EXHIBIT 2.1
CORPORATE COMBINATION AGREEMENT
This Corporate Combination Agreement (the "Agreement") effective February 6,
2001, is by and between Combined Companies Corporation, a Delaware corporation
("CCC"), having its principal offices at 00000 Xxxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000; and aggregate holders of not more than 4,125,000
shares (a majority-in-interest of) CCC as of January 1, 2001 (the "Majority
Holders"), and the sole shareholders (Xxxxxxx and Xxxxxxx Xxxxx) of Print Data
Corp., a Delaware corporation having its offices at 00 Xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 ("PRINT DATA"), who are listed on Exhibit A to this
Agreement.
RECITALS:
A. CCC desires to acquire all of the issued and outstanding capital
interests or shareholdings of PRINT DATA and all of the shareholders of PRINT
DATA desire to exchange all of their shares of PRINT DATA for shares of CCC
authorized but unissued common stock as hereinafter provided.
B. It is the intention of the parties hereto that: (i) CCC shall acquire all
of the issued and outstanding shares of PRINT DATA in exchange solely for the
number of shares of CCC's authorized but unissued shares of common stock, par
value $.001 ("Common Stock"), set forth below (the "Exchange"); and (ii) the
Exchange shall qualify as a transaction in securities exempt from registration
or qualification under the Securities Act of 1933, as amended, and under the
applicable securities laws of each state or jurisdiction where all of the share
holders of PRINT DATA (the "Shareholders") reside, with PRINT DATA becoming a
wholly-owned subsidiary of CCC. The combined entity would then change its name
to "PRINT DATA CORP".
C. The board of directors of CCC deems it to be in the best interest of CCC
and its shareholders to acquire all of the issued and outstanding interests of
PRINT DATA.
D. The directors and shareholders of PRINT DATA deem it to be in the best
interest of the Print Data shareholders to exchange all of the capital interests
of PRINT DATA for shares of CCC, as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
1
SECTION 1. EXCHANGE OF SHARES
1.1 Exchange of Shares. CCC and the Shareholders hereby agree that the share
holders shall, on the Closing Date (as hereinafter defined), exchange all of the
issued and outstanding shares of PRINT DATA for 20,000,000 shares of CCC (the
"CCC Shares") The CCC Shares will be restricted against resale pursuant to the
provisions of Federal and state securities laws. The PRINT DATA shares to be
tendered (100 shares) will represent all of the issued and outstanding capital
interests of PRINT DATA. The PRINT DATA Shares owned by each share holder and
the number of CCC Shares which each will receive in the Exchange are set forth
in Exhibit A hereto, which will constitute approximately 83% of the
then-outstanding ownership of the combined entity.
1.2 Delivery of Shares. On the Closing Date, the Shareholders wishing to
exchange PRINT DATA Shares for CCC Shares (the "Exchanging Share holders") will
deliver to CCC the certificates representing the Print Data Shares, duly
endorsed (or with executed stock powers) so as to make CCC the sole owner
thereof. Upon delivery of the Print Data Shares, CCC will deliver certificates
representing the CCC Shares to the exchanging Shareholders, making the
exchanging shareholders the majority shareholders of CCC.
1.3 Restricted Securities. The CCC Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be resold
unless the resale thereof is registered under the Securities Act or an exemption
from such registration is available. Each certificate representing the CCC
Shares will have a legend thereon in substantially the following form:
The Shares represented by the certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"). The shares have been
acquired for investment and may not be sold or transferred in the
absence of an effective Registration Statement for the resale of the
shares under the Act unless in the opinion of counsel satisfactory to
the Company, registration is not required under the Act.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF Print Data AND THE Shareholders
PRINT DATA and the shareholders, jointly and not severally, hereby represent
and warrant as follows:
2.1 Organization and Good Standing. PRINT DATA is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. PRINT DATA has the corporate power and authority to carry on its
business as presently conducted. PRINT DATA is qualified to do business in all
jurisdictions where the failure to be so qualified would have a material adverse
effect on its business.
2
2.2 Corporate Authority. PRINT DATA has the power to enter into this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transaction contemplated hereby
have been duly authorized by the officers, directors and a majority of the Share
holders of PRINT DATA. The execution and performance of this Agreement will not
constitute a material breach of any agreement, indenture, mortgage, license or
other instrument or document to which PRINT DATA is a party and will not violate
any judgment, decree, order, writ, rule, statute, or regulation applicable to
PRINT DATA or its properties. The execution and performance of this Agreement
will not violate or conflict with any provision of the Articles of Incorporation
or the Bylaws of PRINT DATA.
2.3 Ownership of Shares. The Share holders described on Exhibit A are the
owners of record and beneficially of all of the issued and outstanding shares of
PRINT DATA. Except as set forth on Schedule 2.3, each Majority Share Holder
represents and warrants that he, she or it owns such shares free and clear of
all rights, claims, liens and encumbrances, and the shares have not been sold,
pledged, assigned or otherwise transferred except pursuant to this Agreement.
2.4 Receipt of Corporate Information; Independent Investigation; Access. All
requested publicly-available documents, records and books pertaining to CCC and
the CCC Shares will be delivered to the Shareholder or the Shareholder's
advisors. All of the Shareholder's questions and requests for information will
be answered to the Shareholder's satisfaction. Each Majority Shareholder
acknowledges that they, in making the decision to exchange the Print Data Shares
for CCC Shares, will rely upon independent investigations made by them or their
representatives, if any, and they will have, prior to the Closing Date, been
given access to and the opportunity to examine all material contracts and
documents relating to this offering and an opportunity to ask questions of, and
to receive information from, CCC or any person acting on its behalf concerning
the terms and conditions of this Agreement. Each Print Data shareholder and its
advisors, if any, will have been furnished with access to all publicly available
materials relating to the business, finances and operation of CCC and materials
relating to the offer and sale of the CCC Shares which have been requested. Each
Majority Shareholder and its advisors, if any, will have received complete and
satisfactory answers to any such inquiries.
2.5 Risks. Each Majority Shareholder acknowledges and understands that the
purchase of the CCC Shares involves a high degree of risk and is suitable only
for persons of adequate financial means who have no need for liquidity in this
investment in that (i) the Shareholder may not be able to liquidate the
investment in the event of an emergency; (ii) transferability is extremely
limited; and (iii) in the event of a disposition, the Shareholder could sustain
a complete loss of its entire investment. The Shareholder is sufficiently
experienced in financial and business matters to be capable of evaluating the
merits and risks of an investment in CCC; has evaluated such merits and risks,
including risks particular to the Shareholder's situation; and the Shareholder
has determined that this investment is suitable for the Shareholder. The
Shareholder has adequate financial resources and can bear a complete loss of the
Shareholder's investment.
3
2.6 Investment Intent. Each Majority Shareholder hereby represents that the
CCC Shares are being acquired for the Shareholder's own account with no
intention of distributing such securities to others. The Shareholder has no
contract, undertaking, agreement or arrangement with any person to sell,
transfer or otherwise distribute to any person or to have any person sell,
transfer or otherwise distribute the Shares for the Shareholder. The Shareholder
is presently not engaged, nor does the Shareholder plan to engage within the
presently foreseeable future, in any discussion with any person regarding such a
sale, transfer or other distribution of the Shares or any interest therein.
2.7 Compliance with Federal and State Securities Laws. The Shareholder
understands that the CCC Shares have not been registered under the Securities
Act. The Shareholder understands that the CCC Shares must be held indefinitely
unless the sale or other transfer thereof is subsequently registered under the
Securities Act or an exemption from such registration is available. Moreover,
the Shareholder understands that its right to transfer the CCC Shares will be
subject to certain restrictions, which include restrictions against transfer
under the Securities Act and applicable state securities laws. In addition to
such restrictions, the Shareholder realizes that it may not be able to sell or
dispose of the CCC Shares as there may be no public or other market for them.
The Shareholder understands that certificates evidencing the Shares shall bear a
legend substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY APPLICABLE STATE LAW. THEY MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR PLEDGED UNLESS REGISTERED UNDER THE SECURITIES ACT AND
ANY APPLICABLE STATE LAW OR PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS
2.8 Approvals. No approval, authorization, consent, order or other action
of, or filing with, any person, firm or corporation or any court, administrative
agency or other governmental authority is required in connection with the
execution and delivery of this Agreement by PRINT DATA and the Majority
Shareholders for the consummation of the transactions described herein, other
than as set forth on Schedule 2.3.
2.9 No General Solicitation. Shareholder is not purchasing the CCC Shares
because of or following any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or presented at any seminar or meeting, or any
solicitation or a subscription by a person other than a representative of CCC.
2.10 Financial Statements, Books and Records. Attached as Exhibit 2.10 are
the audited financial statements (balance sheet, income statement, notes) of
PRINT DATA as of December 31, 1999 and December 31, 1998 and for the 9-month
period (unaudited) ending September 30, 2000 (the "Financial Statements"). The
books of account and other financial records of PRINT DATA are in all respects
complete and correct in all material respects and are maintained in accordance
with good business and accounting practices. The Directors and Majority
Shareholders acknowledge that a minimum of two (2) years of audited financial
information will be required to be filed with the Securities and Exchange
commission within 60 days of the Closing date of this Agreement.
4
2.11 No Material Adverse Changes. Since September 30, 2000 there has not
been:
(i) any material adverse change in the financial
position of PRINT DATA except changes arising in the ordinary
course of business, which changes will in no event materially and
adversely affect the financial position of PRINT DATA;
(ii) any damage, destruction or loss materially
affecting the assets, prospective business, operations or
condition (financial or otherwise) of PRINT DATA whether or not
covered by insurance;
(iii) any declaration, setting aside or payment of
any dividend or distribution with respect to any redemption or
repurchase of PRINT DATA capital interests;
(iv) any sale of an asset (other than in the
ordinary course of business) or any mortgage or pledge by PRINT
DATA of any properties or assets; or
(v) adoption of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or
arrangement.
2.12 Taxes. PRINT DATA has filed all material tax, governmental and/or
related forms and reports (or extensions thereof) due or required to be filed
and has paid or made adequate provisions for all taxes or assessments which had
become due as of the Closing Date, and there are no deficiency notices
outstanding. No extensions of time for the assessment of deficiencies for any
year is in effect. No deficiency notice is proposed or, to the knowledge of the
Major Shareholders after reasonable inquiry, threatened against PRINT DATA. The
tax returns of PRINT DATA have never been audited.
2.13 Compliance with Laws. PRINT DATA has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of PRINT DATA.
2.14 No Breach. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of
Incorporation or the Bylaws of PRINT DATA;
(ii) violate, conflict with or result in the breach
of any of the terms of, result in a material modification of,
otherwise give any other contracting party the right to
terminate, or constitute (or with notice or lapse of time, or
both constitute) a default under any contract or other agreement
to which PRINT DATA is a party or by or to which it or any of its
assets or properties may be bound or subject;
5
(iii) violate any order, judgment, injunction,
award or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, PRINT DATA or upon the
properties or business of PRINT DATA; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein
which could have a material, adverse effect on the business or
operations of PRINT DATA.
2.15 Actions and Proceedings. PRINT DATA is not a party to any material
pending litigation or, to the knowledge of the Shareholders, after reasonable
inquiry, any governmental investigation or proceeding not reflected in the PRINT
DATA Financial Statements and, to their best knowledge, no material litigation,
claims, assessments or non-governmental proceedings are threatened against PRINT
DATA except as set forth on Schedule 2.15 attached hereto and made a part
hereof.
2.16 Agreements. Schedule 2.16 sets forth any material contract or
arrangement to which PRINT DATA is a party or by or to which it or its assets,
properties or business are bound or subject, whether written or oral.
2.17 Brokers or Finders. No broker's or finder's fee will be payable by
PRINT DATA in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by PRINT DATA or
any of its Shareholders, other than Wallstreet Pics, LLC, which is entitled to a
4% (equity) finder's fee. The finders fee due Wallstreet Pics shall be a charge
against and a dilution of the entire company and shall be allocated pro rata to
the company (2.0%), the Investment Group, i.e., CCC prior to the corporate
combination (1.6%), and Wallstreet Pics (0.4%).
2.18 Real Estate. Except as set forth on Schedule 2.18, PRINT DATA owns no
real property nor is a party to any leasehold agreement. All uses of the real
property by PRINT DATA or its subsidiaries conform in all material respects to
all applicable building and zoning ordinances, laws and regulations.
2.19 OSHA and Environmental Compliance. To the knowledge of the Majority
Shareholders, PRINT DATA has duly complied with, and its offices, real property,
business, assets, leaseholds and equipment are in compliance in all material
respects with, the provisions of the Federal Occupational Safety and Health Act,
the Environmental Protection Act, and all other environmental laws. There have
been no outstanding citations, notices or orders of non-compliance issued to
PRINT DATA or relating to its business, assets, property, leaseholders or
equipment under such laws, rules or regulations.
PRINT DATA has been issued all required federal, state and local
licenses, certificates or permits relating to all applicable environmental laws.
There are no visible signs of releases, spills, discharges, leaks or disposal
(collectively, referred to as "Releases") of hazardous substances at, upon,
under or within the real property owned by Print Data. There are no underground
storage tanks or polycholorinated biphenyls on the real property. To the best of
6
the Majority Shareholders' knowledge, after reasonable inquiry, the real
property has never been used as a treatment, storage or disposal facility of
hazardous waste. To the best of the Majority Shareholders' knowledge, after
reasonable inquiry, no hazardous substances are present on the real property or
any premises leased by PRINT DATA excepting such quantities as are handled in
accordance with all applicable manufacturer's instructions and governmental
regulations and in the proper storage containers and as are necessary for the
operation of the commercial business of PRINT DATA.
2.20 Tangible Assets. To the knowledge of the Majority Shareholders, PRINT
DATA has full title and interest in all machinery, equipment, furniture,
leasehold improvements, fixtures, projects, owned or leased by PRINT DATA, any
related capitalized items or other tangible property material to the business of
PRINT DATA (the "Tangible Assets"). Other than as set forth in Schedule 2.20,
PRINT DATA holds all rights, title and interest in all the Tangible Assets owned
by it on the Balance Sheet or acquired by it after the date on the Balance Sheet
free and clear of all liens, pledges, mortgages, security interests, conditional
sales contracts or any other encumbrances. All of the Tangible Assets are in
good operating condition and repair and are usable in the ordinary course of
business of PRINT DATA and conform to all applicable laws, ordinances and
government orders, rules and regulations relating to their construction and
operation, except as set forth on Schedule 2.20 hereto. PRINT DATA has clear
title to all of its fictional business names, trading names, registered and
unregistered trademarks, service marks and applications (collectively, the
"Marks") and Marks are included as Tangible Assets.
2.21 Liabilities. PRINT DATA did not have any material direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any governmental charge
or lawsuit (all of the foregoing collectively defined to as "Liabilities"),
which are not fully, fairly and adequately reflected on the Financial Statements
(annual and interim), except for a specific Liabilities set forth on Schedule
2.21 attached hereto and made a part hereof. As of the date of Closing, PRINT
DATA will not have any Liabilities, other than Liabilities fully and adequately
reflected on the Financial Statements except for Liabilities incurred in the
ordinary course of business and as set forth in Schedule 2.21. To the best
knowledge of the Shareholders, there is no circumstance, condition, event or
arrangement which may hereafter give rise to any Liabilities not in the ordinary
course of business.
2.22 Access to Records. The corporate financial records, minute books and
other documents and records of PRINT DATA have been made available to CCC prior
to the Closing hereof.
2.23 Operations of PRINT DATA. From the date of the Financial Statements
through the date of Closing, PRINT DATA has not and will not, outside of the
ordinary course of business, have:
(i) incurred any indebtedness or borrowed money;
7
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any Shareholder, or made any direct
or indirect redemption, retirement, purchase or other acquisition
of any interests in its capital structure;
(iii) made any loan or advance to any Shareholder, officer,
director, employee, consultant, agent or other representative or
made any other loan or advance; except for advanced compensation
to be amortized for Xxxx Xxxxx in the amount of $60,000;
(iv) disposed of any assets of PRINT DATA;
(v) materially increased the annual level of compensation of
any executive employee of PRINT DATA;
(vi) increased, terminated, amended or otherwise modified any
plan for the benefit of employees of PRINT DATA;
(vii) issued any equity securities or rights to acquire such
equity securities; or
(viii) entered into or modified any contract, agreement or
transaction.
2.24 Capitalization. The authorized capital of PRINT DATA consists of 1,000
shares of common stock, par value $0.01, of which 100 shares are issued and
outstanding. PRINT DATA is current with respect to all dividend obligations.
PRINT DATA has not granted, issued or agreed to grant, issue or make any
warrants, options, subscription rights or any other commitments of any character
relating to the issued or unissued shares of capital stock of PRINT DATA except
as set forth on Schedule 2.24 attached hereto and made a part hereof.
PRINT DATA has no subsidiaries.
2.25 Full Disclosure. No representation or warranty by PRINT DATA or the
Majority Shareholders in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished by PRINT DATA pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to a complete and correct presentation of
all material aspects of the business of PRINT DATA, and/or the status of the
PRINT DATA Shares.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF CCC
CCC hereby represents and warrants as follows:
3.1 Organization and Good Standing. CCC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
It has the corporate power to own its own property and to carry on its business
as now being conducted and is duly qualified to do business in any jurisdiction
where so required except where the failure to so qualify would have no material
adverse effect on its business.
8
3.2 Corporate Authority. CCC has the corporate power to enter into this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
has been, or will be prior to the Closing Date, duly authorized by the Board of
Directors of CCC and a majority of the Shareholders as required by Delaware law.
The execution and performance of this Agreement will not constitute a material
breach of any agreement, indenture, mortgage, license or other instrument or
document to which CCC is a party and will not violate any judgment, decree,
order, writ, rule, statute, or regulation applicable to CCC or its properties.
The execution and performance of this Agreement will not violate or conflict
with any provision of the Articles of Incorporation or by-laws of CCC.
3.3 The CCC Shares. At the Closing, the CCC Shares to be issued and
delivered to the Shareholders hereunder will when so issued and delivered,
constitute valid and legally issued shares of CCC Common Stock, fully paid and
nonassessable.
3.4 Financial Statement: Books and Records. Attached as Exhibit 3.4 are the
audited financial statements (balance sheet, income statement and Notes) of CCC
for the fiscal year ended December 31, 1999 and unaudited financial statements
for the quarter ended at June 30, 2000 (collectively the "Financial
Statements"), all of which are on file with the U.S. Securities and Exchange
Commission's XXXXX system. The unaudited statements for the quarter ending
September 30, 2000 have been prepared and will be filed with the XXXXX system as
a condition of closing. The Financial Statements fairly represent the financial
position of CCC as at such date and the results of their operations for the
periods then ended. The Financial Statements were prepared in accordance with
generally accepted accounting principles applied on a consistent basis with
prior periods except as otherwise stated therein. The books of account and other
financial records of CCC are in all respects complete and correct in all
material respects and are maintained in accordance with good business and
accounting practices.
3.5 No Material Adverse Changes.
Except as described on Schedule 3.5, since September 30, 2000, there has not
been:
(i) any material adverse changes in the financial position of
CCC except changes arising in the ordinary course of business,
which changes will in no event materially and adversely affect
the financial position of CCC.
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial
or otherwise) of CCC whether or not covered by insurance;
(iii) any declaration setting aside or payment of any dividend
or distribution with respect to any redemption or repurchase of
CCC capital stock, other than as agreed upon among the parties;
9
(iv) any sale of an asset (other than as described in (iii)
above, or in the ordinary course of business) or any mortgage
pledge by CCC of any properties or assets; or
(v) adoption or modification of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or
arrangement.
(vi) except in the ordinary course of business, incurred or
assumed any indebtedness or liability, whether or not currently
due and payable;
(vii) any loan or advance to any Shareholder, officer,
director, employee, consultant, agent or other representative or
made any other loan or advance otherwise than in the ordinary
course of business;
(viii) any material increase in the annual level of
compensation of any executive employee of CCC;
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction;
(x) issued any equity securities or rights to acquire equity
securities, other than as set forth in Schedule 3.5.
3.6 Taxes. CCC, formed on April 27, 1998, has filed all tax, governmental
and/or related forms and reports (or extensions thereof) due or required to be
filed after 1998. CCC's accountants are in the process of filing CCC's tax
returns for the year ended 2000. Any liabilities for taxes, in the aggregate,
will not exceed $1,000.
3.7 Compliance with Laws. Except as described on Schedule 3.7, CCC has
complied with all federal, state, county and local laws, ordinances,
regulations, inspections, orders, judgments, injunctions, awards or decrees
applicable to it or its business, which, if not complied with, would materially
and adversely affect the business of CCC.
3.8 Actions and Proceedings. CCC is not a party to any material pending
litigation or, to its knowledge, any governmental proceedings are threatened
against CCC.
3.9 Periodic Reports. CCC is a Section 12(g) reporting company and therefore
must file periodic reports to be filed pursuant to the Securities Exchange Act
of 1934, as amended, for purposes of trading on the OTC Bulletin Board. These
reports are current, except for the September 30, 2000 10-QSB filing, as of the
date of execution of this Agreement.
10
3.10 Capitalization. As of the Closing Date, there are approximately 250
shareholders of record that are the owners of 4,125,000 shares (following
10-for-1 split) of CCC Common Stock, none of which owns in excess of 5% of the
issued and outstanding shares, except as may be set forth on Schedule 3.10
attached, a shareholder list. CCC has 100,000,000 shares of common stock, par
value $0.001 per share authorized, of which 4,125,000 are issued, and 8,000,000
shares of preferred stock, par value $0.001 per share authorized, none of which
have been issued. There are no outstanding warrants, stock options, stock rights
or other commitments of any character relating to the issued or unissued shares
of Common Stock of CCC. AppleTree, Page One and Xxxxxxx and Xxxxxxx Xxxxx will
have anti-dilution rights for a period of 2 years from the date of the Closing.
3.11 Access to Records. The corporate financial records, minute books, and
other documents and records of CCC have been made available to PRINT DATA prior
to the Closing hereof.
3.12 No Breach. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of CCC;
(ii) violate, conflict with or result in the breach of any of
the material terms of, result in a material modification of,
otherwise give any other contracting party the right to
terminate, or constitute (or with notice or lapse of time or both
constitute) a default under, any contract or other agreement to
which CCC is a party or by or to which it or any of its assets or
properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory
body against, or binding upon, CCC or upon the securities,
properties or business to CCC; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein,
which violation could have a material adverse effect on the
business or operations of CCC.
3.13 Brokers or Finders. No broker's or finder's fee will be payable by CCC
in connection with the transactions contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions of CCC, other than as set forth
in paragraph 2.17.
3.14 Corporate Authority. CCC has the corporate power to enter into this
Agreement and to perform its respective obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transaction contemplated
hereby have been duly authorized by the Board of Directors and a majority of the
Shareholders of CCC. The execution and performance of this Agreement will not
constitute a material breach of any agreement, indenture, mortgage, license or
other instrument or document to which CCC is a party and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to CCC or
its properties. The execution and performance of this Agreement will not violate
or conflict with any provision of the Certificate of Incorporation or by-laws of
CCC.
11
3.15 Full Disclosure. No representation or warranty by CCC in this Agreement
or in any document or schedule to be delivered by them pursuant hereto, and no
written statement, certificate or instrument furnished or to be furnished by CCC
pursuant hereto or in connection with the negotiation, execution or performance
of this Agreement contains or will contain any untrue statement of a material
fact or omits or will omit to state any fact necessary to make any statement
herein or therein not materially misleading or necessary to complete and correct
presentation of all material aspects of the business of CCC.
3.16 No Claims Outstanding. CCC represents that it is not subject to any
claims, litigation, or other charges against its assets, has no real estate or
real estate holdings, has no employees, one officer and two directors, serving
without pay, and therefore there can be no OSHA or other personnel claims
outstanding or potentially assertable against the company. Furthermore, there
have been no material changes in the company's position, and the company has
conducted no other business, since January 1, 2000, other than as set forth on
Schedule 3.16, indicating a description of activities since inception of the
corporation.
3.17 Securities Issuances. CCC represents that all of the existing and
outstanding shares were lawfully issued and are dutifully accounted for in the
financial statements and with the company's transfer agent, to be paid by the
combined entity.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions Precedent to the Obligation of PRINT DATA Shareholders. All
obligations of the shareholders under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, as indicated below, of each of
the following conditions:
(a) The representations and warranties by or on
behalf of CCC contained in this Agreement or in any certificate
or document delivered pursuant to the provisions hereof shall be
true in all material respects at and as of Closing Date as though
such representations and warranties were made at and as of such
time.
(b) CCC shall have performed and complied in all
material respects, with all covenants, agreements, and conditions
set forth in, and shall have executed and delivered all documents
required by this Agreement to be performed or complied with or
executed and delivered by them prior to or at the Closing.
(c) On or before the Closing, the Board of
Directors and a majority of the shareholders of CCC shall have
approved, in accordance with Delaware law, the execution,
delivery and performance of this Agreement and the consummation
of the transaction contemplated herein and authorized all of the
necessary and proper action to enable CCC to comply with the
terms of the Agreement.
12
(d) CCC shall have sufficient shares of CCC Common
Stock authorized but unissued to complete the Exchange.
(e) All instruments and documents delivered to
PRINT DATA and the Shareholders pursuant to provisions hereof
shall be reasonably satisfactory to legal counsel for PRINT DATA.
4.2 Conditions Precedent to the Obligations of CCC and CCC Shareholders. All
obligations of CCC under this Agreement are subject to the fulfillment, prior to
or at Closing, of each of the following conditions:
(a) The representations and warranties by PRINT DATA and all
of its shareholders, contained in this Agreement or in any
certificate or document delivered pursuant to the provisions hereof
shall be true in all material respects at and as of the Closing as
though such representations and warranties were made at and as of
such time;
(b) PRINT DATA and its Shareholders shall have performed and
complied with, in all material respects, with all covenants,
agreements, and conditions set forth in, and shall have executed and
delivered all documents required by this Agreement to be performed or
complied or executed and delivered by them prior to or at the
Closing;
SECTION 5. COVENANTS
5.1 Corporate Examinations and Investigations. Prior to the Closing Date,
the parties acknowledge that they have been entitled, through their employees
and representatives, to make such investigation of the assets, properties,
business and operations, books, records and financial condition of the other as
they each may reasonably require. No investigations, by a party hereto shall,
however, diminish or waive any of the representations, warranties, covenants or
agreements of the party under this Agreement.
5.2 Further Assurances. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to the Closing, including, without limitation, the execution
and delivery of any documents or other papers, the execution and delivery of
which are necessary or appropriate to the Closing.
5.3 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, CCC, PRINT DATA and the Shareholders agree to
keep confidential any information disclosed to each other in connection
therewith for a period of one (1) year from the date hereof; provided, however,
such obligation shall not apply to information which:
(i) at the time of the disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge
(except due to the action of the receiving party); or
13
(iii) the receiving party had within its possession at the
time of disclosure; or
(iv) is ordered disclosed by a Court of proper jurisdiction.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Notwithstanding any right of either party to investigate the affairs of the
other party and its Shareholders, each party has the right to rely fully upon
representations, warranties, covenants and agreements of the other party and its
Shareholders contained in this Agreement or in any document delivered to one by
the other or any of their representatives, in connection with the transactions
contemplated by this Agreement. All such representations, warranties, covenants
and agreements shall survive the execution and delivery hereof and the closing
hereunder for one year following the Closing.
SECTION 7. INDEMNIFICATION
For a period of one (1) year from the Closing, PRINT DATA agrees to
indemnify and hold harmless CCC, its officers, directors and principal
shareholders, and CCC agrees to indemnify and hold harmless the PRINT DATA
Shareholders, at all times up to one (1) year after the date of this Agreement
against and in respect of any liability, damage, or deficiency, all actions,
suits, proceedings, demands, assessments, judgments, costs and expenses,
including attorneys' fees, incident to any of the foregoing, resulting from any
material misrepresentation made by any indemnifying party to an indemnified
party, an indemnifying party's breach of a covenant or warranty or an
indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation or omission from any certificate, financial statement
or tax return furnished or to be furnished hereunder for any period up to and
including 120 days after execution of this Agreement. This provision shall not
be construed to be a waiver of any lawful indemnification provision contained in
the charter or By-Laws, as permitted by Federal or State law.
If the indemnified party receives written notice of the commencement of any
legal action, suit or proceeding with respect to which the indemnifying party is
or may be obligated to provide indemnification pursuant to this Section, the
indemnified party shall, within 30 days of the receipt of such written notice,
give the indemnifying party written notice thereof (a "Claim Notice"). Failure
to give such Claim Notice within such 30 day period shall not constitute a
waiver by the indemnified party or its rights to indemnity hereunder with
respect to such action, suit or proceeding unless the defense thereof is
prejudiced thereby. Upon receipt by the indemnifying party of a Claim Notice
from the indemnified party with respect to any claim for indemnification which
is based upon a claim made by a third party ("Third Party Claim"), the
indemnifying party may assume the defense of the Third Party Claim with counsel
of its own choosing, as described below. The indemnified party shall cooperate
in the defense of the Third Party Claim and shall furnish such records,
information and testimony and attend all such conferences, discovery
proceedings, hearings, trials and appeals as may be reasonably required in
connection therewith. The indemnified party shall have the right to employ its
own counsel in any such action, but the fees and expenses of such counsel shall
14
be at the expense of the indemnified party unless the indemnifying party shall
not have with reasonable promptness employed counsel to assume the defense of
the Third Party Claim, in which event such fees and expenses shall be borne
solely by the indemnifying party. The indemnifying party shall not satisfy or
settle any Third Party Claim for which indemnification has been sought and is
available hereunder, without the prior written consent of the indemnified party,
which consent shall not be delayed or which shall not be required if the
indemnified party is granted a release in connection therewith. If the
indemnifying party shall fail with reasonable promptness to defend such Third
Party Claim, the indemnified party may defend, satisfy or settle the Third Party
Claim at the expense of the indemnifying party and the indemnifying party shall
pay to the indemnified party the amount of such Loss within ten days after
written demand thereof. The indemnification provisions hereof shall survive the
termination of this Agreement.
SECTION 8. DOCUMENTS AT CLOSING AND THE CLOSING
8.1 Documents at Closing. At the Closing, the following transactions shall
occur, all of such transactions being deemed to occur simultaneously:
(a) PRINT DATA will deliver, or will cause to be delivered, to
CCC the following:
(i) a certificate executed by the President and Secretary of
PRINT DATA to the effect that all representations and warranties
made by PRINT DATA under this Agreement are true and correct as
of the Closing, the same as though originally given to CCC on
said date;
(ii) a certificate from the State of Delaware dated at or
about the Closing to the effect that PRINT DATA is in good
standing under the laws of said State;
(iii) PRINT DATA and its Shareholders shall deliver an
opinion of its legal counsel, limited as to any portion of the
opinion as to an aspect of the agreement governed by the
application of Delaware law, to CCC to the effect that:
(a) PRINT DATA is a corporation validly
existing and in good standing under the laws of the State
of Delaware and is duly qualified to do business in any
jurisdiction where so required except where the failure to
so qualify would have no material adverse impact on the
company;
(b) PRINT DATA has the corporate power
to carry on its business as now being conducted; and
(c) This Agreement has been duly
authorized, executed and delivered by PRINT DATA.
15
(v) Certificates representing those shares of PRINT DATA to
be exchanged for CCC Shares will be delivered, along with duly
executed powers transferring such certificates to CCC.
(vi) all other items, the delivery of which is a condition
precedent to the obligations of CCC, as set forth in Section 4.
(b) CCC will deliver or cause to be delivered to PRINT DATA and
the PRINT DATA Shareholders:
(i) a certificate from CCC executed by the President or
Secretary of CCC, to the effect that all representations and
warranties of CCC made under this Agreement are true and correct
as of the Closing, the same as though originally given to PRINT
DATA on said date;
(ii) certified copies of resolutions by CCC Board of
Directors authorizing this transaction; and an opinion of CCC
counsel as described in Section 4 above;
(iii) certificates from the Delaware Secretary of State
dated at or about the Closing Date that CCC is in good standing
under the laws of said State;
(iv) an opinion of counsel, limited as to any portion of the
opinion that applies to an aspect governed by the application of
Delaware law, dated as of the Closing to the effect that:
(1) CCC is a corporation validly existing and in good
standing under the laws of the State of Delaware;
(2) This Agreement has been duly authorized executed
and delivered by CCC and is a valid and binding obligation
of CCC enforceable in accordance with its terms;
(3) CCC, through its Board of Directors and its
shareholders, has taken all corporate action necessary for
performance under this Agreement;
(4) The documents executed and delivered to PRINT DATA
and the PRINT DATA Shareholders hereunder are valid and
binding in accordance with their terms;
(5) The shares of CCC Shares to be issued pursuant to
Section 1.1 hereof, when issued, will be duly and validly
issued, fully paid and non-assessable; and
(6) CCC has the corporate power to execute the
Agreement, deliver the Shares and perform under this
Agreement.
(vi) resignation of all officers and all but one of the
directors;
16
(vii) consent of Xxxxxx Xxxx, sole remaining director,
designating Xxxxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxxx Xxxxx to
fill the vacancies created by the resignation of the former
directors of CCC, and simultaineous resignation of Xxxx as a
director.
(viii) all other items, the delivery of which is a condition
precedent to the obligations of PRINT DATA, as set forth in
Section 4 hereof.
8.2 The Closing. The Closing shall take place at the time or place as may be
agreed upon by the parties hereto. At the Closing, the parties shall provide
each other with such documents as may be necessary.
SECTION 9. MISCELLANEOUS
9. 1 Waivers. The waiver of a breach of this Agreement or the failure of any
party hereto to exercise any right under this Agreement shall in no way
constitute waiver as to future breach whether similar or dissimilar in nature or
as to the exercise of any further right under this Agreement.
9.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
9.3 Assignment. This Agreement is not assignable except by operation of law.
9.4 Notice. Until otherwise specified in writing, the mailing addresses and
fax numbers of the parties of this Agreement shall be as follows:
To: CCC:
Xxxxxx X. Xxxx, President
00000 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
with copy to:
Xxxxxxxxx & Associates
00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
To: PRINT DATA:
Xxxxxxx Xxxxx, President
00 Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
17
with copy to:
Xxxxxxxx X. Xxxxxxx, Esq.
Law Offices of Xxxxxxxx X. Xxxxxxx, P.C.
000 Xxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
9.5 Governing Law. This Agreement shall be construed, and the legal
relations between the parties determined, in accordance with the laws of the
State of Delaware, thereby precluding any choice of law rules which may direct
the application of the laws of any other jurisdiction.
9.6 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance by the other party.
9.7 Entire Agreement. This Agreement (including the Exhibits and Schedules
to be attached hereto) and the collateral agreements executed in connection with
the consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the exchange and issuance of the
Shares and the CCC Shares and related transactions, and supersede all prior
agreements, written or oral, with respect thereto.
9.8 Headings. The headings in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
9.9 Severability of Provisions. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or provision
of this Agreement shall in no way affect the validity or enforcement of any
other provision or any part thereof.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
9.11 Binding Effect. This Agreement shall be binding upon the parties hereto
and inure to the benefit of the parties, their respective heirs, administrators,
executors, successors and assigns.
9.12 Tax Treatment. CCC, PRINT DATA and the Majority Shareholders
acknowledge that they each have been represented by their own tax advisors in
connection with this transaction; that none of them has made a representation or
warranty to any of the other parties with respect to the tax treatment accorded
this transaction, or the effect individually or corporately on any party under
the applicable tax laws, regulations, or interpretations; and that no opinion of
counsel or private revenue ruling has been obtained with respect to the effects
of this transaction under the Code.
18
9.13 Lock-up Agreement. Xxxxxx Xxxx agrees to restrict or "lock up" 500,000
shares of common stock, which represents Xxxx'x total holding, that he will or
does currently own, not to be traded for a period of at least 90 days following
the first day of trading on either the "pink sheets" or the Bulletin Board,
whichever occurs first.
9.14 Press Releases. The parties will mutually agree as to the wording and
timing of any informational releases concerning this transaction prior to and
through Closing.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
PRINT DATA CORPORATION
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx,
President
COMBINED COMPANIES CORPORATION
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
------------------
Xxxxxx X. Xxxx,
President
SHAREHOLDER SIGNATURES ON NEXT PAGE
19
"Print Data Shareholders:"
/s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx (75 shares)
/s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx (25 shares)
20
EXHIBIT "A"
LIST OF PRINT DATA SHAREHOLDERS
Number of Shares
Name of Shareholder Approximate Number of Shares of CCC Common
of Percentage of Print Data Stock to be
Print Data of Holding Held Issued
------------------- ---------- --------------- ----------------
Xxxxxxx Xxxxx 75 75 15000000
Xxxxxxx Xxxxx 25 25 5000000
All Shareholders 100 100 20000000
EXHIBITS
A. List of PRINT DATA Shareholders (See table above)
21
SCHEDULES
PRINT DATA Schedules
--------------------
2.3 Exceptions to free and clear ownership of Shares: NONE
2.9 PRINT DATA Consents.
2.10 PRINT DATA Financial Statements: Audited through December 31, 1999 and
unaudited through September 30, 2000
2.15 Claims, Litigation, Government actions pending: See List attached: NONE
2.16 PRINT DATA Significant contracts: NONE
2.18 PRINT DATA List of Real Estate Owned (NONE) and List of Leases
Lease on Office Space with Hopelawn Properties, LLC for corporate
offices, entered into September 15, 1996 (11 months remaining)
2.20 PRINT DATA List of exceptions to the Tangible Assets on balance sheets:
NONE: assets include a truck, 2 vans, one hi-xx xxxx, one power
xxxx, various computer equipment, furniture and fixtures, a phone
system, certain leasehold improvements, racking a photocopy and
fax machine
2.22 PRINT DATA List of undisclosed Liabilities: NONE
2.24 PRINT DATA Warrants, Options and preferred interests currently in
existence: NONE
CCC Schedules
-------------
3.4 CCC Financial Statements
3.5 List of material adverse changes
3.10 List of shareholders from Transfer Agent
3.16 Activities of CCC in previous 3 years
22
