx and during such
period, CNFC or its successor shall take no action, directly or indirectly, to
dilute or attempt to dilute the Shares issued to Xxxxxx Xxxxx. If, with the
express written consent of Xxxxxx Xxxxx, additional treasury shares of the
common stock of CNFC are issued, then the same number of free trading shares, if
applicable at time of issue, shall be issued to Xxxxxx Xxxxx to maintain his pro
rata percentage prior to additional issuance of such shares.
ARTICLE
7
CONDITIONS PRECEDENT TO
CNFC'S
PERFORMANCE
7.1 Conditions. CNFC's
obligations hereunder shall be subject to the satisfaction, at or before the
Closing, of all the conditions set forth in this Article 7. CNFC may waive any
or all of these conditions in whole or in part without prior notice; provided,
however, that no such waiver of a condition shall constitute a waiver by CNFC of
any other condition of or any of CNFC's other rights or remedies, at law or in
equity, if Shareholders shall be in default of any of their representations,
warranties, or covenants under this Agreement
-7-
7.2 Accuracy of
Representations. Except as otherwise permitted by this Agreement, all
representations and warranties by Shareholders in this Agreement or in any
written statement that shall be delivered to CNFC by Shareholders under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
7.3 Performance.
Shareholders shall have performed, satisfied, and complied with all covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it, on or before the Closing Date.
7.4 Absence of
Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against CCC on or before the Closing
Date.
7.5 Acceptance by CCC,
Shareholders. The holders of an aggregate of not less
than 90% of the issued and outstanding shares of common stock of CCC shall have
agreed to exchange their shares for shares of CNFC Common
Stock.
7.6 Certificate.
Shareholders shall have delivered to CNFC a certificate, dated the Closing Date,
certifying that each of the conditions specified in Sections 7.2 through 7.5
hereof have been fulfilled.
ARTICLE
8
CONDITIONS PRECEDENT TO
SHAREHOLDERS' PERFORMANCE
8.1
Conditions.
Shareholders' obligations hereunder shall be subject to the satisfaction, at or
before the Closing, of all the conditions set forth in this Article 8.
Shareholders may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by Shareholders of any other condition of or any of
Shareholders' rights or remedies, at law or in equity, if CNFC shall be in
default of any of its representations, warranties, or covenants under this
Agreement.
8.2 Accuracy of
Representations. Except as otherwise permitted by this Agreement, all
representations and warranties by CNFC in this Agreement or in any written
statement that shall be delivered to Shareholders by CNFC under this Agreement
shall be true and accurate on and as of the Closing Date as though made at that
time.
8.3 Performance. CNFC
shall have performed, satisfied, and complied with all covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it, on or before the Closing Date.
8.4 Absence of
Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against CNFC on or before the Closing
Date.
8.5 Conversion
of Notes Payable. None.
8.6 Agreement concerning
Liabilities. CNFC shall have entered into an agreement to
reduce its liabilities incurred in its operations prior to the closing on terms
satisfactory to Shareholders.
8.6 Officers'
Certificate. CNFC shall have delivered to Shareholders a certificate,
dated the Closing Date and signed by the President of CNFC certifying that each
of the conditions specified in Sections 8.2 through 8.5 have been
fulfilled.
-8-
ARTICLE 9 CLOSING
9.1
Closing. The
Closing of this transaction shall be held at the offices of CNFC, or such other
place as shall be mutually agreed upon, on such date as shall be mutually agreed
upon by the parties. In event the Closing herein has not been completed by June
15, 2005 any party hereto may terminate this agreement and in such event this
agreement shall be null and void. At the Closing:
(a) Each
Shareholder shall present the certificates representing his shares of CCC being
exchanged to CNFC, and such certificates will be duly
endorsed.
(b) Each
Shareholder shall receive a certificate or certificates representing the number
of shares of CNFC Common Stock for which the shares of CCC common stock shall
have been exchanged.
(c) CNFC
shall deliver an officer's certificate, as described in Section 8.6 hereof,
dated the Closing Date, that all representations, warranties, covenants and
conditions set forth in this
Agreement on behalf of CNFC are true and correct as of, or have been fully
performed and complied with by, the Closing Date.
(d) CNFC
shall deliver a signed consent and/or Minutes of the Directors of CNFC approving
this Agreement and each matter to be approved by the Directors of CNFC under
this Agreement.
(e)
Xxxxxx Xxxxx shall deliver a certificate, as described in Section 7.6 hereof,
dated the Closing Date, that all representations, warranties, covenants and
conditions set forth in this Agreement on behalf of Shareholders are true and
correct as of, or have been fully performed and complied with by, the Closing
Date, with the exception that the warranty as to ownership of shares by other
Shareholders is qualified to the best of their knowledge and
belief.
ARTICLE 10 MISCELLANEOUS
10.1 Captions. The
Article and paragraph headings throughout this Agreement are for convenience and
reference only, and shall in no way be deemed to define, limit, or add to the
meaning of any provision of this Agreement.
10.2 No Oral
Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
10.3 Non-Waiver. Except
as otherwise expressly provided herein, no waiver of any covenant, condition, or
provision of this Agreement shall be deemed to have been made unless expressly
in writing and signed by the party against whom such waiver is charged; and (i)
the failure of any party to insist in any one or more cases upon the performance
of any of the provisions, covenants, or conditions of this Agreement or to
exercise any option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants, or conditions,
(ii) the acceptance of performance of anything required by this Agreement to be
performed with knowledge of the breach or failure of a covenant, condition, or
provision hereof shall not be deemed a waiver of such breach or failure, and
(iii) no waiver by any party of one breach by another party shall be construed
as a waiver with respect to any other or subsequent breach.
10.4 Time of
Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
10.5 Non-competition
Agreement. Each of the Shareholders hereby jointly
and severally agrees that for a period of three (3) years following the Closing
herein, that they will not, directly or indirectly:
-9-
(a) Own,
operate, manage or be involved in any manner with any business that competes in
any way, either directly or indirectly, with CCC;
(b) Solicit
or contact any customers or former customers of CCC in connection with a
business in competition with CCC;
(c) Reveal,
disclose or use for any purpose, any trade secret, or other confidential or
proprietary information concerning CCC, or the identity or characteristics of
any customer, former customer or customer list; or
(d) Solicit
the services in any manner, or employ any employees of CCC for competing
employment or otherwise.
10.6 Entire
Agreement. This Agreement contains
the entire Agreement and understanding between the parties hereto, supersedes
all prior agreements and understandings, and constitutes a complete and
exclusive statement of the agreements, responsibilities, representations and
warranties of the parties.
10.7 Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument
10.8 Notices. All notices,
requests, demands, and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given or delivered by a
national courier service, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as
follows:
To
CNFC: Xxxxxx Xxxxx
To
CCC: Xxxxxx
Xxxxx
To
Shareholders: To the Shareholder's Representative c/o
CCC
10.9 Binding Effect. This Agreement shall
inure to and be binding upon the heirs, executors, personal representatives,
successors and assigns of each of the parties to this
Agreement.
10.10 Mutual
Cooperation. The parties
hereto shall cooperate with each other to achieve the purpose of this Agreement,
and shall execute such other and further documents and take such other and
further actions as may be necessary or convenient to effect the transaction
described herein.
10.11 Announcements. CNFC and Shareholders
will consult and cooperate with each other as to the timing and content of any
announcements of the transactions contemplated hereby to the general public or
to employees, customers or suppliers.
-10-
10.12 Expenses. Each party will pay its
own legal, accounting and any other out-of-pocket expenses reasonably incurred
in connection with this transaction, whether or not the transaction
contemplated hereby is consummated.
10.13 Brokerage. CCC, CNFC and
Shareholders each represent that no finder, broker, investment banker or other
similar person has been involved in this transaction. Each
party agrees to indemnity and hold the others harmless from payment of any
brokerage fee, finder's fee or commission claimed by any other person or entity
who claims to have been involved in the transaction herein because of an
association with such party.
10.14 Survival of
Representations and Warranties. The representations and
warranties of the parties set forth in this Agreement or in any instrument,
certificate, opinion, or other writing providing for in it, shall survive the
Closing irrespective of any investigation made by or on behalf of any party for
a period of one year.
10.15 Exhibits. As of the execution
hereof, the parties hereto have provided each other with the Exhibits provided
for hereinabove, including" any items referenced therein or required to be
attached thereto. Any material changes to the Exhibits shall be
immediately disclosed to the other party.
10.16 Arbitration of Disputes. Any dispute or
controversy arising out of or relating to this Agreement,, any document or
instrument delivered pursuant to, in connection with, or simultaneously with
this Agreement, or any breach of this Agreement or any such document or
instrument shall be settled by arbitration in accordance with the rules then in
effect of the American Arbitration Association or any successor thereto. The
arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitration shall be final,
conclusive and binding on die parties to the
arbitration. Judgment may be entered on the arbitrator's
decision in any court having jurisdiction. Each party in such
arbitration shall pay their respective costs and expenses of such arbitration
and all the reasonable attorneys' fees and expenses of their respective
counsel.
10.17 Choice of
Law. This Agreement and its application shall be governed
by the laws of the State of Delaware.
(SIGNATURE
PAGE TO FOLLOW)
-11-
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by their authorized
representatives, all as of the date first written above.
By: 
Marino
KuIas, President and CEO
Conferee
Container Corporation
By:
Xxxxxx
Xxxxx, CEO& President
-12-
SHAREHOLDER
CONSENT
OF
CONFORCE
CONTAINER CORPORATION
THE UNDERSIGNED, each being
shareholders of Conforce Container Corporation hereby represent and agree
that:
|
a)
|
they
own the number of shares of Conforce Container Corporation's common stock
as set forth beneath their respective signature
below;
|
|
b)
|
they
covenant and agree to comply with, undertake to perform, and abide by, the
various covenants, warranties and undertakings as set forth in
the foregoing Acquisition Agreement and Plan of Merger ("Agreement") made
effective this 24th day of May, 2005, by and among Conforce International,
Inc., Conforce Container Corporation, and the shareholders of Conferee
Container Corporation;
|
|
c)
|
they
covenant that all representations, warranties, covenants and conditions
set forth in this Agreement are true and correct as of, or have been fully
performed and complied with by, the Closing
Date.
|
|
d)
|
they
covenant that Xxxxx Xxxxxxxxx, President of Conforce Container
Corporation, will execute the Agreement on their
behalf
|
EXECUTED on the 24th day of
May, 2005 set with the respective signatures:
SHAREHOLDERS:
-13-
SHAREHOLDER
CONSENT
OF
CONFORCE
CONTAINER CORPORATION
THE UNDERSIGNED, each being
shareholders of Conforce Container Corporation hereby represent and agree
that:
|
a)
|
they
own the number of shares of Conforce Container Corporation's common stock
as set forth beneath their respective signature
below;
|
|
b)
|
they
covenant and agree to comply with, undertake to perform, and abide by, the
various covenants, warranties and undertakings
as set forth in the foregoing Acquisition Agreement and Plan of
Merger ("Agreement") made effective this 24th day of May, 2005, by and
among Conforce International, Inc., Conforce Container Corporation, and
the shareholders of Conforce Container
Corporation;
|
|
c)
|
they
covenant that all representations, warranties, covenants and conditions
set forth in this Agreement are true and correct as of, or have been fully
performed and complied with by, the Closing
Date.
|
|
d)
|
they
covenant that Xxxxxx Xxxxx. President of Conforce Container Corporation,
will execute the Agreement on their
behalf
|
EXECUTED on the 24th day of
May, 2005 set with the respective signatures:
SHAREHOLDERS:
XXXX
XXXXXXXXX
-14-
SHAREHOLDER
CONSENT
OF
CONFORCE
CONTAINER CORPORATION
THE UNDERSIGISED, each being
shareholders of Conforce Container Corporation hereby represent and agree
that:
|
a)
|
they
own the number of shares of Conforce Container Corporation's common stock
as set forth beneath their respective signature
below;
|
|
b)
|
they
covenant and agree to comply with, undertake to perform, and abide by, the
various covenants, warranties and undertakings as set forth in the
foregoing Acquisition Agreement and Plan of Merger ("Agreement") made
effective this 24th day of May, 2005, by and among Conforce International,
Inc., Conferee Container Corporation, and the shareholders of Conferee
Container Corporation;
|
|
c)
|
they
covenant that all representations, warranties, covenants and conditions
set forth in this Agreement are true and correct as of, or have been fully
performed and complied with by, the Closing
Date.
|
|
d)
|
they
covenant that Xxxxxx Xxxxx, President of Conforce Container Corporation,
will execute the Agreement on their
behalf
|
|
|
EXECUTED on the 24th day
of May, 2005 set with the respective
signatures:
|
|
|
SHAREHOLDERS:
|
|
|
XXXXXXX
XXXXXXXX
|
-15-
SHAREHOLDER
CONSENT
OF
CONFORCE
CONTAINER CORPORATION
THE UNDERSIGNED, each being
shareholders of Conforce Container Corporation hereby represent and agree
that:
|
a)
|
they
own the number of shares of Conforce Container Corporation's common stock
as set forth beneath their respective signature
below;
|
|
b)
|
they
covenant and agree to comply with, undertake to perform, and abide by, the
various covenants, warranties and undertakings as set forth in the
foregoing Acquisition Agreement and Plan of Merger ("Agreement") made
effective this 24th day of May, 2005, by and among Conforce International,
Inc., Conforce Container Corporation, and the shareholders of Conforce
Container Corporation;
|
|
c)
|
they
covenant that all representations, warranties, covenants and conditions
set forth in this Agreement are true and correct as of, or have been fully
performed and complied with by, the Closing
Date.
|
|
d)
|
they
covenant that Xxxxxx Xxxxx, President of Conforce Container Corporation,
will execute the Agreement on their
behalf
|
EXECUTED on the 24th day of
May, 2005 set with the respective signatures:
SHAREHOLDERS:
Xxxx
Xxxxxxx
-16-
SHAREHOLDER
CONSENT
OF
CONFORCE
CONTAINER CORPORATION
THE UNDERSIGNi;D, each being
shareholders of Conforce Container Corporation hereby represent and agree
that:
|
a)
|
they
own the number of shares of Conforce Container Corporation's common stock
as set forth beneath their respective signature
below;
|
|
b)
|
they
covenant and agree to comply with, undertake to perform, and abide by, the
various covenants, warranties and undertakings as set forth in the
foregoing Acquisition Agreement and Plan of Merger ("Agreement") made
effective this 24th day of May, 2005, by and among Conforce International,
Inc., Conforce Container Corporation, and the shareholders of Conforce
Container Corporation;
|
|
c)
|
they
covenant that all representations, warranties, covenants and conditions
set forth in this Agreement are true and correct as of, or have been fully
performed and complied with by, the Closing
Date.
|
|
d)
|
they
covenant that Xxxxxx Xxxxx, President of Conforce Container Corporation,
will execute the Agreement on their
behalf
|
EXECUTED on the 24th day of
May, 2005 set with the respective signatures:
SHAREHOLDERS:
XXXX
XXXXX
-17-
SHAREHOLDER
CONSENT
OF
CONFORCE
CONTAINER CORPORATION
THE UNDERSIGNED, each being
shareholders of Conforce Container Corporation hereby represent and agree
that:
|
a)
|
they
own the number of shares of Conforce Container Corporation's common stock
as set forth beneath their respective signature
below;
|
|
b)
|
they
covenant and agree to comply with, undertake to perform, and abide by, the
various covenants, warranties and undertakings
as set forth in the foregoing Acquisition Agreement
and Plan of Merger ("Agreement") made effective this 24th day of May,
2005, by and among Conforce International. Inc., Conforce Container
Corporation, and the shareholders of Conforce Container
Corporation;
|
|
c)
|
they
covenant that all representations, warranties, covenants and conditions
set forth in this Agreement are true and correct as of, or have been fully
performed and complied with by, the Closing
Date.
|
|
d)
|
they
covenant that Xxxxxx Xxxxx, President of Conforce Container Corporation,
will execute the Agreement on their
behalf
|
EXECUTED on the 24th day of
May, 2005 set with the respective signatures:
SHAREHOLDERS:
XXXXXXX
XXXXX
-18-
EXHIBIT
A
THE UNDERSIGNED, each being
shareholders of Conforce Container Corporation hereby represent that they own
the number of shares of Conforce Container Corporation's common stock as set
forth beneath their respective signature below and further covenant and agree to
comply with, undertake to perform, and abide by, the various covenants,
warranties and undertakings as set forth in die foregoing Acquisition Agreement
and Reorganization Plan made effective this 24th day of May, 2005, by and among
Conforce International, Inc., Conforce Container Corporation, and the
shareholders of Conforce Container Corporation.
EXECUTED on the date set forth
below the respective signatures:
SHAREHOLDERS:
Name;
Xxxxxx Xxxxx
Number of
Shares:
Date:
-19-
EXHIBIT
B
OFFICERS AND
DIRECTORS
Marino
Kuliis CEO,
President, Secretary, Director
-20-
CERTIFICATE
|
|
Re: Acquisition
Agreement and Plan of Merger dated 24th day of May 2005 by and
among Conforce International, Inc. and Conforce Container Corporation (the
"Agreement")
|
The
undersigned hereby certifies that he is the President of Conforce Container
Corporation, an Ontario corporation (the "Company"), and as such they are
authorized to execute and deliver this Certificate; and the further certifies
that:
|
|
(a)
All representations, warranties, covenants and conditions set forth in
this Agreement on behalf of the Company are true and correct as of, or
have been fully performed and complied with by, the Closing
Date.
|
All
capitalized terms used herein but not otherwise defined shall have the meaning
ascribed to them in the Agreement.
IN WITNESS THEREOF, the
undersigned has hereunder signed his name this 24th day of May,
2005.
Name;
Xxxxxx Xxxxx
-21-
RESOLUTIONS
OF THE BOARD OF DIRECTORS
OF
CONFORCE
INTERNATIONAL, INC.
(the
"Corporation")
The
undersigned, being all of the directors of Conforce International, Inc.,
a Delaware corporation (the "Corporation") hereby consent to the adoption of the
following resolution by written consent without a meeting effective the 24th day
of May, 2005.
ENABLING
RESOLUTION
RESOLVED that the Acquisition
Agreement and Plan of Merger with Conforce Container Corporation (the
"Agreement"), a copy of which is attached hereto is hereby approved and ratified
and any one
director is authorized to issue or transfer such shares as required pursuant to
the said Agreement.
RESOLVED that any one or more
directors of the Corporation is empowered and directed, in the name of and on
behalf of the Corporation, to execute and sign the Agreement, these resolutions;
and the officers of the Corporation are empowered and directed in the name of
and on behalf of the Corporation to execute and deliver all documents, to make
all payments, and to perform any other act as may be necessary from time to time
to carry our the purposes and intent of these resolutions. All such acts and
doings of the officers of the Corporation consistent with the purpose of this
resolution arc hereby authorized, approved, ratified and confirmed in all
respects.
Adopted
and executed (date): 24th day of May, 2005
-22-
CERTIFICATE
To: Conforce
Container Corporation
|
|
Re: Acquisition
Agreement and Plan of Merger dated 24th day of May 2005 by and among
Conforce International, Inc. and Conforce Container Corporation (the
"Agreement")
|
The
undersigned hereby certifies that he is the President and Secretary of
International Precious Minerals Group, Inc., a Delaware corporation (the
"Company"), and as such they are authorized to execute and deliver this
Certificate; and the further certifies that:
|
|
(b)
All representations, warranties, covenants and conditions set forth in
this Agreement on behalf of the Company are true and correct as of, or
have been fully performed and complied with by, the Closing
Date.
|
All
capitalized terms used herein but not otherwise defined shall have the meaning
ascribed to them in the Agreement.
Xxxxxx
Xxxxx
IN WITNESS WHEREOF, the
undersigned has hereunder signed his name this 24th day of May,
2005.
-23-
RESOLUTIONS
OF THE BOARD OF DIRECTORS
OF
CONFORCE
CONTAINER CORPORATION
(the
"Corporation")
The
undersigned, being all of the directors of Conforce Container Corporation,
an Ontario corporation (the "Corporation") hereby consent to the adoption
of the following resolution by written consent without a meeting effective the
24th day of May 2005.
ENABLING
RESOLUTION
RESOLVED that the Acquisition
Agreement and Plan of Merger with Conforce International, Inc. (the "Agreement"), a copy
of which is attached hereto is hereby approved and ratified and any one director
is authorized to issue or transfer such shares as required pursuant to the said
Agreement
RESOLVED that any one or more
directors of the Corporation is empowered and directed, in the name of and on
behalf of the Corporation, to execute and sign the Agreement, these resolutions;
and the officers of the Corporation are empowered and directed in the name of
and on behalf of the Corporation to execute and deliver all documents, to make
all payments, and to perform any other act as may be necessary from time to time
to carry our the purposes and intent of these resolutions. All such acts and
doings of the officers of the Corporation consistent with the purpose of this
resolution are hereby authorized, approved, ratified and confirmed in all
respects.
Adopted
and executed (date): 24th day of May, 2005
Xxxxxx
Xxxxx
-24-
