Exhibit 10.(m)
SHARE EXCHANGE AGREEMENT
BY AND BETWEEN
ORION DIVERSIFIED TECHNOLOGIES, INC.
AND
OVALE, SA
DATED SEPTEMBER 15, 2004
Tables of Content
ARTICLE I EVENTS TO TAKE PLACE AT THE CLOSING 6
SECTION 1.1. Agreement to Exchange. Common Stock and Cancel Debt 6
SECTION 1.2. Closing 6
ARTICLE II REPRESENTATIONS AND WARRANTIES OF OVALE 7
SECTION 2.1. Corporate Organization 7
SECTION 2.2. Capitalization Of Ovale 7
SECTION 2.3. Subsidiaries and Equity Investments 8
SECTION 2.4. Authorization and Validity of Agreements 8
SECTION 2.5. No Conflict or Violation 8
SECTION 2.6. Consents and Approvals 8
SECTION 2.7. Financial Statements 8
SECTION 2.8. Absence of Certain Changes or Events 9
SECTION 2.9. Tax Matters 10
SECTION 2.10. Absence of Undisclosed Liabilities 10
SECTION 2.11. Interests in Real Property 11
SECTION 2.12. Personal Property 11
SECTION 2.13. Licenses, Permits and Governmental Approvals. 11
SECTION 2.14. Compliance with Law 11
SECTION 2.15. Litigation 11
SECTION 2.16. Contracts 12
SECTION 2.17. Employee Plans 13
SECTION 2.18. Insurance 13
SECTION 2.19. Environmental Matters 13
SECTION 2.20. Labor Matters 13
A. Except as set forth in Schedule 2.20 13
B. Except as set forth in Schedule 2.20 14
SECTION 2.21. Disclosure 14
SECTION 2.22. Survival 15
ARTICLE III REPRESENTATIONS AND WARRANTIES OF OVALE SHAREHOLDERS,
AND OF XXXXXX AS LENDER 15
SECTION 3.1. Authorization and Reliability of Agreement of the
Ovale Shareholders 15
SECTION 3.2. Free and Clear Ownership of Shares 15
SECTION 3.3. Authorization and Reliability of Agreement of Xxxxxx
as Lender 15
SECTION 3.4. Investment Understanding and Representation by Orion 15
SECTION 3.5. Investment Representations Regarding the Orion Shares,
Legending and Stop Orders 16
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ORION 16
SECTION 4.1. Corporate Organization, Books and Records 16
SECTION 4.2. Capitalization of Orion; Title to the Shares 17
A. Capitalization and Planned Capitalization 17
B. Free Trading and Other Securities 17
SECTION 4.3. Subsidiaries 18
SECTION 4.4. Authorization and Validity of Agreements 18
SECTION 4.5. No Conflict or Violation 18
SECTION 4.6. Consents and Approvals 18
SECTION 4.7. Financial Statements 19
A. Audited Financial Statements 19
B. Unaudited Financial Statements 19
SECTION 4.8. Absence of Certain Changes or Events 19
SECTION 4.9. Tax Matters 20
SECTION 4.10. Absence of Undisclosed Liabilities 20
SECTION 4.11. Interests in Real Property 21
SECTION 4.12. Personal Property 21
SECTION 4.13. Licenses, Permits and Governmental Approvals 21
SECTION 4.14. Compliance with Law 21
SECTION 4.15. Litigation 21
SECTION 4.16. Contracts 22
SECTION 4.17. Employee Plans 23
SECTION 4.18. Insurance 23
SECTION 4.19. Environmental Matters 23
SECTION 4.20. Labor Matters 23
A. Orion is not a party to 23
B. Except as set forth in Schedule 4.19 24
SECTION 4.21. Investment Intent 24
SECTION 4.22. SEC Filings 24
SECTION 4.23. Disclosure 25
SECTION 4.24. Survival 25
ARTICLE V MUTUAL PRE-CLOSING COVENANTS 25
SECTION 5.1. Certain Changes and Conduct of Business 25
SECTION 5.2. Access to Properties and Records 27
SECTION 5.3. Negotiations 27
SECTION 5.4. Consents and Approvals 28
SECTION 5.5. Public Announcement 28
SECTION 5.6. Original Issuance 28
ARTICLE VI CONDITIONS TO OBLIGATIONS OF ORION 28
SECTION 6.1. Representations and Warranties of Ovale 28
SECTION 6.2. Agreements and Covenants 28
SECTION 6.3. Consents And Approvals 29
SECTION 6.4. No Violation of Orders 29
SECTION 6.5. Good standing and Other Certificates 29
SECTION 6.6. Other Closing Documents 30
ARTICLE VII CONDITIONS TO OBLIGATIONS OF OVALE 30
SECTION 7.1. Representations and Warranties of Orion 30
SECTION 7.2. Agreements and Covenants 30
SECTION 7.3. Consents and Approvals 30
SECTION 7.4. No Violation of Orders 30
SECTION 7.5. Good Standing and Other Certificates 31
SECTION 7.6. Other Closing Documents 31
SECTION 7.7. Corporate Matters 31
ARTICLE VIII TERMINATION AND ABANDONMENT 32
SECTION 8.1. Methods of Termination 32
SECTION 8.2. Procedure Upon Termination 33
ARTICLE IX POST-CLOSING AGREEMENTS 33
SECTION 9.1. Consistency in Reporting 33
ARTICLE X MISCELLANEOUS PROVISIONS 33
SECTION 10.1. Survival of Provisions 33
SECTION 10.2. Publicity 34
SECTION 10.3. Successors and Assigns; No Third-Party Beneficiaries 34
SECTION 10.4. Finders 34
SECTION 10.5. Fees and Expenses 34
SECTION 10.6. Notices 34
SECTION 10.7. Entire Agreement 35
SECTION 10.8. Severability 35
SECTION 10.9. Titles and Headings 36
SECTION 10.10. Counterparts 36
SECTION 10.11. Convenience of Forum; Consent to Jurisdiction 36
SECTION 10.12. Enforcement of The Agreement 36
SECTION 10.13. Governing Law 36
SECTION 10.14. Schedules 36
THIS SHARE EXCHANGE AGREEMENT, (the "Agreement") made this 15th day of
September, 2004, by and between
1) Orion Diversified Technologies, Inc. a New Jersey corporation with
an office at 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000 ("Orion"),
2) Ovale, S.A., a Swiss societe anonyme with its principal office at 36
Boulevard, Helvetique XX-0000 Xxxxxx, Xxxxxxxxxxx ("Ovale"),
3) The individual holders of all 100 outstanding Class A shares of
Ovale's common stock, 1,000 CHF (i.e., Swiss Francs) par value and the
individual holders of all 150 outstanding Class B shares of Ovale's
common stock, 5,000 CHF par value (the "Ovale Shares") (the "Ovale
Shareholders"), and
4) Xxxxxxxx Xxxxxx, a Lender, with his principal place of business at
36 Boulevard, Helvetique XX-0000 Xxxxxx, Xxxxxxxxxxx ("Xxxxxx").
Orion, Ovale, the Ovale Shareholders, and Xxxxxx are sometimes
hereinafter individually referred to as a "Party" and collectively as
the "Parties."
A. WHEREAS, Ovale is a Societe Anonyme, organized under the laws of
Switzerland, the shares of which are privately held, and all of its
beneficial shareholders are listed on Exhibit 1 hereto;
B. WHEREAS, Orion is a corporation organized under the laws of the State
of New Jersey with a class of securities registered with the Securities
and Exchange Commission ("SEC") pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
C. WHEREAS on May 9, 2003 Orion, Ovale, and the Ovale Shareholders
entered into an agreement which was intended to carry out the same
transaction as this Agreement, and that agreement has been amended from
time to time;
D. WHEREAS in June, 2003, certain Class A Shareholders of Ovale ("June
Borrowers") borrowed CHF 50,000 from Orion;
E. WHEREAS since May 9, 2003, Xxxxxx, as a lender to Ovale, has arranged
for a loan to be made to Ovale for a maximum of 700,000 Euros(the
"Xxxxxx-Ovale Loan");
F. WHEREAS Xxxxxx and Ovale have agreed that Xxxxxx will accept shares
of Orion at the ratio of 1.667 Orion shares for each Euro lent to Ovale
by Orion as of the time of the closing as payment of the Xxxxxx-Ovale
Loan;
G. WHEREAS the parties desire to amend and restate their prior agreements
in the form of this Agreement so that it replaces all prior agreements
between them;
H. WHEREAS, the respective board of directors of Orion and Ovale have
approved the exchange of the Ovale Shares and the Xxxxxx-Ovale Loan in
consideration for a maximum of
11,775,000 shares of Orion's Common Stock, $.01 par value per share (the
"Orion Shares"), and the payment of 50,000 CHF to the holders of
Ovale's Class A shares in the form of the forgiveness of the outstanding
sum payable pursuant to the terms of this Agreement (the "Share
Exchange"), all with the intent that immediately following the Share
Exchange, the Ovale Shareholders shall hold a maximum of 75% of the
outstanding shares of Orion's common stock and Ovale shall be a wholly
owned subsidiary of Orion; and
I. WHEREAS, the Share Exchange is not intended to qualify as a tax free
reorganization under the U.S. Internal Revenue Code of 1986, as amended
(the "Code").
NOW, THEREFORE, in consideration of the mutual terms, conditions and
other agreements set forth herein, the Parties hereby agree as follows:
ARTICLE I EVENTS TO TAKE PLACE AT THE CLOSING.
SECTION 1.1. Agreement to Exchange. Common Stock and Cancel Debt.
On the Closing Date (as that term is hereinafter defined) and upon the
terms and subject to the conditions set forth in this Agreement,
1) the Ovale Shareholders shall sell, assign, transfer, convey and
deliver all the Ovale Shares (and the certificates representing them)
to Orion; and Orion shall accept the Ovale Shares in exchange for
10,608,100 newly issued Orion Shares delivered to the Ovale
Shareholders on a pro rata basis;
2) the June Borrowers shall accept, and Orion shall pay to them,
CHF50,000 as additional payment for their Class A Ovale shares; and
the debt of the June Borrowers to Orion shall thus be extinguished;
3) Xxxxxx, as Lender, shall assign the Xxxxxx-Ovale Loan to Orion, and
Orion shall issue to Xxxxxx, up to 1,166,900 Orion Shares at the ratio
of 1.667 Orion Share per Euro of the Xxxxxx-Ovale Loan outstanding for
the assignment of the Xxxxxx-Ovale loan;
4) As a result of the transactions set forth in this section 1.1 there
shall be issued and outstanding 15,836,532 Orion Shares of which the
Ovale Shareholders, and Xxxxxx (as Lender) shall own of record
11,775,000 Orion Shares. (The 11,775,000 shares does not include
Orion shares owned by Ovale shareholders prior to the execution of
this Agreement.)
SECTION 1.2. Closing.
The closing of the Share Exchange (the "Closing") shall take place at
10:00 a.m. E.S.T. on the second business day after the conditions to
closing set forth in Articles VI and VII have been
satisfied or waived, or at such other time and date as the parties hereto
shall agree in writing (the "Closing Date"), at the principal offices of
Orion's counsel at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx. At
the Closing, the Parties shall carry out the transactions set out in
Section 1.1, and the Ovale Shareholders shall deliver to Orion the stock
certificates representing the Ovale Shares. The Ovale Shares delivered
to Orion shall be represented by certificates duly endorsed in blank with
Medallion signatures guaranteed, for transfer or accompanied by
appropriate stock powers similarly executed, and Orion shall deliver duly
issued share certificates issued in the names designated by Ovale.
ARTICLE II REPRESENTATIONS AND WARRANTIES OF OVALE
Ovale hereby represents and warrants to and agrees with Orion as follows:
SECTION 2.1. Corporate Organization.
Ovale is a societe anonyme duly organized on October 17, 2002, validly
existing and in good standing under the laws of the Confederation of
Switzerland, and has all requisite corporate power and authority to own
its properties and assets and to conduct its business as now conducted
and is duly qualified to do business and in good standing in each
jurisdiction where the nature of the business conducted or the ownership
or leasing of its properties makes such qualification and being in good
standing necessary, except where the failure to be so qualified and in
good standing will not have a material adverse effect on the business,
operations, properties, assets, condition or results of operation of
Ovale (an "Ovale Material Adverse Effect");
Copies of the Articles of Incorporation and By-laws of Ovale, with all
amendments thereto to the date hereof, have been furnished to Orion, and
such copies (attached hereto as Schedule 2.1) are accurate and complete
as of the date hereof. The minute books of Ovale are current as required
by law, contain the minutes of all meetings of the Board of Directors
from date of incorporation to this date, and adequately reflect all
material actions taken by the Board of Directors of Ovale and copies
thereof shall be delivered to Orion prior to the Closing Date including
the corporate action referenced in Section 2.4.
SECTION 2.2. Capitalization Of Ovale.
The authorized capital stock of Ovale consists of 100 Class A shares of
common stock, 1,000 CHF par value per share, of which 100 shares are
issued and outstanding and 150 Class B shares of common stock, 5,000 CHF
(i.e., Swiss Francs) par value per share, of which 150 shares are issued
and outstanding, a total share capital of 850,000 CHF. All of the shares
of capital stock have been duly authorized and validly issued, and are
fully paid and non-assessable and no personal liability attaches to the
ownership thereof. The Ovale Shares represent 100% of the outstanding
shares of capital stock of Ovale, and there are no options, warrants,
agreements,
commitments, conversion rights, preemptive rights or other rights to
subscribe for, purchase or otherwise acquire any of the shares of capital
stock or any unissued or treasury shares of capital stock of Ovale
outstanding. All the beneficial holders of the Ovale Shares are listed
on Exhibit 1.
SECTION 2.3. Subsidiaries and Equity Investments.
Ovale has no subsidiaries or equity interest in any corporation,
partnership, joint venture, or other entity except for those set forth
in Schedule 2.3.
SECTION 2.4. Authorization and Validity of Agreements.
Ovale has all corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by Ovale and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action and
no other corporate proceedings on the part of Ovale are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby.
SECTION 2.5. No Conflict or Violation.
The execution, delivery and performance of this Agreement by Ovale does
not and will not violate or conflict with any provision of the Articles
of Incorporation or By-laws of Ovale, and does not and will not violate
any provision of law, or any order, judgment or decree of any court or
other governmental or regulatory authority, nor violate or result in a
breach of or constitute (with due notice or lapse of time or both) a
default under, or give to any other entity any right of termination,
amendment, acceleration or cancellation, of any contract, lease, loan
agreement, mortgage, security agreement, trust indenture or other
agreement or instrument to which Ovale is a party or by which it is
bound or to which any of its properties or assets is subject, nor result
in the creation or imposition of any lien, charge or encumbrance of any
kind whatsoever upon any of the properties or assets of Ovale, nor result
in the cancellation, modification, revocation or suspension of any of
the licenses, franchises, permits to which Ovale is bound.
SECTION 2.6. Consents and Approvals.
No consent, waiver, authorization or approval of any governmental or
regulatory authority, domestic or foreign, or of any other person, firm
or corporation is required, and each declaration to or filing or
registration with any such governmental or regulatory authority, that is
required in connection with the execution and delivery of this Agreement
or the performance by Ovale of its or their obligations hereunder has
been done.
SECTION 2.7. Financial Statements.
1) As a condition precedent to Closing, Ovale shall furnish to Orion
audited financial
statements for the period from inception through its fiscal year end,
December 31st, 2003; (such financial statements being hereinafter
referred to as the "Ovale Audited Financial Statements"). The Ovale
Audited Financial Statements, including the notes thereto, (i) were
prepared in accordance with generally accepted accounting principles,
(ii) present fairly, in all material aspects, the financial position,
results of operations and changes in financial position of Ovale, as of
such date and for the periods then ended, (iii) are complete, correct
and in accordance with the books of account and records of Ovale, (iv)
are reconciled with the financial statements and the financial records
maintained and the accounting methods applied by Ovale for federal
income tax purposes, (v) and contain all entries recommended by Ovale's
independent certified public accountants.
2) Ovale shall furnish Orion with such unaudited interim financial
statements as shall be required to comply with the applicable rules of
the SEC necessary to consummate this transaction (the "Ovale Unaudited
Financial Statements"). The Ovale Unaudited Financial Statements shall
reflect all adjustments that are, in the opinion of its management,
necessary to a fair statement of the results for the interim periods
presented. The Ovale Audited Financial Statements and the Ovale
Unaudited Financial Statements are hereinafter collected referred to as
the "Ovale Financial Statements".
SECTION 2.8. Absence of Certain Changes or Events.
Since December 31st, 2003, and except as set forth on Schedule 2.8:
1) Ovale has operated in the ordinary course of business consistent with
past practice and there has not been any material adverse change in the
assets, properties, business, operations, prospects, net income or
conditions financial or otherwise of Ovale. Ovale does not know or have
reason to know of any event, condition, circumstance or prospective
development which threatens or may threaten to have a material adverse
effect on the assets, properties, operations, prospects, net income or
financial condition of Ovale;
2) There has not been any substantive change in any method of accounting
or accounting practice of Ovale;
3) There has not been any declarations, setting aside or payment of
dividends or distributions with respect to shares of Ovale or any
redemption, purchase or other acquisition of any of Ovale's securities
by Ovale; and
4) There has not been a material increase in the compensation payable or
to become payable to any director or officer of Ovale.
SECTION 2.9. Tax Matters.
1) All tax returns, reports, or information returns or other documents
(including any related or supporting information) required to be filed
before the Closing in respect of Ovale have been filed, and Ovale has
paid, accrued or otherwise adequately reserved for the payment of all
Taxes (as that term is hereinafter defined) required to be paid in
respect of the periods covered by such returns and has adequately
reserved for the payment of all Taxes with respect to periods ended on
or before the Closing for which tax returns have not yet been filed.
Copies of such returns shall be furnished to Orion prior to the Closing
Date. All Taxes of Ovale have been paid or adequately provided for and
Ovale knows of no proposed additional tax assessment against Ovale not
adequately provided for in the Ovale Financial Statements. No deficiency
for any Taxes has been asserted or assessed by a taxing authority against
Ovale; there is no outstanding audit examination, deficiency or refund
litigation with respect to any Taxes of Ovale. In the ordinary course,
Ovale makes adequate provision on its books for the payment of Taxes
(including for the current fiscal period) owed by Ovale. Ovale has not
executed an extension or waiver of any statute of limitations on the
assessment or collection of Tax that is currently in effect.
2) "Taxes" shall, for purposes of this Agreement, mean all taxes however
denominated, including any interest, penalties or addition to tax that
may become payable in respect thereof, imposed by any governmental body
which taxes shall include, without limiting the generality of the
foregoing, all income taxes, payroll and employee withholding taxes,
unemployment insurance, social security, sales and use taxes, excise
taxes, franchise taxes, receipts taxes, occupations taxes, real and
personal property taxes, stamp taxes, transfer taxes, xxxxxxx'x
compensation taxes and any other obligation of the same or a similar
nature.
SECTION 2.10. Absence of Undisclosed Liabilities.
1) Ovale has no indebtedness or liability, absolute or contingent, known
or unknown, which is not shown or provided for on the balance sheet of
Ovale included in the Financial Statements other than liabilities i
ncurred or accrued in the ordinary course of business since the date of
the last financial statements (annual or quarterly) furnished to Orion.
2) Financial Statements. Except as shown in such balance sheets or in
the notes to the Ovale Financial Statements, Ovale is not directly or
indirectly liable upon, or with respect to (by discount, repurchase
agreements or otherwise), or obligated in any other way to provide funds
in respect of, or to guarantee or assume, any debt, obligation or
dividend of any person, except for debts undertaken in the ordinary
course of its business, none of which will have a material adverse effect
upon Ovale.
SECTION 2.11. Interests in Real Property.
Ovale does not own any item of or interest in real property, but leases
the property shown on Schedule 2.11.
SECTION 2.12. Personal Property.
Ovale owns all personal property ("Personal Property") purported to be
owned by it as of the date hereof, in each case free and clear of all
Liens, except for those Liens described in Schedule 2.12. All of the
Personal Property owned or leased by, and commonly used or necessary for
or in the operations of Ovale: (i) is in such operating condition or
repair as may be necessary to carry on the business of Ovale as it is
now being conducted, subject only to ordinary wear and tear; and (ii) is
sufficient, in the aggregate, to carry on the ordinary course of
business of Ovale.
SECTION 2.13. Licenses, Permits and Governmental Approvals.
Except as set forth on Schedule 2.13, there are no licenses, permits,
franchises, authorizations and approvals issued or granted to Ovale by
any national, federal, state or local government, or any department,
agency, board, commission, bureau or instrumentality of any of the
foregoing (the "Licenses and Permits"). (Schedule 2.13 need not list
vehicle registrations, occupancy licenses, if any, export/import
licenses, etc. the absence of which would not have a material adverse
effect upon its business.)
SECTION 2.14. Compliance with Law.
The operations of Ovale have been conducted in accordance with all
applicable laws, regulations, orders and other requirements of all
courts and other governmental or regulatory authorities having
jurisdiction over Ovale and its assets, properties and operations,
including, without limitation, all such laws, regulations, orders and
requirements promulgated by or relating to consumer protection, equal
opportunity, health, environmental protection, architectural barriers to
the handicapped, fire, zoning and building and occupation safety except
where such non-compliance would not have a Ovale Material Adverse Effect.
Ovale has not received notice of any violation of any such law,
regulation, order or other legal requirement, and is not in default with
respect to any order, writ, judgment, award, injunction or decree of any
national, state or local court or governmental or regulatory authority
or arbitrator, domestic or foreign, applicable to Ovale or any of its
assets, properties or operations.
SECTION 2.15. Litigation.
There are no claims, actions, suits, proceedings, labor disputes or
investigations pending or, to the best of the Ovale's knowledge,
threatened before any federal, state or local court or governmental or
regulatory authority, domestic or foreign, or before any arbitrator of
any nature, brought by or against Ovale or any of its officers,
directors, employees, agents or affiliates
involving, affecting or relating to any assets, properties or operations
of Ovale or the transactions contemplated by this Agreement, nor is any
basis known to it for any such action, suit, proceeding or investigation.
Schedule 2.15 sets forth a list and a summary description of all such
pending actions, suits, proceedings, disputes or investigations. Neither
Ovale nor any of its assets or properties is subject to any order, writ,
judgment, award, injunction or decree of any country, judicial, state or
local court or governmental or regulatory authority or arbitrator, that
would have a Ovale Material Adverse Effect on its assets, properties,
operations, prospects, net income or financial condition or which would
or might interfere with the transactions contemplated by this Agreement.
SECTION 2.16. Contracts.
Schedule 2.16 sets forth a true and complete list of all material
contracts, agreements and other instruments to which Ovale is a party or
otherwise relating to or affecting any of its assets, properties or
operations, including, without limitation, all written or oral, express
or implied, material
1) contracts, agreements and commitments not made in the ordinary course
of business;
2) purchase and supply contracts with a value in excess of $25,000;
3) contracts, loan agreements, repurchase agreements, mortgages, security
agreements, trust indentures, promissory notes and other documents or
arrangements relating to the borrowing of money or for lines of
credit;
4) leases and subleases of real or personal property;
5) agreements and other arrangements for the sale of any assets other
than in the ordinary course of business or for the grant of any
options or preferential rights to purchase any assets, property or
rights;
6) contracts or commitments limiting or restraining Ovale from engaging
or competing in any lines of business or with any person, firm, or
corporation;
7) partnership and joint venture agreements; and
8) all amendments, modifications, extensions or renewals of any of the
foregoing. (The foregoing contracts, agreements and documents are
hereinafter referred to collectively as the "Commitments" and
individually as a "Commitment"). Each Commitment is valid, binding and
enforceable against the parties thereto in accordance with its terms,
and in full force and effect on the date hereof. Ovale has performed
all obligations required to be performed by it to date hereunder, and
is not in default in respect of any Commitment, and to Ovale's best
knowledge no event has occurred which, with due notice or lapse of
time or both, would constitute such a default. To the best of Ovale's
knowledge and belief, no other party to any Commitment is in default
in respect thereof, and no event has occurred which, with due notice
or lapse of time or both,
would constitute such a default.
SECTION 2.17. Employee Plans.
Ovale maintains no pension, savings, stock option, retirement, severance,
health, insurance or other employee benefit plan (collectively referred
to herein as the "Plans") nor has any obligation to contribute to such
Plans other than required by the laws of the jurisdiction in which Ovale
is active.
SECTION 2.18. Insurance.
Schedule 2.18 lists the insurance and the aggregate coverage amount and
type and generally applicable deductibles of all policies of title,
liability, fire, casualty, business interruption, workers' compensation,
disability and other forms of insurance insuring the properties, assets
and operations of the business of Ovale. Except as set forth in Schedule
2.18, all such policies and bonds are in full force and effect,
underwritten by financially sound and reputable insurers (to Ovale's best
knowledge) and sufficient for all applicable requirements of law and will
not in any way be affected by or terminated or lapsed by reason of the
consummation of the transactions contemplated by this Agreement. Ovale
is not in material default under any provisions of any such policy of
insurance and has not received notice of cancellation of any such
insurance. Except as set forth in Schedule 2.18, there is no claim by
Ovale pending under any of such policies or bonds as to which coverage
has been questioned, denied or disputed by the underwriters of such
policies or bonds.
SECTION 2.19. Environmental Matters.
No licenses, permits or other authorizations are required under
applicable laws, regulations and other requirements of governmental or
regulatory authorities relating to pollution or to the protection of the
environment ("Environmental Laws") and Ovale is in compliance with all
Environmental Laws and with all such licenses, permits and authorizations
except where the failure to comply would not have a Ovale Material
Adverse Effect. Ovale has not performed or suffered any act which could
give rise to, or has otherwise incurred liability to any person
(governmental or otherwise) under any Environmental Laws, nor has Ovale
received notice of any such liability or any claim therefore.
SECTION 2.20. Labor Matters.
A. Except as set forth in Schedule 2.20:
1) Ovale is not a party to any outstanding employment agreements or
contracts with officers or employees that are not terminable at will,
or that provide for the payment of any bonus or commission;
2) Ovale is not a party to any agreement, policy or practice that
requires it to pay
termination or severance pay to salaried, non-exempt or hourly
employees (other than as required by law);
3) Ovale is not a party to any collective bargaining agreement or other
labor union contract applicable to persons employed by Ovale nor does
Ovale know of any activities or proceedings of any labor union to
organize any such employees. Ovale has not breached or otherwise
failed to comply with any provisions of any employment or labor
agreement, and there are no grievances outstanding thereunder.
B. Except as set forth in Schedule 2.20:
1) Ovale is in compliance in all material respects with all applicable
laws relating to employment and employment practices, wages, hours,
and terms and conditions of employment;
2) there is no unfair labor practice charge or complaint pending;
3) there is no labor strike, material slowdown or material work stoppage
or lockout actually pending or, to Ovale's best knowledge, threatened
against or affecting Ovale, and Ovale has not experienced any strike,
material slowdown or material work stoppage, lockout or other
collective labor action by or with respect to employees of Ovale since
the date of its last Financial Statement;
4) there is no question concerning union representation or negotiations
of terms of employment and no union represents any Ovale employees.
5) there are no charges with respect to or relating to Ovale pending
before the U.S. Equal Employment Opportunity Commission or any state,
local or foreign agency responsible for the prevention of unlawful
employment practices; and
6) Ovale has received no formal notice from any federal, state, local or
foreign agency responsible for the enforcement of labor or employment
laws of an intention to conduct an investigation of Ovale and no such
investigation is in progress.
SECTION 2.21. Disclosure.
This Agreement, the schedules hereto and any certificate attached hereto
or delivered in accordance with the terms hereby or on behalf of Ovale
in connection with the transactions contemplated by this Agreement,
individually and when taken together, do not contain any untrue statement
of a material fact or omit any material fact necessary in order to make
the statements contained herein and/or therein not misleading.
SECTION 2.22. Survival.
Each of the representations and warranties set forth in this Article II
shall be deemed represented and made by Ovale at the Closing as if made
at such time and shall survive the Closing for a period terminating on
the first anniversary thereof.
ARTICLE III REPRESENTATIONS AND WARRANTIES OF OVALE SHAREHOLDERS, AND
OF XXXXXX AS LENDER
The Ovale Shareholders, and Xxxxxx as Lender severally (except as
expressly stated otherwise) , represents and warrants to and agrees with
Orion as follows:
SECTION 3.1. Authorization and Reliability of Agreement of the Ovale
Shareholders.
The Ovale Shareholders, have the power to enter into this Agreement and
to carry out their obligations hereunder. This Agreement has been duly
executed by the Ovale Shareholders, or their authorized representative,
and constitutes the valid and binding obligation of the Ovale
Shareholders and is enforceable against the Ovale Shareholders in
accordance with its terms.
SECTION 3.2. Free and Clear Ownership of Shares
Each Ovale Shareholder owns his Ovale Shares free and clear of any and
all liens, claims or encumbrances of any nature or description. Each
Ovale Shareholder severally represents that he is the sole record and
beneficial owner of the Ovale Shares set forth opposite such holder's
name on Schedule 3.1 hereto, that he has the sole and undisputed power,
right and authority to sell, transfer, option, pledge or hypothecate the
same; and owns his Ovale Shares free and clear of any and all liens,
suits, proceedings, claims and encumbrances of any kind, nature or
description whether accrued, absolute, contingent or otherwise. To the
best knowledge and belief of each holder, the Ovale Shares held by him
are duly and validly issues, fully paid and non-assessable, and
represent, respectively, the only issued and outstanding voting
securities of Ovale in which he has any interest.
SECTION 3.3. Authorization and Reliability of Agreement of Xxxxxx as
Lender.
Xxxxxx, as Lender, has the power to enter into this Agreement and to
carry out his obligations hereunder. This Agreement has been duly
executed by him, and constitutes his valid and binding obligation as
Lender, and is enforceable against him as Lender in accordance with its
terms.
SECTION 3.4. Investment Understanding and Representation by Orion.
Each of the Ovale Shareholders and Xxxxxx as Lender has been advised, and
by their respective execution of this Agreement, hereby agrees, accepts
and acknowledges that none of the Orion Shares to be exchanges and
delivered hereunder shall have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and that in originally
issuing the Orion Shares to each of them, Orion will be relying upon an
exemption from registration based upon the investment and other
representations of each of them.
SECTION 3.5. Investment Representations Regarding the Orion Shares,
Legending and Stop Orders.
Each of the Ovale Shareholders, and Xxxxxx, as Lender, is acquiring the
Orion Shares for their own respective accounts and each has no present
arrangement or agreement for the sale, pledge or hypothecation of the
Orion Shares to any person or firm and each has acknowledged that they
are acquiring the Orion Shares in good faith for the purposes of
investment, that the Orion Shares have not been registered under the
Securities Act, and that each has have agreed to the placement of the
following restrictive legend on the certificates representing the Orion
Shares.
"The Shares represented by this certificate have not been registered
under the Securities Act of 1933 as amended. They may not be sold,
assigned or transferred in the absence of an effective registration
statement for the Shares under the said Securities Act, receipt of a
'no action' letter from the Securities and Exchange Commission or an
opinion of counsel satisfactory to the Corporation that registration
is not required under said Securities Act."
Each has further agreed that the Orion Shares will be the subject of
standard stop transfer order on the books and records of Bench's transfer
agent.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ORION
Orion represents and warrants to and agrees with Ovale and the Ovale
Shareholders as follows:
SECTION 4.1. Corporate Organization, Books and Records.
1) Orion is a corporation duly organized, validly existing and in good
standing under the laws of the State of New Jersey, and has all
requisite corporate power and authority to own its properties and assets
and to conduct its business as now conducted and is duly qualified to do
business in good standing in each jurisdiction where the nature of the
business conducted by Orion or the ownership or leasing of its properties
makes such qualification and being in good standing necessary, except
where the failure to be so qualified and in good standing will not have a
material adverse effect on the business, operations, properties, assets,
condition or results of operation of Orion (an "Orion Material Adverse
Effect").
2) Copies of the Articles of Incorporation and By-laws of Orion, with all
amendments thereto to the date hereof, have been furnished to Ovale, and
such copies (annexed hereto as Schedule 4.1) are accurate and complete as
of the date hereof. The minute books of Orion are current as required by
law, contain the minutes of all meetings of the Board of Directors,
committees of the Board of Directors from the date of incorporation to
this date, and adequately
reflect all material actions taken by the Board of Directors and
committees of the Board of Directors of Orion.
3) The minute books of Orion, all the contents of which have been
previously made available to Ovale and its representatives, contain
accurate records of all meetings of, and corporate action taken by
(including action taken by written consent), the shareholders and Board
of Directors of Orion. Orion does not have any of its respective
records, systems, controls, data or information recorded, stored,
maintained, operated or otherwise wholly or partly dependent upon or
held by any means (including any electronic, mechanical or photographic
process, whether computerized or not) which (including all means of
access thereto and therefrom) are not under the exclusive ownership and
direct control of Orion.
SECTION 4.2. Capitalization of Orion; Title to the Shares.
A. Capitalization and Planned Capitalization
The authorized capital stock of Orion consists of (a) 10,000,000 shares
of common stock, par value $.01 per share, of which 4,061,532 shares are
issued and outstanding and no shares are reserved for issuance (the
"Orion Shares"). All of the outstanding Orion Shares have been duly
authorized and validly issued, and are fully paid and non-assessable and
free of preemptive or similar rights and no personal liability attaches
to the ownership thereof. As of the date of Closing, the Board of
Directors and a majority of the shareholders of Orion shall have duly
authorized an amendment of Orion's Certificate of Incorporation so as to
approve: (i) an increase in its authorized shares of Common Stock to
22,000,000 shares; (ii) the creation of a class of authorized shares of
Preferred Stock in the amount of 2,000,000 shares; and (iii) the change
in the name of Orion to Ovale Holdings Corporation. Said amendment to
the Certificate of Incorporation shall have been duly and properly filed
by the date of Closing. The Orion Shares are the sole outstanding
shares of capital stock of Orion, and there are no outstanding options,
warrants, agreements, commitments, conversion rights, preemptive rights
or other rights to subscribe for, purchase or otherwise acquire any of
the shares of capital stock or any unissued or treasury shares of capital
stock of Orion.
B. Free Trading and Other Securities.
Except as set forth on Schedule 4.2B, all the issued and outstanding
shares of Orion are freely tradeable in compliance with the Securities
Act. Schedule 4.2, certified by Orion's transfer agent, lists all the
holders of record, and persons known to hold shares beneficially, who
hold shares issued in private placements or otherwise pursuant to
exemptions from registration under the Securities Act which are not free
trading shares. All such shares are the subject of standard stop
transfer order on the books and records of Orion's transfer agent.
SECTION 4.3. Subsidiaries.
Orion has no subsidiaries and no investments, directly or indirectly, or
the financial interest in any other corporation or business organization,
join venture, or partnership of any kind whatsoever.
SECTION 4.4. Authorization and Validity of Agreements.
Orion has all corporate power and authority to execute and deliver this
Agreement, to execute all attendant documents and instruments necessary
to consummate the transaction herein contemplated, and to exchange the
Orion Shares with the Ovale Shareholders, and to otherwise perform its
obligations hereunder and to consummate all the transactions contemplated
hereby. All of the Orion Shares to be issued pursuant to this Agreement,
when issued and delivered as provided herein, shall be duly authorized,
validly issued and non-assessable and free of preemptive or similar
rights. The execution and delivery of this Agreement by Orion and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and no other corporate
proceedings on the part of Orion are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
SECTION 4.5. No Conflict or Violation.
Except as otherwise set forth on Schedule 4.4, the execution, delivery
and performance of this Agreement by Orion does not and will not violate
or conflict with any provision of the Articles of Incorporation or
By-Laws of Orion, and does not and will not violate any provision of law,
or any order, judgment or decree of any court or other governmental or
regulatory authority, nor violate nor will result in a breach of or
constitute (with due notice or lapse of time or both) a default under or
give to any other entity any right of termination, amendment,
acceleration or cancellation of any contract, lease, loan agreement,
mortgage, security agreement, trust indenture or other agreement or
instrument to which Orion is a party or by which it is bound or to which
any of its respective properties or assets is subject, nor will result
in the creation or imposition of any lien, charge or encumbrance of any
kind whatsoever upon any of the properties or assets of Orion, nor will
result in the cancellation, modification, revocation or suspension of
any of the licenses, franchises, permits to which Orion is bound.
SECTION 4.6. Consents and Approvals.
Schedule 4.5 sets forth a true and complete list of each consent, waiver,
authorization or approval of any governmental or regulatory authority,
domestic or foreign, or of any other person, firm or corporation, and
each declaration to or filing or registration with any such governmental
or regulatory authority, that is required in connection with the
execution and delivery of this Agreement by Orion or the performance by
Orion of its obligations hereunder.
SECTION 4.7. Financial Statements.
A. Audited Financial Statements.
Orion has heretofore furnished to Ovale audited financial statements as
of and for the two fiscal years ended on April 30, 2004, accompanied by
the report thereon of Orion's Independent Certified Public Accountants,
(the "Orion Audited Financial Statements"). The Orion Audited Financial
Statements, including the notes thereto: (i) were prepared in accordance
with generally accepted accounting principles; (ii) present fairly, in
all material respects, the financial position, results of operations and
changes in financial position of Orion as of such dates and for the
periods then ended; (iii) are complete, correct and in accordance with
the books of account and records of Orion: (iv) are reconciled with the
financial statements and the financial records maintained and the
accounting methods applied by Orion for federal income tax purposes, and
(v) contain all entries recommended by Orion's Accountants.
B. Unaudited Financial Statements.
Orion has heretofore furnished to Ovale unaudited financial statements
as of and for the nine months ended January 31, 2004, accompanied by the
report thereon of Orion's Independent Certified Public Accountants As a
condition precedent to the Closing. Orion will furnish to Ovale audited
financial statements for its fiscal year ended April 30, 2004,
accompanied by the report thereon of Orion's Independent Certified
Public Accountants and will also furnish Ovale with any subsequently
dated unaudited financial statements which Orion is required to file
with the SEC in order to maintain its reporting status (Orion unaudited
financial statements are referred to herein as the "Orion Unaudited
Financial Statements" Orion Audited Financial Statements are referred to
herein as the "Orion Audited Financial Statements" and together they are
referred to as the "Orion Financial Statements"). The Orion Audited
Financial Statements, including the notes thereto, (i) were prepared in
accordance with generally accepted accounting principles, (ii) present
fairly, in all material respects, the financial position, results of
operations and changes in financial position of Orion as of such dates
and for the periods then ended, (iii) are complete, correct and in
accordance with the books of account and records of Orion, (iv) are
reconciled with the financial statements and the financial records
maintained and the accounting methods applied by Orion for federal
income tax purposes, and (v) contain all entries recommended by Orion's
Accountants.
SECTION 4.8. Absence of Certain Changes or Events.
Since April 30, 2004 and except (i) as contemplated by this Agreement,
or (ii) set forth in the periodic reports filed by Orion with the SEC
under the Exchange Act (the "Orion Public Reports") or (iii) as set forth
on Schedule 4.7:
1) Orion has operated in the ordinary course of business consistent with
past practice and there has not been any material adverse change in the
assets, properties, business, operations,
prospects, net income or conditions financial or otherwise of Orion.
Orion does not know or has reason to know of any event, condition,
circumstance or prospective development which threatens or may threaten
to have a material adverse effect on the assets, properties, operations,
prospects, net income or financial condition of Orion;
2) There has not been any substantive change in any method of accounting
or accounting practice of Orion;
There have not been any declarations, setting aside or payment of
dividends or distributions with respect to shares of Orion or any
redemption, purchase or other acquisition of any other Orion's
securities; and any increase in the compensation payable or to become
payable to any director or officer of Orion other than pursuant to
employment agreements or consistent with prior past practices.
SECTION 4.9. Tax Matters.
All tax returns, reports, or information returns or other documents
(including any relating or supporting information) required to be filed
before the Closing in respect of Orion have been filed, and Orion has
paid, accrued or otherwise adequately reserved for the payment of all
Taxes required to be paid in respect of the periods covered by such
returns and has adequately reserved for the payment of all Taxes with
respect to periods ended on or before the Closing for which tax returns
have not yet been filed. All Taxes of Orion have been paid or adequately
provided for and Orion knows of no proposed additional tax assessment
against Orion not adequately provided for in the Financial Statements.
No deficiency for any Taxes has been asserted or assessed by a taxing
authority against Orion; there is no outstanding audit examination,
deficiency or refund litigation with respect to any Taxes of Orion. In
the ordinary course, Orion makes adequate provision on its books for the
payment of Taxes (including for the current fiscal period) owed by Orion.
Orion has not executed an extension or waiver of any statute of
limitations on the assessment or collection of tax that is currently in
effect.
"Taxes" shall for purposes of this Agreement mean all taxes however
denominated, including any interest, penalties or addition to tax that
may become payable in respect thereof, imposed by any governmental body,
which taxes shall include, without limiting the generality of the
foregoing, all income taxes, payroll and employee withholding taxes,
unemployment insurance, social security, sales and use taxes, excise
taxes, franchise taxes, receipts taxes, occupations taxes, real and
personal property taxes, stamp taxes, transfer taxes, xxxxxxx'x
compensation taxes and any other obligation of the same or a similar
nature.
SECTION 4.10. Absence of Undisclosed Liabilities.
Orion has no indebtedness or liability, absolute or contingent, known or
unknown, which is not shown or provided for on the balance sheet of
Orion as of April 30, 2004 other than liabilities incurred or accrued
in the ordinary course of business since the date of the last financial
statement (annual or quarterly) furnished to Ovale. Except as shown in
such balance sheets or in the notes to the Financial Statements or as
disclosed in a Orion Public Report, (as hereinafter defined) Orion is not
directly or indirectly liable upon or with respect to (by discount,
repurchase agreements, or otherwise), or obligated in any other way to
provide funds in respect of, or to guarantee or assume, any debt,
obligation or dividend of any person, except endorsements in the ordinary
course of business in connection with the deposit of items for collection.
..
SECTION 4.11. Interests in Real Property.
Orion does not own or lease any real property.
SECTION 4.12. Personal Property.
Orion does not own any personal property, real property or properties
that may be deemed to be a mix of personal property and real property.
SECTION 4.13. Licenses, Permits and Governmental Approvals.
There are no licenses, permits, franchises, authorizations and approvals
issued or granted to Orion by any federal, state or local government, or
any department, agency, board, commission, bureau or instrumentality of
any of the foregoing (the "Licenses and Permits"), or any pending
applications therefore.
SECTION 4.14. Compliance with Law.
The operations of Orion have been conducted in accordance with all
applicable laws, regulations, orders and other requirements of all
courts and other governmental or regulatory authorities having
jurisdiction over Orion and its assets, properties and operations,
including, without limitation, all such laws, regulations, orders and
requirements promulgated by or relating to consumer protection, equal
opportunity, health, environmental protection, architectural barriers
to the handicapped, fire, zoning and building and occupation safety
except where such non-compliance would not have a Orion Material Advers
Effect. Orion has not received notice of any violation of any such law,
regulation, order or other legal requirement, and is not in default with
respect to any order, writ, judgment, award, injunction or decree of
any national, state or local court or governmental or regulatory
authority or arbitrator, domestic or foreign, applicable to Orion or any
of its assets, properties or operations.
SECTION 4.15. Litigation.
Except as disclosed in an Orion Public Report, there are no claims,
actions, suits, proceedings, labor disputes or investigations pending or,
to the best of the Orion's knowledge, threatened before any federal,
state or local court or governmental or regulatory authority, domestic
or foreign, or before any arbitrator of any nature, brought by or against
Orion or any of its officers,
directors, employees, agents or affiliates involving, affecting or
relating to any assets, properties or operations of Orion or the
transactions contemplated by this Agreement, nor is there any basis known
to Orion for any such action, suit, proceeding or investigation. Neither
Orion nor any of its assets or properties is subject to any order, writ,
judgment, award, injunction or decree of any federal, state or local
court or governmental or regulatory authority or arbitrator, that would
have an Orion Material Adverse Effect on its assets, properties,
operations, prospects, net income or financial condition or which would
or might interfere with the transactions contemplated by this Agreement.
SECTION 4.16. Contracts.
Except as disclosed in an Orion Public Report, there are no contracts,
agreements and other instruments to which Orion is a party or otherwise
relating to or affecting any of its assets, properties or operations,
including, without limitation, all written or oral, express or implied,
material,
1) contracts, agreements and commitments not made in the ordinary
course of business;
2) purchase and supply contracts;
3) contracts, loan agreements, repurchase agreements, mortgages,
security agreements, trust indentures, promissory notes and other
documents or arrangements relating to the borrowing of money or for
lines of credit;
4) leases and subleases of real or personal property;
5) agreements and other arrangements for the sale of any assets other
than in the ordinary course of business or for the grant of any options
or preferential rights to purchase any assets, property or rights;
6) contracts or commitments limiting or restraining Orion from engaging
or competing in any lines of business or with any person, firm, or
corporation;
7) partnership and joint venture agreements; and
8) all amendments, modifications, extensions or renewals of any of the
foregoing (the foregoing contracts, agreements and documents are
hereinafter referred to collectively as the "Commitments" and
individually as a "Commitment"). Except as disclosed in an Orion
Public Report, each Commitment is valid, binding and enforceable
against the parties thereto in accordance with its terms, and in full
force and effect on the date hereof except as disclosed in an Orion
Public Report. Orion has performed all obligations required to be
performed by it to date under, and is not in default in respect of,
any Commitment, and to Orion's best knowledge no event has occurred
which, with due notice or lapse of time or both, would constitute such
a default except as disclosed in an Orion Public Report. To the best of
Orion's knowledge, no other party to any Commitment is in default in
respect thereof, and no event has occurred which, with due notice or
lapse of time or both, would constitute
such a default.
SECTION 4.17. Employee Plans.
Orion does not have and has never had any group health plans which would
have required it to comply in relation with continuation coverage in any
material respect with the requirements of Section 4980B of the Code and
Sections 601 to 608 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). As of the date of this Agreement, Orion has
no employee welfare benefit plan (an "Employee Welfare Plan"), as defined
in Section 3(1) of ERISA, and no employee pension benefit plan as defined
in Section 3(2) of ERISA (an "Employee Pension Plan"). There are no
pension, savings, retirement, severance, health, insurance or other
employee benefit plan (collectively referred to herein as the "Plans")
which Orion maintains, or to which it has any obligation to contribute.
On the date of Closing, the Board of Directors and a majority of the
shareholders of Orion shall have duly authorized the adoption of a 2003
Long Term Incentive Plan (the "Plan") wherein an aggregate of 2,000,000
shares of Orion's common stock shall have been reserved for issuance
under the Plan.
SECTION 4.18. Insurance.
Orion does not have any insurance policies, and has not had any such
insurance policies for more than five years.
SECTION 4.19. Environmental Matters.
No licenses, permits, or other authorizations are required under any
applicable laws, regulations and other requirements of governmental or
regulatory authorities relating to pollution or to the protection of the
environment ("Environmental Laws") and Orion is in compliance with all
Environmental Laws and with all such licenses, permits and
authorizations except where the failure to comply would not have an
Orion Material Adverse Effect. Orion has not performed or suffered any
act which could give rise to, or otherwise incurred liability to any
person (governmental or not) under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.
or any other Environmental Laws, nor has Orion received notice of any
such liability or any claim therefore or submitted notice pursuant to
Section 103 of such Act to any governmental agency with respect to any
of its respective assets.
SECTION 4.20. Labor Matters.
A. Orion is not a party to:
1) any outstanding employment agreements or contracts with officers or
employees that are not terminable at will, or that provide for the
payment of any bonus or commission;
2) any agreement, policy or practice that requires it to pay
termination or severance pay to salaried, non-exempt or hourly
employees (other than as required by law); and
3) any collective bargaining agreement or other labor union contract
applicable to persons employed by Orion, nor does Orion know of any
activities or proceedings of any labor union to organize any such
employees. Orion has not breached or otherwise failed to comply
with any provisions of any employment or labor agreement, and there
are no grievances outstanding thereunder;
B. Except as set forth in Schedule 4.19;
1) Orion is in compliance in all material respects with all applicable
laws relating to employment and employment practices, wages, hours,
and terms and conditions of employment;
2) there is no unfair labor practice charge or complaint pending
before the National Labor Relations Board ("NLRB");
3) there is no labor strike, material slowdown or material work
stoppage or lockout actually pending or, to Orion's best knowledge,
threatened against or affecting Orion, and Orion has not experienced
any strike, material slow down or material work stoppage, lockout
or other collective labor action by or with respect to employees of
Orion. in the last ten years.
4) there is no representation claim or petition pending before the
NLRB and no question concerning representation exists relating to
the employees of Orion;
5) there are no charges with respect to or relating to Orion pending
before the Equal Employment Opportunity Commission or any state,
local or foreign agency responsible for the prevention of unlawful
employment practices; and
6) Orion has received no formal notice from any federal, state, local
or foreign agency responsible for the enforcement of labor or
employment laws of an intention to conduct an investigation of Orion
and no such investigation is in progress.
SECTION 4.21. Investment Intent.
The Ovale Shares will be acquired hereunder solely for the account of
Orion, for investment, and not with a view to the resale or distribution
thereof.
SECTION 4.22. SEC Filings.
Orion has heretofore delivered to Ovale copies of Orion's Annual Reports
on Form 10-KSB for the two fiscal years ended April 30, 2004, and the
Forms 10-QSB for the three, six and nine months ended July 31, 2003,
October 31, 2003 and January 31, 2004. It will deliver to Ovale its Form
10-QSB for the three months ended June 30, 2004. As of the respective
dates, such reports complied in all material respects with all applicable
requirements of the Exchange Act, and did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Orion
has filed, timely, all periodic and other reports, schedules, forms
exhibits, statements and other documents required to be filed by it with
the SEC under the Exchange Act. Orion is in compliance, to the extent
applicable, with all reporting obligations under either Section 12(g) or
15(d) of the Exchange Act. Orion has registered its Common Stock pursuant
to Section 12 of the Exchange Act and the Common Stock is listed and
trades on the OTCBB. There is no fact known to Orion (other than general
economic conditions known to the public generally) that has not been
publicly disclosed by Orion that
1) could reasonably be expected to have a material adverse effect on
the condition (financial or otherwise) or on earnings, business
affairs, properties or assets of Orion, or
2) could reasonably be expected to materially and adversely affect the
ability of Orion to perform its obligations pursuant to this
Agreement.
SECTION 4.23. Disclosure.
This Agreement, the schedules hereto and any certificate attached hereto
or delivered in accordance with the terms hereby by or on behalf of Orion
in connection with the transactions contemplated by this Agreement, when
taken together, do not contain any untrue statement of a material fact
or omit any material fact necessary in order to make the statements
contained herein and/or therein not misleading.
SECTION 4.24. Survival.
Each of the representations and warranties set forth in this Article IV
shall be deemed represented and made by Orion at the Closing as if made
at such time and shall survive the Closing for a period terminating on
the first anniversary.
ARTICLE V MUTUAL PRE-CLOSING COVENANTS
SECTION 5.1. Certain Changes and Conduct of Business.
From and after the date of this Agreement and until the Closing Date,
Each of Orion and Ovale shall conduct, its business solely in the
ordinary course consistent with past practices and in a manner
consistent with their respective representations and warranties. In
furtherance thereof, (i) Orion shall not without prior written consent
of Ovale, (ii) Ovale shall not without the prior written consent of
Orion, and (iii) the Ovale Shareholders shall not vote for or authorize
Ovale except as required or permitted pursuant to the terms hereof, to:
1) Make any material change in the conduct of its businesses and
operations, or enter into any transaction other than in the ordinary
course of business consistent with past practices;
2) Make any change in its Articles of Incorporation or By-Laws; issue
any additional shares of capital stock or equity securities or
grant any option, warrant or right to acquire any capital stock or
equity securities or issue any security convertible into or
exchangeable for its capital stock or alter any material term of any
of its outstanding securities or make any change in its outstanding
shares of capital stock or its capitalization, whether by reason of
a reclassification, recapitalization, stock split or combination,
exchange or readjustment of shares, stock dividend or otherwise;
3) Incur, assume or guarantee any indebtedness for borrowed money,
issue any notes, bonds, debentures or other corporate securities or
grant any option, warrant or right to purchase any thereof, except
pursuant to transactions in the ordinary course of business
consistent with past practices, or issue any securities convertible
or exchangeable for debt securities of Orion;
4) Make any sale, assignment, transfer, abandonment or other
conveyance of any of its assets or any part thereof;
5) Subject any of its assets, or any part thereof, to any lien or
suffer such to be imposed other than such liens as may arise in the
ordinary course of business consistent with past practices by
operation of law which will not have a material adverse effect on
Orion;
6) Acquire any assets, raw materials or properties, or enter into any
other transaction, other than in the ordinary course of business
consistent with past practices;
7) Enter into any new (or amend any existing) employee benefit plan,
program or arrangement or any new (or amend any existing) employment,
severance or consulting agreement, grant any general increase in
the compensation of officers or employees (including any such
increase pursuant to any bonus, pension, profit-sharing or other
plan or commitment) or grant any increase in the compensation
payable or to become payable to any employee, except in accordance
with pre-existing contractual provisions or consistent with past
practices;
8) Make or commit to make any material capital expenditure, other than
in the ordinary course of business;
9) Pay, loan or advance any amount to, or sell, transfer or lease any
properties or assets to, or enter into any agreement or arrangement
with, any of its affiliates;
10) Guarantee any indebtedness for borrowed money or any other
obligation of any other person;
11) Fail to keep in full force and effect insurance comparable in amount
and scope to coverage maintained by it (or on behalf of it) on the
date hereof;
12) Take any other action that would cause any of the representations
and warranties made by it in this Agreement not to remain true and
correct in all material respects;
13) Make any loan, advance or capital contribution to or investment in
any person;
14) Make any change in any method of accounting or accounting principle,
method, estimate or practice;
15) Settle, release or forgive any claim or litigation or waive any
right;
16) Commit itself to do any of the foregoing;
17) Continue to maintain, in all material respects, its properties in
accordance with present practices in a condition suitable for its
current use;
18) File, when due or required, federal, state, foreign and other tax
returns and other reports required to be filed and pay when due all
taxes, assessments, fees and other charges lawfully levied or
assessed against it, unless the validity thereof is contested in
good faith and by appropriate proceedings diligently conducted;
19) Continue to conduct its business in the ordinary course consistent
with past practices;
20) Keep its books of account, records and files in the ordinary course
and in accordance with existing practices; and
21) Continue to maintain existing business relationships with suppliers.
SECTION 5.2. Access to Properties and Records.
Ovale shall afford to Orion's accountants , and Orion shall afford to
Ovale's accountants, and their respective counsel and representatives
full access during normal business hours throughout the period prior to
the Closing Date (or the earlier termination of this Agreement) to all
of such parties, properties, books, contracts, commitments and records
and, during such period, shall furnish promptly to the requesting party
all other information concerning the other party's business, properties
and personnel as the requesting party may reasonably request, provided
that no investigation or receipt of information pursuant to this Section
5.2 shall affect any representation or warranty of, or the conditions to,
the obligations of any party.
SECTION 5.3. Negotiations.
From and after the date hereof until the earlier of the Closing or the
termination of this Agreement, no Party to this Agreement nor its
officers or directors (subject to such director's fiduciary duties), nor
anyone acting on behalf of a Party or persons, shall, directly or
indirectly, encourage, solicit, engage in discussions or negotiations
with, or provide any information to, any person, firm, or other entity
or group concerning any merger, sale of substantial assets, purchase or
sale of shares of common stock or similar transaction involving any
Party thereof except as permitted herein. A Party shall promptly
communicate to any other Party any inquiries or communications concerning
any such transaction which they may receive or of which they may become
aware of.
SECTION 5.4. Consents and Approvals.
Each Party hereto,
1) shall use its reasonable commercial efforts to obtain all necessary
consents, waivers, authorizations and approvals of all governmental and
regulatory authorities, domestic and foreign, and of all other persons,
firms or corporations required in connection with the execution, delivery
and performance by them of this Agreement, and
2) shall diligently assist and cooperate with each other party in
preparing and filing all documents required to be submitted by any Party
to any governmental or regulatory authority, domestic or foreign, in
connection with such transactions and in obtaining any governmental
consents, waivers, authorizations or approvals which may be required to
be obtained connection with such transactions.
SECTION 5.5. Public Announcement.
Unless otherwise required by applicable law, the Parties hereto shall
consult with each other before issuing any press release or otherwise
making any public statements with respect to this Agreement and shall
not issue any such press release or make any such public statement prior
to such consultation.
SECTION 5.6. Original Issuance.
From and after the date of this Agreement until the Closing Date, Ovale
shall not issue any additional shares of its capital stock or issue any
options, warrants or rights to purchase or acquire any additional shares.
ARTICLE VI CONDITIONS TO OBLIGATIONS OF ORION
The obligations of Orion to consummate the transactions contemplated by
this Agreement are subject to the fulfillment, at or before the Closing
Date, of the following conditions, any one or more of which may be waived
by Orion in its sole discretion:
SECTION 6.1. Representations and Warranties of Ovale.
All representations and warranties made by Ovale in this Agreement shall
be true and correct on and as of the Closing Date as if again made by
Ovale on and as of such date.
SECTION 6.2. Agreements and Covenants.
Ovale shall have performed and complied in all material respects to all
agreements and covenants required by this Agreement to be performed or
complied with by any of them on or prior to the Closing Date.
SECTION 6.3. Consents And Approvals.
All consents, waivers, authorizations and approvals of any governmental
or regulatory authority, domestic or foreign, and of any other person,
firm or corporation, required in connection with the execution, delivery
and performance of this Agreement shall be in full force and effect on
the Closing Date including but not limited to the approval of the Board
of Directors of Ovale and the majority shareholders of Ovale.
SECTION 6.4. No Violation of Orders.
No preliminary or permanent injunction or other order issued by any court
or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or
enacted by any government or governmental or regulatory authority, which
declares this Agreement invalid in any respect or prevents the
consummation of the transactions contemplated hereby, or which materially
and adversely affects the assets, properties, operations, prospects, net
income or financial condition of Ovale shall be in effect; and no action
or proceeding before any court or governmental or regulatory authority,
domestic or foreign, shall have been instituted or threatened by any
government or governmental or regulatory authority, domestic or foreign,
or by any other person, or entity which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement.
SECTION 6.5. Good standing and Other Certificates.
Ovale shall have delivered to Orion:
1) Copies of certificates or articles of incorporation, all amendments
thereto, in each case certified by the appropriate official of its
jurisdiction of incorporation;
2) A certificate from the appropriate official of its respective
jurisdictions of incorporation, to the effect that Ovale is in good
standing in such jurisdiction and listing all charter documents
including all amendments thereto, on file;
3) A copy of the Bylaws of Ovale, certified by its Secretary as being
true and correct and in effect on the Closing Date;
4) A certificate from the Chief Executive Officer and Secretary (or
equivalent officer) of Ovale attesting that (i) the documents referred
to in sections 1), 2), and 3) of this subsection, and (ii) the
resolutions of the Board of Directors of Ovale (or the equivalent
governing body) annexed to their certificate are true and correct; and
5) Copies of the investment letters executed by the Ovale Shareholders
and Xxxxxx.
SECTION 6.6. Other Closing Documents.
Orion shall have received such other certificates, instruments and
documents in confirmation of the representations and warranties of Ovale
or in furtherance of the transactions contemplated by this Agreement as
Orion or its counsel may reasonably request.
ARTICLE VII CONDITIONS TO OBLIGATIONS OF OVALE
The obligations of Ovale to consummate the transactions contemplated by
this Agreement are subject to the fulfillment, at or before the Closing
Date, of the following conditions, any one or more of which may be waived
by Ovale in its sole discretion.
SECTION 7.1. Representations and Warranties of Orion.
All representations and warranties made by Orion in this Agreement shall
be true and correct on and as of the Closing Date as if again made by
Orion on and as of such date.
SECTION 7.2. Agreements and Covenants.
Orion shall have performed and complied in all material respects to all
agreements and covenants required by this Agreement to be performed or
complied with by it on or prior to the Closing Date.
SECTION 7.3. Consents and Approvals.
All consents, waivers, authorizations and approvals of any governmental
or regulatory authority, domestic or foreign, and of any other person,
firm or corporation, required in connection with the execution, delivery
and performance of this Agreement, shall have been duly obtained and
shall be in full force and effect on the Closing Date, including but not
limited to the approval of the Board of Directors of Orion, and the
majority shareholders of Orion. In connection with obtaining a majority
shareholder approval and under the rules and regulations of the Exchange
Act, Orion will file a current or amended Schedule 14C with the SEC
reflecting this transaction and the shareholder approval will be
effective twenty (20) days following the day the definitive Schedule 14C
is filed with the SEC and the Information Statement mailed to Orion's
shareholders.
SECTION 7.4. No Violation of Orders.
No preliminary or permanent injunction or other order issued by any
court or other governmental or regulatory authority, domestic or foreign,
nor any statute, rule, regulation, decree or executive order promulgated
or enacted by any government or governmental or regulatory authority,
domestic or foreign, that declares this Agreement invalid or
unenforceable in any respect or which prevents the consummation of the
transactions contemplated hereby, or which materially and adversely
affects the assets, properties, operations, prospects, net income
or financial condition of Orion and its subsidiaries, taken as a whole,
shall be in effect; and no action or proceeding before any court or
government or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which
seeks to prevent or delay the consummation of the transactions
contemplated by this Agreement or which challenges the validity or
enforceability of this Agreement.
SECTION 7.5. Good Standing and Other Certificates.
Orion shall have delivered to Ovale:
1) Copies of its certificate or articles of incorporation, and all
amendments thereto, in each case certified by the Secretary of State or
other appropriate official of its jurisdiction of incorporation;
2) A certificate from the Secretary of State or other appropriate
official of its jurisdiction of incorporation, to the effect that Orion
is in good standing in such jurisdiction and listing all charter
documents including all amendments thereto on file; and
3) A copy of the Bylaws of Orion, certified by its Secretary as being
true and correct and in effect on the Closing Date.
4) A certificate from the President and Secretary of Orion attesting that
(i) the documents referred to in sections 1), 2), and 3) of this
subsection, and (ii) the resolutions of the Board of Directors of Orion
annexed to their certificate are true and correct;
5) Copies of investment letters executed by each Orion shareholders who
holds restricted shares; and
6) the stock certificates and other documents referred to in Article I.
SECTION 7.6. Other Closing Documents.
Ovale shall have received such other certificates, instruments and
documents in confirmation of the representations and warranties of Orion
or in furtherance of the transactions contemplated by this Agreement as
Ovale or its counsel may reasonably request.
SECTION 7.7. Corporate Matters.
At the Closing, Orion's Board of Directors and the requisite number of
its stockholders shall have authorized:
1) An amendment to Orion's Certificate of Incorporation to increase its
authorized capital stock to 22,000,000 Shares, of which 20,000,000 shall
be Common Stock, $.01 par value per share, and 2,000,000 shall be "blank
check" Preferred Stock, $.01 par value per share;
2) The adoption of a 2003 Long Term Incentive Plan (the "Plan") wherein
an aggregate of 2,000,000 shares of Orion's common stock will be reserved
for issuance under the Plan;
3) The election of Xxxxxxx Xxxxxx and Xxxxxx Xxxxx to Orion's Board of
Directors and the election of such other persons designated by Ovale so
that the Ovale Directors including Messrs. Xxxxxx and Xxxxx constitute a
majority of the Board of Directors.
4) Ratification of the acts and actions of management since the last
annual meeting of the shareholders of Orion, and
5) Caused Orion to carry out its obligations under Article I.
ARTICLE VIII TERMINATION AND ABANDONMENT
SECTION 8.1. Methods of Termination.
This Agreement may be terminated and the transactions contemplated hereby
may be abandoned at any time before the Closing:
1) By the mutual written consent of Ovale and Orion;
2) By Orion, upon a material breach of any representation, warranty,
covenant or agreement on the part of Ovale and the Ovale shareholders
set forth in this Agreement, or if any representation or warranty of
Ovale shall become untrue, in either case such that any of the conditions
set forth in Article VI hereof would not be satisfied an "Ovale Breach"),
and such breach shall, if capable of cure, have not been cured within ten
(10) days after receipt by the party in breach of a notice from the
non-breaching party setting forth in detail the nature of such breach;
3) By Ovale, upon a material breach of any representation, warranty,
covenant or agreement on the part of Orion set forth in this Agreement,
or, if any representation or warranty of Orion shall become untrue, in
either case such that any of the conditions set forth in Article VII
hereof would not be satisfied (an "Orion Breach"), and such breach shall,
if capable of cure, not have been cured within ten (10) days after
receipt by the party in breach of a notice from the non-breaching party
setting forth in detail the nature of such breach;
4) By either Ovale or Orion, if the Closing shall not have been
consummated on or before October 30, 2004, provided, however, that this
Agreement may be extended by written notice of either Ovale or Orion, if
the Closing shall not have been consummated as a result of Orion or Ovale
having failed to receive all required regulatory approvals or consents
with respect to this transaction or as the result of the entering of an
order as described in this Agreement; and further provided, however, that
the right to terminate this Agreement under this Section 8.1(4) shall not
be available to any party whose failure to fulfill any obligations under
this Agreement has been the cause of, or resulted in, the failure of the
Closing to occur on or before this date.
5) By either Ovale or Orion if a court of competent jurisdiction or
governmental, regulatory
or administrative agency or commission shall have issued an order, decree
or ruling or taken any other action (which order, decree, or ruling the
parties hereto shall use its best efforts to lift), which permanently
restrains, enjoins or otherwise prohibits the transactions contemplated
by this Agreement.
SECTION 8.2. Procedure Upon Termination.
In the event of termination and abandonment of this Agreement by Ovale,
or by Orion pursuant to Section 8.1, written notice thereof shall
forthwith be given to the other parties and this Agreement shall
terminate and the transactions contemplated hereby shall be abandoned,
without further action. If this Agreement is terminated as provided
herein, no party to this Agreement shall have any liability or further
obligation to any other party to this Agreement; provided however, that
no termination of this Agreement pursuant to this Article VIII shall
relieve any party of liability for a breach of any provision of this
Agreement occurring before such termination.
ARTICLE IX POST-CLOSING AGREEMENTS
SECTION 9.1. Consistency in Reporting.
Each Party hereto agrees that: (i) this transaction is not intended to
qualify as a tax-free reorganization under the Code; (ii) the exchange
shall be reported for Federal income tax purposes as a taxable
transaction; (iii) for purposes of all financial statements, tax returns
and reports, and communications with third parties, the transactions
contemplated in this Agreement and ancillary or collateral transactions
will be treated as a taxable transaction; and (iv) if the
characterization of any transaction contemplated in this Agreement or
any ancillary or collateral transaction is challenged, each party hereto
will testify, affirm and ratify that the characterization contemplated
in this Agreement was with the characterization intended by the party;
provided, however, that nothing herein shall be construed as giving rise
to any obligation if the reporting position is determined to be incorrect
by final decision of a court of competent jurisdiction.
ARTICLE X MISCELLANEOUS PROVISIONS
SECTION 10.1. Survival of Provisions.
The respective representations, warranties, covenants and agreements of
each of the parties to this Agreement (except covenants and agreements
which are expressly required to be performed and are performed in full
on or before the Closing Date) shall survive the Closing Date and the
consummation of the transactions contemplated by this Agreement, subject
to Sections 2.22 and 4.23, and except that the agreements dated February
10, 2004, March 25, 2004 and May 5, 2004 shall remain effective . In the
event of a breach of any of such representations, warranties or covenants,
the party to whom such representations, warranties or covenants have been
made
shall have all rights and remedies for such breach available to it under
the provisions of this Agreement or otherwise, whether at law or in
equity, regardless of any disclosure to, or investigation made by or on
behalf of such party on or before the Closing Date.
SECTION 10.2. Publicity.
Neither party shall cause the publication of any press release or other
announcement with respect to this Agreement nor the transactions
contemplated hereby without the consent of the other party, unless a
press release or announcement is required by law. If any such
announcement or other disclosure is required by law, the disclosing party
agrees to give the non-disclosing party prior notice and an opportunity
to comment on the proposed disclosure.
SECTION 10.3. Successors and Assigns; No Third-Party Beneficiaries.
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors and assigns; provided,
however, that no party shall assign or delegate any of the obligations
created under this Agreement without the prior written consent of the
other party.
SECTION 10.4. Finders.
The Parties represent and warrant that they have not employed the
services of a broker or finder in connection with this Agreement or any
of the transactions contemplated hereby.
SECTION 10.5. Fees and Expenses.
Except as otherwise expressly provided in this Agreement, all legal and
other fees, costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party
incurring such fees, costs or expenses.
SECTION 10.6. Notices.
All notices and other communications given or made pursuant hereto shall
be in writing and shall be deemed to have been given or made if in
writing and delivered personally, transmitted by facsimile with proof of
transmission, or sent by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses:
1) If to Orion, to:
Orion Diversified Technologies, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
Copy to:
Xxxxx Xxxxxxxxxxx, Esq.
000 Xxxxxxx Xxx. 14th FL
Xxx Xxxx, XX 00000
2) If to Ovale, to:
Ovale S.A.
00 Xxxxxxxxx Xxxxxxxxxx
XX - 0000 Xxxxxx, Xxxxxxxxxxx
Attn: Xxxxxxxx Xxxxxx
Copy to:
Xxxxxxxx Xxxxxxxx & Mushkin, LLC
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Esq.
or to such other persons or at such other addresses as shall be
furnished by either party by like notice to the other, and such notice
or communication shall be deemed to have been given or made as of the
date so delivered or mailed. No change in any of such addresses shall be
effective insofar as notices under this Section 10.6 are concerned
unless such changed address is located in the United States of America
and notice of such change shall have been given to such other party
hereto as provided in this Section 10.6.
SECTION 10.7. Entire Agreement.
This Agreement, together with the exhibits hereto, represents the entire
agreement and understanding of the parties with reference to the
transactions set forth herein and no representations or warranties have
been made in connection with this Agreement other than those expressly
set forth herein or in the exhibits, certificates and other documents
delivered in accordance herewith. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications,
understandings and agreements between the parties relating to the
subject matter of this Agreement and all prior drafts of this Agreement,
all of which are merged into this Agreement. No prior drafts of this
Agreement and no words or phrases from any such prior drafts shall be
admissible into evidence in any action or suit relating to this Agreement.
SECTION 10.8. Severability.
This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the
validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the Parties hereto intend that there
shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible and
be valid and enforceable.
SECTION 10.9. Titles and Headings.
The Article and Section headings contained in this Agreement are solely
for convenience of reference and shall not affect the meaning or
interpretation of this Agreement or of any term or provision hereof.
SECTION 10.10. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be
considered one and the same agreement.
SECTION 10.11. Convenience of Forum; Consent to Jurisdiction.
The parties to this Agreement, acting for themselves and for their
respective successors and assigns, without regard to domicile,
citizenship or residence, hereby expressly and irrevocably elect as the
sole judicial forum for the adjudication of any matters arising under
or in connection with this Agreement, and consent and subject themselves
to the jurisdiction of, the courts of the State of New York located in
New York County, and/or the United States District Court for the Southern
District of New York, in respect of any matter arising under this
Agreement. Service of process, notices and demands of such courts may be
made upon any party to this Agreement by personal service at any place
where it may be found or giving notice to such party as provided in
Section 9.6.
SECTION 10.12. Enforcement of The Agreement.
The parties hereto agree that irreparable damage would occur if any of
the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms
and provisions hereto, this being in addition to any other remedy to
which they are entitled at law or in equity.
SECTION 10.13. Governing Law.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of New York without giving effect
to the choice-of-law provisions thereof.
SECTION 10.14. Schedules.
Any schedule not previously provided or attached hereto may be exchanged
between the Parties as least twenty (20) days prior to the scheduled
Closing Date. See Section 1.2.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ORION DIVERSIFIED TECHNOLOGIES, INC.
BY: /s/ Xxxxx Xxxxx
XXXXX XXXXX, President
ATTEST:
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, Secretary
OVALE S.A.
BY: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, President
ATTEST:
By: /s/ Xxxxxxxx Xxxxxxx
Member of the Board
/s/ Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, as Class A Shareholder solely as to section 1.1(1) and
Art III.
/s/ Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, as Class B Shareholder solely as to section 1.1(1) and
Art III.
/s/ Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, as representative of the June Borrowers solely as to
section 1.1(2)
/s/ Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, as Lender solely as to section 1.1(3) and Art. IIIA.
EXHIBIT 1
HOLDER OF RECORD SHARES
Name and Signature
XXXXXXXX FABERT_______________________________ 100 CLASS A OVALE SHARES
XXXXXXXX FABERT________________________________ 150 CLASS B OVALE SHARES
