EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
BETWEEN
FLEXXTECH HOLDINGS, INC.
AND
PRIMAVERA CORPORATION
AND
NORTH TEXAS CIRCUIT BOARD COMPANY, INC.
DATED
AUGUST 15, 2000
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THIS STOCK PURCHASE AGREEMENT ( "Agreement"), dated as of August 15, 2000,
is made by and between Flexxtech Holdings, Inc., a Nevada corporation
("Flexxtech Holdings"), and Primavera Corporation, a Texas corporation
("Primavera"), and North Texas Circuit Board Company, Inc., a Texas corporation
("N. Texas").
WHEREAS Flexxtech Holdings and Primavera have agreed that Flexxtech
Holdings shall purchase majority ownership of the common stock of Primavera, the
parent company and one-hundred percent (100%) shareholder of North Texas Circuit
Board Company, Inc., ("N. Texas"), with each corporation surviving pursuant
their respective state's laws.
NOW THEREFORE, in consideration of the mutual promises and of the terms,
conditions, representations, warranties and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Agreement to Purchase Shares. Upon the terms and subject to the
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conditions of this Agreement, Flexxtech Holdings hereby agrees to purchase
sixty-seven percent (67%) of the issued and outstanding common stock of
Primavera (the "Purchase Price"). Primavera currently has One Hundred (100)
shares of issued and outstanding common stock and, at 67%, Flexxtech Holdings
will purchase Two Hundred and Three (203) shares of newly issued common stock of
Primavera (the "Common Stock"). In exchange for the Common Stock, Flexxtech
Holdings agrees to pay Primavera One Million Five Hundred Seventy-Five Thousand
Dollars ($1,575,000) in consideration. At the Execution of this Stock Purchase
Agreement, (the "Closing"), Primavera will deliver six (6) stock certificates in
the name of Flexxtech Holdings, Inc. in the total amount of Two Hundred and
Three (203) shares of Primavera common stock. The stock certificates shall be in
the amount of 30, 35, 35, 35, 35, 33 and shares of common stock. The Common
Stock shall be collateralized by a $1,000,000 Promissory Note (Exhibit A),
described in Section 1.1 (b) and held in escrow described in Section 1.2; and,
shall be released to Flexxtech upon the completion of each tranche closing
described in Section 1.1(a) and 1.1(b). Flexxtech Holdings' consideration shall
be payable as follows:
(a) Two Hundred Fifty Thousand Dollars ($250,000) shall be due on
the execution ("Closing") of this Agreement. At such time
Primavera shall deliver the certificate for Thirty (30)
shares of its common in the name of Flexxtech Holdings, Inc.
The 30 shares shall be free and clear of all liens and
encumberances.
(b) A Promissory Note for One Million Dollars ($1,000,000) shall
be due in five tranche closings as follows:
(1) Two Hundred Thousand Dollars ($200,000) shall be due on
September 15, 2000. At such time Thirty-Five (35) shares
in the name of Flexxtech Holdings, Inc. shall be free
and clear and released from escrow.
(2) Two Hundred Thousand Dollars ($200,000) shall be due on
October 15, 2000. At such time Thirty-Five (35) shares
in the name of Flexxtech Holdings, Inc. shall be free
and clear and released from escrow.
(3) Two Hundred Thousand Dollars ($200,000) shall be due on
November 15, 2000. At such time Thirty-Five (35) shares
in the name of Flexxtech Holdings, Inc. shall be free
and clear and released from escrow.
(4) Two Hundred Thousand Dollars ($200,000) shall be due on
December
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15, 2000. At such time Thirty-Five (35) shares in
the name of Flexxtech Holdings, Inc. shall be free and
clear and released from escrow.
(5) Two Hundred Thousand Dollars ($200,000) shall be due on
January 15, 2001. At such time Thirty-Three (33) shares in
the name of Flexxtech Holdings, Inc. shall be free and
clear and released from escrow.
(c) One Hundred Thirty Thousand (130,000) shares of Private
Placement Common Stock of Flexxtech Corporation, a Nevada
corporation (OTC: FLXT) ("Flexxtech Corporation"), the
corporate parent of Flexxtech Holdings. Said Common Stock of
Flexxtech Corporation shall be subject to a one (1) year lock-
up from the execution of this Agreement, during which time
period the Common Stock may not be sold on the public market.
Flexxtech agrees to piggyback registration rights for these
shares as described in Article I, section 1.8.
(1) Of the 130,000 shares of Flexxtech Corporation stock,
120,000 shall be distributed to existing shareholders of
Primavera and 10,000 shall be distributed to Xx Xxxx as a
Finder's Fee (Described in Section 2.25).
(2) In addition to shares of Flexxtech Corporation issued
pursuant to 1.1(C)(1), for advisory and consulting services
relating to this transaction 7,500 shares and 2,500 shares, of
Flexxtech Corporation shall be issued to Xxxxxx X. Xxxxxx and
Xxxxxx Xxxxxxxxx, Xx., respectively. Flexxtech agrees to
piggyback registration rights for these shares as described in
Article I, section 1.8.
(3) 1.1 Escrow. The parties agree that Xxxxxx Xxxx, Esq. of Floratos,
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Loll & Xxxxxx ("Escrow Agent") shall hold the Common Stock of Primavera in the
name of Flexxtech Holdings in escrow until each tranche described in Section
1.1(b) is satisfied.
1.2 Use of Funds. Of the $1,250,000 in funds paid to Primavera
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$1,000,000 shall be used for working capital of N. Texas and for expanding the
business. A more defined use of funds agreement shall be reached later by mutual
agreement of the parties.
1.3 Delivery of Shares From Comerica. On Closing, the delivery of
---------------------------------
$250,000 as described in Section 1.1(a), Primavera will deliver certificate
number 7, for 1,000 shares of common stock of N. Texas, representing one-hundred
percent of the total issued and outstanding shares. The shares are currently
held by Comerica Bank-Texas as collateral for loans and it is understood that
Primavera will make every effort for Comerica Bank-Texas to waive any liens or
encumbrances against certificate 7, for 1000 shares of common stock.
1.4 Voting Control. Flexxtech shall have full shareholder voting
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control of the Two Hundred and Three (203) shares of the Primavera stock
immediately following the Closing.
1.5 Boards of Directors. Primavera shall add two (2) more director
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positions to its Board of Directors, for a total of five (5). Flexxtech shall
have the right to make three (3) appointments each to the Board of Directors of
N. Texas and the Board of Directors of Primavera upon Closing. Both Boards of
Directors shall consist of five (5) members.
1.7 Employment Agreements. Subject to review by Flexxtech Holdings,
---------------------
N. Texas agrees to execute employment agreements with Xxxxxxx Xxxxxx, Xxxxxxxx
Xxxxxx and other key employees, under the general terms previously discussed.
1.8 Registration Rights. During the one year period commencing at
the Closing date, whenever Flexxtech Corporation files a registration statement
under the 1933 Act (including a "post-
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effective amendment" to a previous registration statement) which relates to a
current offering of securities of Flexxtech Corporation (except in connection
with an offering on Forms S-4 or S-8, or any other inappropriate form(s)),
Flexxtech Corporation shall offer to the Primavera shareholders described in
section 1.1(C)1 and 1.1(C)2 the opportunity to register or qualify the shares
for public trading. Flexxtech Corporation shall give at least 30 days' prior
notice to the Primavera Shareholders of its intention to file a registration
statement under the 1933 Act, which notice shall constitute an offer to the
Primavera Shareholders. The Primavera Shareholders shall pay for their own
selling expenses, commissions or underwriting discounts.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PRIMAVERA CORPORATION AND NORTH TEXAS CIRCUIT
BOARD COMPANY, INC.
Primavera and N. Texas, respectively, represents and warrants to, and
agrees with Flexxtech Holdings as follows:
2.1 Organization.
------------
(a) Primavera and N. Texas are a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas. Primavera
and N. Texas has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Primavera and N. Texas are duly qualified to do business and in good standing in
each jurisdiction in which its property or business makes such qualification
necessary. Primavera and N. Texas have heretofore delivered to Flexxtech
Holdings true, accurate and complete copies of Primavera's and N. Texas's
Articles of Incorporation and By-Laws as in effect on the date hereof and
minutes of al meetings of shareholders and directors of Primavera and N. Texas
held through and including the date of this Agreement. Except as set forth on
Schedule 3.1, Primavera and N. Texas are not in violation of any of the
provisions of its Articles of Incorporation nor its By-Laws.
2.2 Authority Relative to this Agreement. Primavera and N. Texas have
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full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transaction contemplated hereby have
been duly and validly authorized by the Board of Directors of Primavera and,
except for approval of the shareholders of Primavera and N. Texas, no other
corporate proceedings on the part of Primavera and N. Texas are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Primavera and
N. Texas and constitutes a valid and binding agreement, enforceable against it
in accordance with it terms.
2.3 No Conflict; Required Filings and Consents.
------------------------------------------
(a) The execution and delivery of this Agreement by Primavera and N.
Texas does not, and the consummation of the transactions contemplated hereby
will not, (i) to the best knowledge of Primavera and N. Texas after due inquiry
("Best Knowledge"), conflict with or violate any law, regulation, court order,
judgment or decree applicable to Primavera and N. Texas or by which its
properties are bound or affected; (ii) except as set forth on Schedule 2.3,
violate or conflict with either the Certificate of Incorporation or By-Laws of;
or (iii) except as set forth on Schedule 2.3, result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any right of termination or
cancellation of, or result in the creation of a lien on any of the properties of
Primavera and N. Texas pursuant to any contract to which it is a party or by
which Primavera and N. Texas or any of its respective properties is bound or
affected.
(b) Except for compliance with applicable state securities laws,
Primavera and N. Texas are not required to submit any notice, report or other
filing with any governmental entity or regulatory body, domestic or foreign, in
connection with the execution, delivery or performance of this
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Agreement or the consummation of the transactions contemplated hereby. No
waiver, consent, approval or authorization of any governmental entity or
regulatory body, domestic or foreign, is required to be obtained or made by
Primavera or N. Texas in connection with its execution, delivery or performance
of this Agreement or the consummation of the transactions contemplated hereby.
2.4 Capitalization; Legality of Issuance of Primavera.
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(a) Primavera has authorized capital stock of 1,000 shares of common
stock, with no par value, of which One Hundred (100) shares are issued and
outstanding. All the outstanding shares of capital stock of Primavera have been
duly authorized and are validly issued, fully paid and non-assessable. No
options, warrants, conversion rights, subscriptions or purchase rights of any
nature to acquire from Primavera, or commitments of Primavera to issue shares of
capital stock or other securities are authorized, issued or outstanding, nor is
Primavera obligated in any other manner to issue shares or rights to acquire any
of its capital stock or other securities. Except as set forth in Schedule 2.4,
none of Primavera's outstanding securities or authorized capital stock is
subject to any rights of redemption, repurchase, rights of first refusal,
preemptive rights or other similar rights, whether contractual, statutory or
otherwise, for the benefit of Primavera, any stockholder, or any other person or
entity. Except as set forth in Schedule 2.4, there are no restrictions on the
transfer of shares of capital stock of Primavera other than those imposed by
relevant federal and state securities laws and as otherwise contemplated by this
Agreement. There are no agreements, understandings, trusts or other
collaborative arrangements or understandings concerning the voting or transfer
of the capital stock of Primavera. Subject to the filing of one or more Notices
of Transaction pursuant to Texas law, the offer and sale of all capital stock
and other securities of Primavera issued before the date hereof and to be issued
hereafter complied with or were exempt or will comply with or be exempt from all
applicable federal and state securities laws, and no stockholder has a right of
rescission or damages with respect thereto. Except as set forth on Schedule 2.4,
Primavera does not have outstanding, and has no obligation to grant or issue,
and "phantom stock" or other right measured by the profits, revenues or results
of operations of Primavera or any portion thereof; or any similar rights. All
shares of Primavera are, and will continue to be, subject to a Shareholders
Agreement dated May 26, 2000.
2.5 Capitalization; Legality of Issuance of North Texas Circuit Board
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Company, Inc.
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(a) N. Texas has authorized capital stock of 10,000 shares of common
stock, with no par value, of which One Thousand (1000) shares are issued and
outstanding. All the outstanding shares of capital stock of N. Texas have been
duly authorized and are validly issued, fully paid and non-assessable. No
options, warrants, conversion rights, subscriptions or purchase rights of any
nature to acquire from N. Texas, or commitments of N. Texas to issue shares of
capital stock or other securities are authorized, issued or outstanding, nor is
N. Texas obligated in any other manner to issue shares or rights to acquire any
of its capital stock or other securities. Except as set forth in Schedule 2.5,
none of N. Texas's outstanding securities or authorized capital stock is subject
to any rights of redemption, repurchase, rights of first refusal, preemptive
rights or other similar rights, whether contractual, statutory or otherwise, for
the benefit of N. Texas, any stockholder, or any other person or entity. Except
as set forth in Schedule 2.5, there are no restrictions on the transfer of
shares of capital stock of N. Texas other than those imposed by relevant federal
and state securities laws and as otherwise contemplated by this Agreement. There
are no agreements, understandings, trusts or other collaborative arrangements or
understandings concerning the voting or transfer of the capital stock of N.
Texas. Subject to the filing of one or more Notices of Transaction pursuant to
Texas law, the offer and sale of all capital stock and other securities of N.
Texas issued before the date hereof and to be issued hereafter complied with or
were exempt or will comply with or be exempt from all applicable federal and
state securities laws, and no stockholder has a right of rescission or damages
with respect thereto. Except as set forth on Schedule 2.5, N. Texas does not
have outstanding, and has no obligation to grant or issue, and "phantom stock"
or other right measured by the profits, revenues or results of operations of N.
Texas or any portion thereof; or any similar rights.
(b) The Shares, when issued, sold and delivered in accordance with
the terms hereof for the per share Purchase Price, will be validly issued, fully
paid and non-assessable and will be issued in compliance with all applicable
federal and state securities laws.
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2.6 Financial Statements.
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(a) Primavera's and N. Texas's respective balance sheets as of July
31, 2000 (the "July 2000 Balance Sheet"), and the related statements of income
and retained earnings for the seven months ended July 31, 2000 (the "Company
Financial Statements") which have been compiled by N. Texas and the Financial
Statements for the 12 month period ended December 31, 1999, which have been
prepared by Xxxxx, Xxxxx and Company, certified public accountants, copies of
which have been delivered to Flexxtech Holdings, fairly represent the financial
condition of Primavera as of said dates and the results of its operations for
the periods then ended. Primavera and N. Texas shall employ its best efforts to
deliver audited consolidated financial statements within ninety (90) days of the
date hereof which shall be prepared in conformity with Generally Accepted
Accounting Principles ("GAAP") consistently applied for the periods covered (the
"Audited Financial Statement"). The Audited Financial Statements (i) shall be
prepared in accordance with GAAP applied on a consistent basis; (ii) in
accordance with the books and records of Primavera and N. Texas; and (iii) shall
present fairly the financial position and results of operations of Primavera and
N. Texas at the dates and for the periods to which they relate. Primavera and N.
Texas have maintained its books of account in accordance with GAAP applied on a
consistent basis, and such books and records are, and during the periods covered
by Primavera and N. Texas Financial Statements were, correct and complete in all
material respects, fairly and accurately reflect and reflected the income,
expenses, assets and liabilities of Primavera and N. Texas, and provide and
provided a fair and accurate basis for the preparation of Primavera and N. Texas
Financial Statements and of the tax returns and reports of Primavera and N.
Texas.
(b) Except and as to the extent reflected in Primavera's and N.
Texas's July 31, 2000 Balance Sheet, Primavera and N. Texas did not have any
direct or indirect liabilities, whether due or to become due, or arising out of
transactions entered into, or any state of facts existing, on or prior to July
31, 2000, which would be required to be reflected on Primavera's or N. Texas's
Interim Balance Sheet in accordance with GAAP.
2.6 Real and Personal Property.
--------------------------
(a) Primavera and N. Texas owns no real property. Primavera and N.
Texas have delivered to Flexxtech Holdings correct and complete copies of leases
and subleases for all real property leased or sublease by Primavera and N.
Texas. With respect to each such lease and sublease:
(i) the lease or sublease is legal, valid, binding, enforceable
against Primavera and N. Texas respectively, as to lessor, the lease is in full
force and effect;
(ii) except for the lessor's consent to the Combination Transaction,
the lease or sublease will continue to be legal, valid, binding, enforceable and
in full force and effect on substantially the same terms following the
consummation of the transaction contemplated hereby;
(iii) Primavera and N. Texas are not, and no other party to the
lease or sublease is in breach or default, and no event has occurred which, with
notice or lapse of time, would constitute a breach or default, or permit
termination, modification or acceleration thereunder;
(iv) there are no disputes, oral agreements, or forbearance
programs in effect as to the lease or sublease;
(v) with respect to each sublease, the representations and
warranties set forth in subsections (i) through (iv) above are true and correct
with respect to the underlying lease;
(vi) Primavera and N. Texas have not assigned, transferred, conveyed,
mortgaged, deeded in trust, or encumbered any interest in the leasehold or
subleasehold;
(vii) all facilities leased or subleased thereunder have received
all approvals of governmental authorities (including licenses and permits)
required in connection with the operation
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thereof and have been operated and maintained in accordance with applicable
laws, rules and regulations;
(viii) all facilities lease or subleased thereunder are supplied
with utilities and other services necessary for the operation of said
facilities.
(b) Primavera and N. Texas, respectively have good and marketable
title to, or valid leasehold interests in, all other assets used or held for use
in the conduct of its business, including, without limitation, the assets
reflected on the July 2000 Balance Sheet or acquired after the date thereof
(other than those which have been disposed of in the ordinary course of business
since such date), free and clear of any liens, other than liens reflected on the
July 2000 Balance Sheet, and liens for taxes not yet due and payable. All of the
assets owned or leased by Primavera and N. Texas are in all material respects in
good condition and repair, ordinary wear and tear excepted, and well maintained.
Except as set for on Schedule 2.6, there are no material capital expenditures
currently contemplated or necessary to maintain the current business of
Primavera and N. Texas.
2.7 Absence of Undisclosed Liabilities. Except to the extent reflected
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or reserved against in the July 2000 Balance Sheet, Primavera and N. Texas do
not have at that date any liabilities or obligations (secured, unsecured,
contingent or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with GAAP.
2.8 Absence of Certain Changes. Since July 31, 2000, (i) there has been
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no material adverse change in the condition (financial or otherwise), assets,
liabilities, results of operations, business or prospects of Primavera or N.
Texas, and (ii) nothing has occurred relative to the business or prospects of
Primavera or N. Texas which would have a material adverse effect on the future
business of Primavera or N. Texas.
2.9 Litigation. No investigation or review by and governmental entity or
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regulatory body, foreign or domestic, with respect to Primavera and N. Texas is
pending or, to the Best Knowledge of Primavera and N. Texas, threatened against
Primavera and N. Texas, and no governmental entity or regulatory body has
advised Primavera or N. Texas of an intention to conduct the same, except for
those listed on Schedule 2.9. There is no claim, action, suit, investigation or
proceeding pending or, to the Best Knowledge of Primavera or N. Texas,
threatened against affecting Primavera and N. Texas at law or in equity or
before any federal or state, municipal or other governmental entity or
regulatory body, or which challenges the validity of the Agreement or any action
taken or to be taken by Primavera and N. Texas pursuant to this Agreement,
except those listed on Schedule 2.9. As of the date hereof, Primavera and N.
Texas are not subject to, nor is there in existence any outstanding judgment,
award, order, writ, injunction or decree of any court, governmental entity or
regulatory body relating to Primavera and N. Texas.
2.10 Contracts.
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(a) Primavera and N. Texas has provided Flexxtech Holdings with the
following contracts, agreements, leases, licenses, arrangements, commitments,
sales orders, purchase orders or any claim or right or any benefit or obligation
arising thereunder or resulting therefrom and currently in effect, whether oral
or written, to which Primavera or N. Texas is a party ("Contracts"):
(i) any Contract (or group of related Contracts) for the lease
of personal property to or from any person providing for lease payments in
excess of $10,000 per annum;
(ii) any Contract (or group of related Contracts) for the
purchase or sale of raw materials, commodities, supplies, products, or other
personal property, or for the furnishing or receipt of services, the performance
of which will extend over a period of more than one year, result in a loss to
Primavera, or involve consideration in excess of $10,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which
it has created,
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incurred, assumed, or guaranteed any indebtedness for borrowed money, or any
capitalized lease obligation or under which it has imposed a lien on any of its
assets, tangible or intangible;
(v) any Contract concerning confidentiality or noncompetition;
(vi) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance or other plan or arrangement for
the benefit of its current or former directors, officers, and employees;
(vii) any Contract under which its has advanced or loaned any
amount to any of its directors, officers, and employees outside the ordinary
course of business;
(viii) any Contract under which the consent of the other party
thereto is required in connection with the assignment of such Contract in
connection with the transaction contemplated hereby;
(ix) any Contract under which the consequences of a default or
termination could have a material adverse effect on Primavera or N. Texas; or
(x) any other Contract (or group of related Contracts) the
performance of which involves consideration in excess of $10,000.
(b) All Contracts have been duly authorized and delivered by
Primavera and N. Texas and, any third party thereto, are in full force and
effect against Primavera and N. Texas and constitute the valid and binding
obligations of Primavera and N. Texas and, the respective parties thereto
enforceable in accordance with their respective terms. As to the Contracts, (i)
there are no existing breaches or defaults by Primavera and N. Texas thereunder
or, by the other parties to such Contracts; (ii) no event, act or omission has
occurred or, as a result of the consummation of the transactions contemplated
hereby, will occur which (with or without notice, lapse of time or the happening
or occurrence of any other event) would result in a default by Primavera and N.
Texas thereunder or give cause for termination thereof, provided that insofar as
the foregoing representation involves the actions or omissions of parties other
than Primavera and N. Texas, it shall be limited to the Best Knowledge of
Primavera; (iii) none of them will result in any loss to Primavera and N. Texas
upon completion or performance thereof; and (iv) none of the parties to the
Contracts have expressed and indication to Primavera and N. Texas of their
intention to cancel, renegotiate, or exercise or not exercise any option under
any such Contract.
2.11 Intellectual Property.
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(a) Primavera and N. Texas owns or has the right to use pursuant to
license, sublicense, agreement, or permission all (i) inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications, and patent
disclosures, together with all reissuances, continuations, continuations-in-
part, revisions, extensions, and reexaminations thereof; (ii) trademarks,
service marks, trade dress, logos, trade names, and corporate names, together
with all translations, adaptations, derivations, and combinations thereof, and
including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith; (iii) copyrightable works,
all copyrights, and all applications, registrations, and renewals in connection
therewith; (iv) mask works and all applications, registrations, and renewals in
connection therewith; (v) trade secrets and confidential business information
(including ideas, research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs,
drawings, blueprints, sketches, storyboards, models, engineering drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals); (vi) computer software (including
data and related documentation; (vii) other proprietary rights and know-how;
(viii) copies and tangible embodiments of any of the foregoing (in whatever form
or medium); and (ix) licenses and sublicenses granted and obtained with respect
thereto, and rights thereunder ("Intellectual Property") necessary for the
operation of the businesses of Primavera and as proposed to be conducted,
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(b) Except as set forth on Schedule 2.11, Primavera and N. Texas have
not interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual property rights of third parties, and Primavera
and N. Texas has never received and charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or violation
(including any claim that Primavera and N. Texas must license or refrain from
using any Intellectual property rights of any third party). No third party has
interfered with, infringed upon, misappropriated or otherwise come into conflict
with any Intellectual Property rights of Primavera or N. Texas.
(c) With respect to each item of Intellectual Property owned by
Primavera and N. Texas:
(i) Primavera and N. Texas possesses all right, title, and
interest in and to the item, free and clear of any lien, license or other
restriction;
(ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling or charge;
(iii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or is threatened which challenges
the legality, validity, enforceability, use or ownership of the item; and
(iv) Primavera and N. Texas has never agreed to indemnify any
person for or against any interference, infringement, misappropriation or other
conflict with respect to the item.
(d) With respect to each item of Intellectual Property used by
Primavera and N. Texas pursuant to any license, sublicense, agreement or
permission:
(i) the license, sublicense, agreement or permission covering
the item is legal, valid, binding, enforceable, and in full force and effect,
subject generally to the laws of bankruptcy and reorganization;
(ii) the license, sublicense, agreement or permission will
continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions contemplated
hereby;
(iii) no party to the license, sublicense, agreement or
permission is in breach or default, and no event has occurred which, with notice
or lapse of time, would constitute a breach or default, or permit termination,
modification, or acceleration thereunder;
(iv) no party to the license, sublicense, agreement or
permission has repudiated any provision thereof;
(v) with respect to each sublease, the representations and
warranties set forth in subsections (i) through (iv) above are true and correct
with respect to the underlying license;
(vi) the underlying item of Intellectual Property is not subject
to any outstanding injunction, judgment, order, decree, ruling or charge;
(vii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or threatened which challenges
the legality, validity, or enforceability of the underlying item of Intellectual
Property; and
(viii) Primavera and N. Texas has never granted any sublicense or
similar right with respect to the license, sublicense, agreement or permission.
(e) Primavera and N. Texas does not, and will not interfere with,
infringe upon,
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misappropriate, or otherwise come into conflict with, any Intellectual Property
rights of third parties as a result of the continued operation of its businesses
as presently conducted and as presently proposed to be conducted.
2.12 Software.
--------
(a) Except with respect to software programs licensed to Primavera
and N. Texas, Primavera and N. Texas are in actual possession of the source code
of each software program used in connection with its business, and Primavera is
in possession of all other documentation reasonably necessary for the effective
use of each software program.
(b) There are no defects in any of the software offered by Primavera
or N. Texas in connection with its business which would in any material and
adverse respect affect the functioning of any such software in accordance with
the specifications therefore published by Primavera and N. Texas or heretofore
provided to any customers or prospective customers of Primavera and N. Texas,
and each piece of such software, together with all know-how and processes used
in connection therewith, functions as intended, conforms to all applicable
industry standards, contains all current revisions of such software and includes
all computer programs, materials, tapes, know-how, object and source codes and
procedures used by Primavera and N. Texas in the conduct of its business.
2.13 Receivables; Payables.
---------------------
(a) Except as set forth on Schedule 2.13, all accounts receivable of
Primavera and N. Texas which are or will be reflected on Primavera and N. Texas
Financial Statements will arise in the ordinary course of business out of bona
fide sales and deliveries of goods, services or other business transactions. All
accounts receivable of Primavera and N. Texas are reflected properly on its
books and records, are valid receivables subject to no setoffs or counterclaims
of which Primavera and N. Texas is aware, are current and collectible, and will
be collected in accordance with their terms at their recorded amounts.
(b) All accounts payable (including, without limitation, Taxes
payable) reflected on the Primavera and N. Texas Interim Balance Sheet have been
and are being paid in the ordinary course of its business and consistent with
past practice.
2.14 Licenses, Permits and Consents; Compliance with Applicable Law.
--------------------------------------------------------------
(a) Primavera and N. Texas possesses all licenses and permits which
individually or in the aggregate are material to the conduct of the business of
Primavera and N. Texas or any of its employees by reason of such employee's
activities on behalf of Primavera and N. Texas under applicable law or required
by any federal, state, local or foreign governmental entity or regulatory body
for the operation of the business of Primavera and N. Texas, and all of such
listed licenses and permits are in full force and effect as of the date hereof
and will remain in full force and effect following the consummation of the
transactions contemplated hereby. Primavera and N. Texas has not received notice
and has no reason to believe, that any appropriate authority intends to cancel
or terminate any of such licenses or permits or that valid grounds for such
cancellation or termination currently exist.
(b) Primavera and N. Texas are not in material violation or breach of
any, and the business and operations of Primavera comply in all material
respects and are being conducted in accordance with, all material governing
laws, regulations and ordinances applicable thereto, and Primavera and N. Texas
are not in material violation of or in material default under any judgment,
award, order, writ, injunction or decree of any court, arbitration tribunal,
governmental entity or regulatory body.
2.15 Insurance. Primavera and N. Texas maintains insurance covering
---------
Primavera's and N. Texas's properties and business adequate and customary for
the type and scope of the properties, assets and business, and similar to
companies of comparable size and condition similarly situated in the same
industry in which Primavera and N. Texas operates, but in any event in amounts
sufficient to prevent
10
Primavera and N. Texas from becoming a co-insurer or self-insurer, with
provision for reasonable deductibles and following the Effective Time, Primavera
and N. Texas will use its reasonable best efforts to obtain as promptly as
practicable comparable coverage under policies in Primavera's and N. Texas's own
name and on commercially reasonable terms.
2.16 Tax Matters. Primavera and N. Texas have timely filed all required
-----------
federal, state, local, foreign and other governmental Tax returns and reports
required to be filed by it for all taxable periods ending on or before the date
hereof. As of the time of filing, such returns and reports were true, complete
and correct, and were made on a proper basis. All federal, state, local and
foreign income, unincorporated business, gross receipts, franchise, profits,
property, capital, intangibles, employment, excise or other taxes, fees, stamp
taxes, duties, penalties, assessments, governmental charges or other payments
(collectively "Tax" or "Taxes") for all periods up to and including the date
hereof have been duly paid or withheld, or will be on the date hereof, and
adequately reserved for or withheld in accordance with GAAP applied on a
consistent basis.
2.17 Books and Records. The corporate minute books, stock certificate
-----------------
books, stock registers and other corporate records of Primavera and N. Texas are
correct and complete in all material respects, and the signatures appearing on
all documents contained therein are true signatures of the persons purporting to
have signed the same.
2.18 Entire Business. Except for N. Texas, no portion of the business of
---------------
Primavera is conducted by third parties and all of the assets necessary for the
conduct of the business of Primavera and N. Texas respectively, as presently
conducted are owned by Primavera and N. Texas. All such assets are exclusively
owned or leased and used by Primavera and N. Texas, and its customers.
2.19 Employee Benefit Plans. Each employee benefit plan (and each related
----------------------
trust, insurance contract, or fund) complies in form and in operation in all
respects with the applicable requirements of ERISA, the Internal Revenue Code
("IRS Code"), and other applicable laws. All required reports and descriptions
have been filed or distributed appropriately with respect to each such employee
benefit plan.
2.20 Suppliers and Customers.
-----------------------
(a) Primavera and N. Texas have no knowledge or information or reason
to believe that any significant supplier has ceased, or intends to cease, to
sell goods or services to Primavera or N. Texas, or has substantially reduced,
or intends to substantially reduce, the sale of such goods or services either as
a result of the transaction contemplated by the Agreement or otherwise, or
intends to sell such goods and services other than on terms and conditions
similar to those imposed on prior sales to Primavera or N. Texas.
(b) Primavera and N. Texas have no knowledge that any of its
significant customers has ceased, or intends to cease, to purchase goods from
Primavera or N. Texas, either as a result of the transaction contemplated hereby
or otherwise.
2.21 Product Warranties, Product Return Policies and Service Warranties.
------------------------------------------------------------------
Except as set forth on Schedule 2.21, each product or service developed, sold or
provided by Primavera and N. Texas has been in conformity with all applicable
contractual commitments and all express and implied warranties, and Primavera
has no liability for replacement or repair thereof or other damages in
connection therewith. No product or service developed, sold or provided by
Primavera or N. Texas is subject to any guaranty, warranty, or other indemnity
beyond the applicable standard terms and conditions of sale or lease. There are
no pending and suspected claims or demands threatened claims or demands, seeking
return, replacement and,/or repair of products pursuant to warranties extended
by Primavera and N. Texas prior to the date hereof.
2.22 Employees; Labor Matter.
-----------------------
(a) No officer, employee or consultant of Primavera or N. Texas is,
or, to
11
Primavera's or N. Texas's knowledge, is now anticipated to be in violation of
any material term of any employment contract, patent disclosure agreement,
proprietary information agreement, non-competition agreement, non-solicitation
agreement, confidentiality agreement, or any other similar contract or agreement
or any restrictive covenant relating to the right of any such officer, employee,
or consultant to be employed or engaged by Primavera or N. Texas because of the
nature of the business conducted or to be conducted by Primavera and N. Texas or
relating to the use of trade secrets or proprietary information of others or the
continued employment or engagement of Primavera's and N. Texas's officers,
employees or consultants does not subject Primavera to any liability with
respect to any one of the foregoing matters.
(b) No officer, consultant or key employee of Primavera and N. Texas
whose termination, either individually or in the aggregate, could have a
material adverse effect on Primavera and N. Texas, has terminated since the date
hereof or has any present intention of terminating, his employment or engagement
with Primavera or N. Texas, nor has any such person been, or been proposed to
be, terminated by Primavera or N. Texas.
(c) Primavera and N. Texas are not a party to any collective
bargaining agreements. There is no unfair labor practice or employment
discrimination or other employment related complaint, grievance or proceeding
against either Primavera or N. Texas or against any person or entity with
respect to any employee of Primavera or N. Texas pending or threatened before
the National Labor Relations Board or any federal, state, local or foreign
governmental entity or regulatory body. There is no basis for any such
complaint, grievance or proceeding.
(d) Primavera and North Texas is in compliance in all material
respects with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours. Primavera and
N. Texas has fully complied with all applicable provisions of COBRA and has no
obligations with respect to any former employees qualifying as beneficiaries
thereunder. Primavera enjoys satisfactory relations with its employees and
agents.
2.23 Environmental, Health and Safety Matters. Primavera and N. Texas
----------------------------------------
are not in violation of any applicable statute, law or regulation relating to
the environment or occupational safety and health, and to the Best Knowledge of
Primavera and N. Texas, no material expenditures will be required in order to
comply with any such statute, law or regulation.
2.24 Absence of Certain Business Practices. Primavera's and N. Texas's
-------------------------------------
directors, officers, employees or agents, nor any other person or entity or
entity acting on its or their behalf has, directly or indirectly, within the
past five (5) years, given or agreed to give any gift or similar benefit to any
customer, supplier, governmental employee or other person or entity or entity
that is or may be in a position to help or hinder the business of Primavera or
N. Texas or assist Primavera or N. Texas in connection with any actual or
proposed transaction which (i) might subject Primavera to any damage or penalty
in any civil, criminal or governmental litigation or proceeding, or (ii) might
have had a material adverse effect on Primavera or N. Texas if not given in the
past, or (iii) might materially adversely affect the condition (financial or
otherwise), business, assets, liabilities, operations or prospects of Primavera
and N. Texas, or which might subject Primavera and N. Texas to suit or penalty
in any private or governmental litigation or proceeding if not continued in the
future.
2.25 Broker's or Finder's Fees. Except as set forth in Schedule 2.25,
-------------------------
there is no investment banker, broker, finder or other intermediary which has
been retained by, or is authorized to act on behalf of Primavera or N. Texas who
might be entitled to any fee or commission from Primavera or N. Texas upon
consummation of the Stock Purchase Agreement accept for Xx Xxxx as Finder.
Finder shall receive ten thousand (10,000) shares of common stock of Flexxtech
Corporation. The Xx Xxxx shares will be paid out of the 130,000 shares to be
issued to existing Primavera shareholders.
2.26 Disclosure. Neither the Offering, this Agreement nor any certificate
----------
delivered in accordance with the terms hereof, or any document or statement in
writing which has been supplied by or on behalf of Primavera and N. Texas, or by
any of Primavera's or N. Texas's directors, or officers, in connection with the
transactions contemplated hereby, contains any untrue statement of a material
fact, or
12
omits any statement of a material fact necessary in order to make the statements
contained herein or therein not misleading. There is no fact or circumstance
known to Primavera or N. Texas which materially and adversely affects or which
may materially and adversely affect its business prospects, financial condition,
or its assets, which has not been set forth in this Agreement, or any
certificates or statements furnished in writing.
2.27 Transactions in the Common Stock. Except as contemplated hereby,
--------------------------------
Primavera and N. Texas have not sold, offered to sell, or granted any option to
purchase any contract to sell any of its Common Stock during the twelve (12)
month period preceding the date hereof, except for the NTCB Stock Purchase
Agreement date May 11, 2000.
ARTICLE III
COVENANTS OF FLEXXTECH HOLDINGS
Flexxtech Holdings covenants and agrees with Primavera:
3.1 Compliance with Laws. Flexxtech Holdings shall comply with all
--------------------
applicable laws, rules, regulations and orders, the noncompliance with which
could materially adversely affect its business or condition, financial or
otherwise, including applicable environmental laws.
(a) Flexxtech Holdings is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Flexxtech
Holdings has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Flexxtech Holdings is duly qualified to do business and in good standing in each
jurisdiction in which its property or business makes such qualification
necessary. Flexxtech Holdings has heretofore delivered to Flexxtech Holdings
true, accurate and complete copies of Flexxtech Holdings's Articles of
Incorporation and By-Laws as in effect on the date hereof and minutes of al
meetings of shareholders and directors of Flexxtech Holdings held through and
including the date of this Agreement. Flexxtech Holdings is not in violation of
any of the provisions of its Articles of Incorporation nor its By-Laws.
3.2 Authority Relative to this Agreement. Flexxtech Holdings has full
------------------------------------
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transaction contemplated hereby have
been duly and validly authorized by the Board of Directors of Flexxtech Holdings
and, except for approval of the shareholders of Flexxtech Holdings, no other
corporate proceedings on the part of Flexxtech Holdings are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Flexxtech
Holdings and constitutes a valid and binding agreement, enforceable against it
in accordance with it terms.
3.3 No Conflict; Required Filings and Consents.
------------------------------------------
(a) The execution and delivery of this Agreement by Flexxtech
Holdings does not, and the consummation of the transactions contemplated hereby
will not, (i) to the best knowledge of Flexxtech Holdings after due inquiry
("Best Knowledge"), conflict with or violate any law, regulation, court order,
judgment or decree applicable to Flexxtech Holdings or by which its properties
are bound or affected; (ii) except as set forth on Schedule 2.3, violate or
conflict with either the Certificate of Incorporation or By-Laws of; or (iii)
except as set forth on Schedule 2.3, result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any right of termination or cancellation of,
or result in the creation of a lien on any of the properties of Flexxtech
Holdings pursuant to any contract to which it is a party or by which Flexxtech
Holdings or any of its respective properties is bound or affected.
(b) Except for compliance with applicable state and federal
securities laws,
13
Flexxtech Holdings is not required to submit any notice, report or other filing
with any governmental entity or regulatory body, domestic or foreign, in
connection with the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby. No waiver, consent,
approval or authorization of any governmental entity or regulatory body,
domestic or foreign, is required to be obtained or made by Flexxtech Holdings in
connection with its execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
3.4 Capitalization; Legality of Issuance.
------------------------------------
(a) Flexxtech Holdings has authorized capital stock of 25,000,000
shares of common stock, par value $.001, of which 100 are issued and
outstanding. All the outstanding shares of capital stock of Flexxtech Holdings
have been duly authorized and are validly issued, fully paid and non-assessable.
No options, warrants, conversion rights, subscriptions or purchase rights of any
nature to acquire from Flexxtech Holdings, or commitments of Flexxtech Holdings
to issue shares of capital stock or other securities are authorized, issued or
outstanding, nor is Flexxtech Holdings obligated in any other manner to issue
shares or rights to acquire any of its capital stock or other securities. Except
as set forth in Schedule 2.4, none of Flexxtech Holdings's outstanding
securities or authorized capital stock is subject to any rights of redemption,
repurchase, rights of first refusal, preemptive rights or other similar rights,
whether contractual, statutory or otherwise, for the benefit of Flexxtech
Holdings, any stockholder, or any other person or entity. Except as set forth in
Schedule 2.4, there are no restrictions on the transfer of shares of capital
stock of Flexxtech Holdings other than those imposed by relevant federal and
state securities laws and as otherwise contemplated by this Agreement. There are
no agreements, understandings, trusts or other collaborative arrangements or
understandings concerning the voting or transfer of the capital stock of
Flexxtech Holdings. Subject to the filing of one or more Notices of Transaction
pursuant to Section 25102(f) of the California Corporation Code (the "CCC"), the
offer and sale of all capital stock and other securities of Flexxtech Holdings
issued before the date hereof and to be issued hereafter complied with or were
exempt or will comply with or be exempt from all applicable federal and state
securities laws, and no stockholder has a right of rescission or damages with
respect thereto. Except as set forth on Schedule 2.4, Flexxtech Holdings does
not have outstanding, and has no obligation to grant or issue, and "phantom
stock" or other right measured by the profits, revenues or results of operations
of Flexxtech Holdings or any portion thereof; or any similar rights.
(b) The Shares, when issued, sold and delivered in accordance with
the terms hereof for the per share Purchase Price, will be validly issued, fully
paid and non-assessable and will be issued in compliance with all applicable
federal and state securities laws.
3.5 Litigation. No investigation or review by and governmental entity or
----------
regulatory body, foreign or domestic, with respect to Flexxtech Holdings is
pending or, to the Best Knowledge of Flexxtech Holdings, threatened against
Flexxtech Holdings, and no governmental entity or regulatory body has advised
Flexxtech Holdings of an intention to conduct the same, except for those listed
on Schedule 2.9. There is no claim, action, suit, investigation or proceeding
pending or, to the Best Knowledge of Flexxtech Holdings, threatened against
affecting Flexxtech Holdings at law or in equity or before any federal or state,
municipal or other governmental entity or regulatory body, or which challenges
the validity of the Agreement or any action taken or to be taken by Flexxtech
Holdings pursuant to this Agreement, except those listed on Schedule 2.9. As of
the date hereof, Flexxtech Holdings is not subject to, nor is there in existence
any outstanding judgment, award, order, writ, injunction or decree of any court,
governmental entity or regulatory body relating to Flexxtech Holdings.
3.6 Licenses, Permits and Consents; Compliance with Applicable Law.
--------------------------------------------------------------
(a) Flexxtech Holdings possesses all licenses and permits which
individually or in the aggregate are material to the conduct of the business of
Flexxtech Holdings or any of its employees by reason of such employee's
activities on behalf of Flexxtech Holdings under applicable law or required by
any federal, state, local or foreign governmental entity or regulatory body for
the operation of the business of Flexxtech Holdings, and all of such listed
licenses and permits are in full force and effect as of the date
14
hereof and will remain in full force and effect following the consummation of
the transactions contemplated hereby. Flexxtech Holdings has not received notice
and has no reason to believe, that any appropriate authority intends to cancel
or terminate any of such licenses or permits or that valid grounds for such
cancellation or termination currently exist.
(b) Flexxtech Holdings is not in material violation or breach of any,
and the business and operations of Flexxtech Holdings comply in all material
respects and are being conducted in accordance with, all material governing
laws, regulations and ordinances applicable thereto, and Flexxtech Holdings is
not in material violation of or in material default under any judgment, award,
order, writ, injunction or decree of any court, arbitration tribunal,
governmental entity or regulatory body.
3.7 Tax Matters. Flexxtech Holdings has timely filed all required
----------
federal, state, local, foreign and other governmental Tax returns and reports
required to be filed by it for all taxable periods ending on or before the date
hereof. As of the time of filing, such returns and reports were true, complete
and correct, and were made on a proper basis. All federal, state, local and
foreign income, unincorporated business, gross receipts, franchise, profits,
property, capital, intangibles, employment, excise or other taxes, fees, stamp
taxes, duties, penalties, assessments, governmental charges or other payments
(collectively "Tax" or "Taxes") for all periods up to and including the date
hereof have been duly paid or withheld, or will be on the date hereof, and
adequately reserved for or withheld in accordance with GAAP applied on a
consistent basis.
3.8 Books and Records. The corporate minute books, stock certificate
-----------------
books, stock registers and other corporate records of Flexxtech Holdings are
correct and complete in all material respects, and the signatures appearing on
all documents contained therein are true signatures of the persons purporting to
have signed the same.
3.9 Entire Business. No portion of the business of Flexxtech Holdings is
---------------
conducted by third parties and all of the assets necessary for the conduct of
the business of Flexxtech Holdings as presently conducted are owned by Flexxtech
Holdings. All such assets are exclusively owned or leased and used by Flexxtech
Holdings.
3.10 Employees; Labor Matter.
-----------------------
(a) To the Best Knowledge of Flexxtech Holdings, no officer, employee
or consultant of Flexxtech Holdings is, or, to Flexxtech Holdings's knowledge,
is now anticipated to be in violation of any material term of any employment
contract, patent disclosure agreement, proprietary information agreement, non-
competition agreement, non-solicitation agreement, confidentiality agreement, or
any other similar contract or agreement or any restrictive covenant relating to
the right of any such officer, employee, or consultant to be employed or engaged
by Flexxtech Holdings because of the nature of the business conducted or to be
conducted by Flexxtech Holdings or relating to the use of trade secrets or
proprietary information of others, and to the Best Knowledge of Flexxtech
Holdings, the continued employment or engagement of Flexxtech Holdings's
officers, employees or consultants does not subject Flexxtech Holdings to any
liability with respect to any one of the foregoing matters.
(b) No officer, consultant or key employee of Flexxtech Holdings
whose termination, either individually or in the aggregate, could have a
material adverse effect on Flexxtech Holdings, has terminated since the date
hereof, or to the Best Knowledge of Flexxtech Holdings has any present intention
of terminating, his employment or engagement with Flexxtech Holdings, nor has
any such person been, or been proposed to be, terminated by Flexxtech Holdings.
(c) Flexxtech Holdings is not a party to any collective bargaining
agreements. There is no unfair labor practice or employment discrimination or
other employment related complaint, grievance or proceeding against either
Flexxtech Holdings or against any person or entity with respect to any employee
of Flexxtech Holdings pending or, to the Best Knowledge of Flexxtech Holdings,
threatened before the National Labor Relations Board or any federal, state,
local or foreign governmental entity or regulatory body. To the Best Knowledge
of Flexxtech Holdings, there is no basis for any such complaint,
15
grievance or proceeding.
(d) Flexxtech Holdings is in compliance in all material respects with
all applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours. Flexxtech Holdings has fully
complied with all applicable provisions of COBRA and has no obligations with
respect to any former employees qualifying as beneficiaries thereunder.
Flexxtech Holdings enjoys satisfactory relations with its employees and agents.
3.11 Environmental, Health and Safety Matters. Flexxtech Holdings is not
----------------------------------------
in violation of any applicable statute, law or regulation relating to the
environment or occupational safety and health, and to the Best Knowledge of
Flexxtech Holdings, no material expenditures will be required in order to comply
with any such statute, law or regulation.
3.12 Absence of Certain Business Practices. To the Best Knowledge of
-------------------------------------
Flexxtech Holdings, Flexxtech Holdings's directors, officers, employees or
agents, nor any other person or entity or entity acting on its or their behalf
has, directly or indirectly, within the past five (5) years, given or agreed to
give any gift or similar benefit to any customer, supplier, governmental
employee or other person or entity or entity that is or may be in a position to
help or hinder the business of Flexxtech Holdings or assist Flexxtech Holdings
in connection with any actual or proposed transaction which (i) might subject
Flexxtech Holdings to any damage or penalty in any civil, criminal or
governmental litigation or proceeding, or (ii) might have had a material adverse
effect on Flexxtech Holdings if not given in the past, or (iii) might materially
adversely affect the condition (financial or otherwise), business, assets,
liabilities, operations or prospects of Flexxtech Holdings, or which might
subject Flexxtech Holdings to suit or penalty in any private or governmental
litigation or proceeding if not continued in the future.
3.13 Broker's or Finder's Fees. Except as set forth in Schedule 2.25,
-------------------------
there is no investment banker, broker, finder or other intermediary which has
been retained by, or is authorized to act on behalf of Flexxtech Holdings who
might be entitled to any fee or commission from Flexxtech Holdings upon
consummation of the Combination Transaction.
3.14 Disclosure. Neither the Offering, this Agreement nor any certificate
----------
delivered in accordance with the terms hereof, or any document or statement in
writing which has been supplied by or on behalf of Flexxtech Holdings, or by any
of Flexxtech Holdings's directors, or officers, in connection with the
transactions contemplated hereby, contains any untrue statement of a material
fact, or omits any statement of a material fact necessary in order to make the
statements contained herein or therein not misleading. To the Best Knowledge of
Flexxtech Holdings, there is no fact or circumstance known to Flexxtech Holdings
which materially and adversely affects or which may materially and adversely
affect its business prospects, financial condition, or its assets, which has not
been set forth in this Agreement, or any certificates or statements furnished
in writing.
ARTICLE IV
MISCELLANEOUS
4.1 Fees and Expenses. Each party shall pay the fees and expenses of
-----------------
its advisers, counsel, accountants and other experts, if any, and all other
expense incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement.
4.2 Survival of Agreements. All covenants, agreements, representations
----------------------
and warranties made herein, and the indemnification provisions herein, shall
survive the execution and delivery of this Agreement, and all statements
contained in any certificate or other instrument delivered by Primavera and N.
Texas hereunder or thereunder or in connection herewith or therewith shall be
deemed to constitute representations and warranties made by Primavera and N.
Texas.
4.3 Parties in Interest. All representations, warranties, covenants and
-------------------
agreements contained in this Agreement shall be binding and inure to the benefit
of the respective successors and
16
assigns of the parties hereto whether so expressed or not.
4.4 Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing and shall be delivered in person or entity, by
overnight express mail or mailed by certified or registered mail, return receipt
requested, addressed as follows:
(a) If to Flexxtech Holdings:
Flexxtech Holdings
0000 X. Xxxxxxx Xxxx., Xxxxx 000-X
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
(b) If to Primavera Corporation or to North Texas Circuit Board
Company, Inc.:
Primavera Corporation / North Texas Circuit Board Company, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxxx, Xx.
With a copy to (which copy shall not constitute notice):
Primavera Corporation / North Texas Circuit Board Company, Inc.
Xxxx Xxxxxx Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
4.5 Governing Law; Jurisdiction. This Agreement shall be governed by and
---------------------------
construed in accordance with the internal laws of the State of Nevada, without
giving effect to its conflicts of laws provisions. Venue for any legal action
arising out of this Agreement shall be Los Angeles County, California.
4.6 Entire Agreement. This Agreement, including the Exhibits hereto,
----------------
constitutes the sole and entire agreement of the parties and supersedes all
prior agreements and understandings, oral and written, among the parties hereto
with respect to the subject matter hereof.
4.7 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.
4.8 Amendments. This Agreement may not be amended or modified, and no
----------
provisions hereof may be waived, without the written consent of Flexxtech
Holdings and Primavera.
4.9 Severability. If any provision of this Agreement shall be declared
------------
void or unenforceable by any judicial or administrative authority, the validity
of any other provision of this Agreement shall not be affected thereby.
4.10 Headings and Subheadings. The headings and subheadings used in this
------------------------
Agreement are for convenience only and are not to be considered in construing or
interpreting any term or provision of this Agreement.
4.11 Effectiveness; Binding Effect; Assignment. This Agreement shall be
-----------------------------------------
binding upon and inure to the benefit of Flexxtech Holdings and Primavera, and
their respective successors and
17
assigns.
4.12 Further Assurances. From and after the date of this Agreement, upon
------------------
the request of Flexxtech Holdings or Primavera, Flexxtech Holdings and Primavera
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm, carry out and to effectuate
fully the intent and purposes of this Agreement and the Purchase Agreement.
IN WITNESS WHEREOF, Flexxtech Holdings, Inc., Primavera Corporation, and
North Texas Circuit Board Company, Inc. have executed this Agreement as of this
day and year first written above.
FLEXXTECH HOLDINGS, INC.
_______________________________________
By: Xxxxx X. Xxxxxxxxxx
President and Chief Executive Officer
PRIMAVERA CORPORATION
/s/ Xxxxx Xxxxxxxxx
---------------------------------------
By: Xxxxxx Xxxxxxxxx, Xx.
President, Director, Shareholder
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
By: Xxxxxx X. Xxxxxx
Director, Shareholder
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
By: Xxxxxxx X. Xxxxxxx, III
Director, Shareholder
/s/ X.X. Xxxxx
---------------------------------------
By: X.X. Xxxxx III
Shareholder
NORTH TEXAS CIRCUIT BOARD COMPANY, INC.
/s/ Xxxxxxx Xxxxxx
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By: Xxxxxxx X. Xxxxxx
President, Director
/s/ Xxxxxxxx Xxxxxx
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By: Xxxxxxxx Xxxxxx
Director
/s/ Xxxxxx Xxxxxxxxx
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By: Xxxxxx Xxxxxxxxx, Xx.
Director
/s/ Xxxxxx X Xxxxxx
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By: Xxxxxx X. Xxxxxx
Director
18
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
By: Xxxxxxx X. Xxxxxxx, III
Director
19
EXHIBIT A
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PROMISSORY NOTE
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Principle Amount of Promissory Note: $1,000,000
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Pursuant to the August 15, 2000 Stock Purchase Agreement by and between
Flexxtech Holdings, Inc., a Nevada corporation ("Flexxtech Holdings" or
"Promisor"), Primavera Corporation, a Texas corporation ("Primavera"), and North
Texas Circuit Board Company, Inc., a Texas corporation ("N. Texas") FOR VALUE
RECEIVED, Flexxtech Holdings shall pay to Primavera the total amount of One
Million Dollars ($1,000,000), without interest, in consecutive Two Hundred
Thousand Dollar ($200,000) payments, payable on the Fifteenth (15/th/)) day of
each month beginning on September 15, 2000 until the amount is paid in full.
Flexxtech Holdings may prepay this Note without any early payment penalty.
This Note is secured by the shares of common stock of Primavera as described in
Article I, section 1.1 of the Stock Purchase Agreement.
Failure to make a payment when due shall be a default on the loan. Should a
default exist for more than fifteen (15) days, borrower agrees to pay the holder
of this note reasonable costs of collection including attorney fees and the
collateralized shares shall be released back to Primavera.
Date: _____________ Promisor: FLEXXTECH HOLDINGS, INC.
______________________
By: Xxxxx X. Xxxxxxxxxx
President and CEO
