EXHIBIT 10.22
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made and entered into as of
the 30th of September, 2001, by and among the following:
FGFC HOLDINGS, INC., a California corporation (hereinafter "Seller");
EMB CORPORATION, a Hawaii corporation (hereinafter "EMB"); and
FIRST GUARANTY FINANCIAL CORPORATION, a California corporation.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, subject to the terms and conditions of this Agreement, EMB and
Seller desire for EMB to purchase from Seller and for Seller to sell to EMB all
of the outstanding common stock of FIRST GUARANTY FINANCIAL CORPORATION, a
California corporation, (the "FGFC Stock" and "FGFC", respectively); and
WHEREAS, the Board of Directors of EMB deems it desirable and in the best
interests of EMB and its stockholders that EMB purchase the FGFC Stock in
consideration of issuance by EMB to Seller of Five Million (5,000,000) shares of
EMB common stock (the "EMB Shares") and cash in the amount of $500,000.00 as
evidenced by the promissory note of EMB (the "EMB Note"); and
WHEREAS, Seller deems it desirable and in the best interests of Seller that
Seller sell the FGFC Stock to EMB; and
WHEREAS, EMB and Seller desire to provide for certain undertakings,
conditions, representations, warranties, and covenants in connection with the
transactions contemplated by this Agreement; and
WHEREAS, Seller and the Board of Directors of EMB have approved and adopted
this Agreement, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto do hereby agree as follows:
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SECTION 1
DEFINITIONS
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1.1 "Agreement", "EMB", "EMB Note", "EMB Shares", "Seller", "FGFC" and
"FGFC Stock", respectively, shall have the meanings defined in the foregoing
preamble and recitals to this Agreement.
1.2 "Closing Date" shall mean 4:00 p.m., local time, September 30, 2001, at
Santa Ana, California, the date on which the parties hereto shall close the
transactions contemplated herein; provided that the parties can change the
Closing Date and place of Closing to such other time and place as the parties
shall mutually agree, in writing. As of the Closing Date, all Exhibits to this
Agreement shall be complete and attached to this Agreement.
SECTION 2
AGREEMENT FOR PURCHASE AND SALE OF FGFC STOCK
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2.1 Substantive Terms of the Purchase and Sale of FGFC Stock.
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Seller shall sell and deliver to EMB one hundred percent (100%) of the
issued and outstanding common stock of FGFC in a form enabling EMB, then and
there, to become the record and beneficial owner of said common stock,
consisting of ten thousand (10,000) shares which represents all of the issued
and outstanding capital stock of FGFC.
2.2 Consideration Paid by EMB.
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(a) EMB shall deliver to Seller Five Million (5,000,000) shares
of common stock of EMB. The EMB Shares shall be issued pursuant to an
exemption from registration under the Securities Act of 1933 (the
"1933 Act") and from registration under any and applicable state
securities laws and the certificates representing the EMB Shares shall
bear the restrictive legend set forth in Rule 144 of the Rules and
Regulation of the 1933 Act and any appropriate legend required under
applicable state securities laws. The EMB Shares shall be validly
issued and outstanding, fully paid, and non-assessable.
(b) EMB shall also deliver to Seller the EMB Note in the initial
principal amount of Five Hundred Thousand Dollars ($500,000.00) made
payable to Seller. The EMB Note shall bear interest at the rate of ten
percent (10%) per annum, with the entire principal balance and accrued
interest thereon being due and payable, in full, on September 30,
2003. The EMB Note shall be in the form attached hereto as Exhibit
"2.2(b)(1)". The performance by EMB of its obligations under the EMB
Note shall be secured by the FGFC Stock and the FGFC Preferred Shares,
to be issued pursuant to Paragraph 2.2(e) hereof, as further described
in the provisions of the Security Agreement to be entered into as of
the Closing Date by and between EMB and Seller (hereinafter referred
to as the "Security Agreement"), in form attached hereto as Exhibit
"2.2(b)(2)".
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(c) Following the Closing Date, FGFC will become a wholly-owned
and operated subsidiary of EMB. Xxxxxx X. Xxxxxxxx, President of FGFC,
shall (i) continue to serve as President of FGFC with his existing
employment contract with FGFC being extended for a period of three (3)
years, and (ii) be named to the Board of Directors of EMB at the
earliest practicable date.
(d) As additional consideration for the acquisition of the FGFC
Stock by EMB, EMB agrees that, under circumstances, additional shares
of EMB Common Stock may be issued to Seller, as follows: On October 1,
2002 (the "Valuation Date"), the value of the EMB Shares shall be
determined by multiplying the number of EMB Shares, as may be adjusted
by forward and reverse splits of the EMB common stock subsequent to
the date of this Agreement, but prior to the Valuation Date, by the
fair market value of one share of EMB common stock, as determined in
the manner set forth in this Paragraph. If, as of the Valuation Date,
the common stock of EMB is traded on a national securities exchange or
the NASDAQ Stock Market, then the fair market value of one share of
EMB common stock shall be the average of the closing selling prices of
the EMB common stock as reported by such exchange or as reported on
the NASDAQ Stock Market for the five trading days immediately
preceding the Valuation Date, or if there were no sales of EMB common
stock during such five-day period, then the fair market value of one
share of EMB common stock shall be deemed to be the closing selling
price of the EMB common stock as reported by such exchange or as
reported on the NASDAQ Market System for the next prior day on which
there were sales of EMB common stock. If, as of the Valuation Date,
EMB common stock is traded other than on a national securities
exchange or the NASDAQ Stock Market, then the fair market value of one
share of EMB common stock shall be the average of the closing bid and
asked prices of a share of EMB common stock on the Valuation Date as
quoted on the OTC Bulletin Board or the Pink Sheets, as relevant, for
the five trading days immediately preceding the Valuation Date or, if
there is no bid and asked price during such five-day period, the fair
market value of one share of EMB common stock shall be deemed to the
average of the closing bid and asked prices of EMB common stock as
quoted on the OTC Bulletin Board or the Pink Sheets, as relevant, for
the next prior trading day on which there was a bid and asked price.
If no such bid and asked price is available, the Board of Directors of
EMB shall make a good faith determination of the fair market value of
one share of EMB common stock using any reasonable method of
valuation. Subject to the provisions set forth in this paragraph, if,
as of the Valuation Date, pursuant to such method of computation, the
EMB Shares are valued at less than $5,000,000, EMB shall issue to
Seller additional restricted shares of EMB common stock (the
"Additional EMB Shares"), such that the aggregate value of the EMB
Shares and the Additional EMB Shares will, as of the Valuation Date,
be not less than $5,000,000. The restrictions on the Additional EMB
Shares shall be identical in scope and in time as the restrictions on
the EMB Shares.
(e) In connection with the acquisition of the FGFC Stock by EMB,
EMB shall issue to FGFC 4,000,000 shares of EMB's Series E Convertible
Preferred Stock ("EMB Preferred Shares") in exchange for 100,000
shares of FGFC Series A Convertible Preferred Stock ("FGFC Preferred
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Shares"). The FGFC Preferred Shares shall also be subject to the
provisions of the Security Agreement. The rights, privileges,
preferences and restrictions relating to the EMB Preferred Shares and
the FGFC Preferred Shares are set forth in the respective documents
entitled "Certificate of Designation" for the EMB Preferred Shares, a
copy of which is attached hereto as "Exhibit 2.2(e)(1)" and the
"Certificate of Determination" for the FGFC Preferred Shares, a copy
of which is attached hereto as "Exhibit 2.2(e)(2)".
(f) As additional, consideration for the acquisition of the FGFC
Stock by EMB, EMB shall provide $1,000,000 of additional equity to be
contributed to FGFC during the twelve-month period ended September 30,
2002. Subject to mutual agreement by the Board of Directors of EMB and
FGFC, the EMB Preferred Shares to be issued to FGFC pursuant to
Paragraph 2.2(e), may be deemed to satisfy part or all of this
obligation.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF EMB
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EMB, in order to induce Seller to execute this Agreement and to consummate
the transactions contemplated herein, represents and warrants to Seller, as
follows:
3.1 Organization and Qualification. EMB is a corporation duly organized,
validly existing, and in good standing under the laws of Hawaii, with all
requisite power and authority to own its property and to carry on its business
as it is now being conducted. EMB is duly qualified as a foreign corporation and
in good standing in each jurisdiction where the ownership, lease, or operation
of property or the conduct of business requires such qualification, except where
the failure to be in good standing or so qualified would not have a material,
adverse effect on the financial condition or business of EMB.
3.2 Ownership of EMB. EMB is authorized to issue two classes of stock of up
to 30,000,000 common shares, no par value per share, of which approximately
11,706,044 are currently issued and outstanding, and of up to 5,000,000
preferred shares, no par value per share, of which 500,000 shares of Series E
are currently issued and outstanding.
3.3 Authorization and Validity. EMB has the requisite power and is duly
authorized to execute and deliver and to carry out the terms of this Agreement.
The board of directors and stockholders of EMB have taken all action required by
law, its Articles of Incorporation and Bylaws, both as amended, or otherwise to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, subject to the satisfaction or waiver of
the conditions precedent set forth in Section 8 of this Agreement. Assuming this
Agreement has been approved by all action necessary on the part of Seller, this
Agreement is a valid and binding agreement of EMB.
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3.4 No Defaults. EMB is not in default under or in violation of any
provision of its Articles of Incorporation or Bylaws, both as amended. EMB is
not in default under or in violation of any material provision of any indenture,
mortgage, deed of trust, lease, loan agreement, or other agreement or instrument
to which it is a party or by which it is bound or to
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which any of its is subject, if such default would have a material, adverse
effect on the financial condition or business of EMB. EMB is not in violation of
any statute, law, ordinance, order, judgment, rule, regulation, permit,
franchise, or other approval or authorization of any court or governmental
agency or body having jurisdiction over it or any of its properties which, if
enforced, would have a material, adverse effect on the financial condition or
business of EMB. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will conflict with or
result in a breach of or constitute a default under any of the foregoing or
result in the creation of any lien, mortgage, pledge, charge, or encumbrance
upon any asset of EMB and no consents or waivers thereunder are required to be
obtained in connection therewith in order to consummate the transactions
contemplated by this Agreement.
3.5 SEC Documents; Financial Statements. As of the Closing, the Company has
filed all reports, schedules, forms, statements and other documents required to
be filed by it with the SEC pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act") (all of the
foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by
reference therein being hereinafter referred to as the "SEC Documents"). As of
their respective dates, the SEC Documents substantially complied in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the SEC promulgated thereunder applicable to the SEC Documents, and none of the
SEC Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. As of their
respective dates, the financial statements of the Company included in the SEC
Documents substantially complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto. Such financial statements have been prepared in
substantial accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the Company to
the Buyers which is not included in the SEC Documents, including, without
limitation, contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstance under which they are or were made, not misleading.
Neither the Company nor any of its officers, directors, employees or agents have
provided the Buyers with any material, nonpublic information.
3.6 Absence of Certain Changes. Since the most recent filing by the Company
with the SEC, there has been no material adverse change and no material adverse
development in the business, properties, operations, financial condition,
results of operations or prospects of the Company. The Company has not taken any
steps, and does not currently expect to take any steps, to seek protection
pursuant to any bankruptcy law nor does the Company have any knowledge or reason
to believe that its creditors intend to initiate involuntary bankruptcy
proceedings.
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3.7 Documents. The copies of all agreements and other instruments that have
been delivered by EMB to Seller are true, correct, and complete copies of such
agreements and instruments and include all amendments thereto.
3.8 Disclosure. The representations and warranties made by EMB herein and
in any schedule, statement, certificate, or document furnished or to be
furnished by EMB to Seller pursuant to the provisions hereof or in connection
with the transactions contemplated hereby, taken as a whole, do not and will not
as of their respective dates contain any untrue statements of a material fact,
or omit to state a material fact necessary to make the statements made not
misleading.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller, in order to induce EMB to execute this Agreement and to consummate
the transactions contemplated herein, represents and warrants to EMB as follows:
4.1 Organization and Qualification. FGFC is a California corporation, duly
organized, validly existing, and in good standing under the laws of the state of
California with all requisite power and authority to own its property and assets
and to carry on its business as it is now being conducted. FGFC is qualified as
a foreign corporation and is in good standing in each jurisdiction where the
ownership, lease, or operation of property or the conduct of its business
requires such qualification, except where the failure to be in good standing or
so qualified would not have a material, adverse effect on the financial
condition and business of FGFC. With respect to those states in which FGFC
presently conducts business as a mortgage lender, FGFC is duly licensed or
approved to do business as a mortgage lender in each jurisdiction in which such
licensing or approval is required.
4.2 Ownership of FGFC Stock. FGFC is authorized to issue one class of
stock, of up to One Hundred Thousand (100,000) shares of common stock, no par
value per share, and One Hundred Thousand (100,000) shares of preferred stock,
no par value per share. At the date hereof, Ten Thousand (10,000) shares of
common have been validly issued and are outstanding, fully paid, and
non-assessable. All of the shares of common stock are owned of record and
beneficially by Seller. At the date hereof, no shares of preferred stock are
issued or outstanding. There are no options, warrants, or other securities
exercisable or convertible into or any calls, commitments, or agreements of any
kind relating to any unissued equity securities of FGFC.
4.3 Authorization and Validity. Seller has the requisite power and is duly
authorized to execute and deliver and to carry out the terms of this Agreement.
Assuming this Agreement has been approved by all action necessary on the part of
EMB, this Agreement is a valid and binding agreement of Seller.
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4.4 Conduct and Transactions of FGFC. During its current fiscal year, FGFC
conducted the operations of its business consistent with past practice and used
its best efforts to maintain and preserve its properties, key employees, and
relationships with customers and suppliers. Without limiting the foregoing,
during such period FGFC did not:
(a) Incur any liabilities except to maintain its facilities and assets
in the ordinary course of its business;
(b) Declare or pay any dividends on any shares of capital stock or
make any other distribution of assets to the holders thereof;
(c) Issue, reissue, or sell, or issue options or rights to subscribe
to, or enter into any contract or commitment to issue, reissue, or sell,
any shares of capital stock or acquire or agree to acquire any shares of
capital stock;
(d) Amend its respective Articles of Incorporation or Bylaws or merge
or consolidate with or into any other corporation or sell all or
substantially all of its assets or change in any manner the rights of its
capital stock or other securities;
(e) Pay or incur any obligation or liability, direct or contingent,
except in the ordinary course of its business;
(f) Incur any indebtedness for borrowed money, assume, guarantee,
endorse, or otherwise become responsible for obligations of any other
party, or make loans or advances to any other party except in the ordinary
course of its business;
(g) Increase in any manner the compensation, direct or indirect, of
any of its officers or executive employees, except as otherwise disclosed
in Exhibit 4.5(g), hereto; or
(h) Make any capital expenditures except in the ordinary course of its
business.
4.5 Compensation Due Employees. FGFC will not have any outstanding
liability for payment of wages, payroll taxes, vacation pay (whether accrued or
otherwise), salaries, bonuses, pensions, contributions under any employee
benefit plans or other compensation, current or deferred, under any labor or
employment contracts, whether oral or written, based upon or accruing in respect
of those services of employees of FGFC that have been performed prior to the
Closing Date, except as specified on Exhibit 4.7 hereto. On the Closing Date,
FGFC will not have any unfunded, contingent or other liability under any defined
benefits plan or any other retirement or retirement-type plan, whether such
plan(s) are to continue or are thereupon terminated, except for the normal
on-going obligations for future contributions under such plan(s) not related,
generally or specifically, to the termination of such plan(s) or except as
specified on Exhibit 4.5 hereto.
4.6 Union Agreements and Employment Agreements. FGFC is not a party to any
union agreement or any organized labor dispute. FGFC has no written or verbal
employment agreements with any of its employees, except as listed in Exhibit 4.6
hereto.
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4.7 Contracts and Leases. Except as listed in Exhibit 4.7 hereto, FGFC is
not a party to any written or oral leases, commitments, or any other agreements.
On the Closing Date, FGFC has paid or performed in all material respects all
obligations required to be paid or performed by it to such date and will not be
in default under any document, contract, agreement, lease, or other commitment
to which it is a party.
4.8 Insurance. All insurance against losses or damages or other risks which
are in force for the benefit of FGFC are set forth in Exhibit 4.8 hereto.
4.9 Liabilities. FGFC has no liabilities, except as described in Exhibit
4.9 hereto.
4.10 Proprietary Rights. FGFC owns or is duly licensed to use such
trademarks and copyrights as are necessary to conduct its business as presently
conducted. The conduct of business by FGFC does not, to the best knowledge of
FGFC, infringe upon the trademarks or copyrights of any third party. FGFC owns
the rights to the fictitious business name in all jurisdictions in which it is
presently operating.
4.11 Internal Controls.
(a) There have been no transactions except in accordance with
management's general or specific authorization.
(b) FGFC has devised and maintained respective systems of internal
accounting controls sufficient to provide reasonable assurances that
transactions are recorded as necessary (I) to permit preparation of
financial statements in conformity with generally accepted accounting
principles and (ii) to maintain accountability for assets and expenses.
4.12 Contracts and Agreements. FGFC is not a party to any material
contracts or agreements in respect of the operation of its business, except as
listed in Exhibit 4.12 hereto.
4.13 Minute Books. The minute books of FGFC contain true, complete, and
accurate records of all meetings and other corporate actions of its shareholders
and Board of Directors, and true and accurate copies thereof have been delivered
to counsel for EMB prior to the Closing Date. The signatures appearing on all
documents contained therein are the true signatures of the persons purporting to
have signed the same.
4.14 Litigation. Except as set forth in Exhibit 4.14, there are no actions,
suits, proceedings, orders, investigations, or claims (whether or not
purportedly on behalf of FGFC) pending against or affecting FGFC at law or in
equity or before or by any federal, state, municipal, or other governmental
department, commission, board, agency, or instrumentality, domestic or foreign,
nor has any such action, suit, proceeding, or investigation been pending or
threatened in writing during the 12-month period preceding the date hereof,
which, if adversely determined, would materially and adversely affect the
financial condition of FGFC or which seeks to prohibit, restrict, or delay the
consummation of the stock sale contemplated hereby. FGFC is not operating under
or subject to, or in default with respect to, any order, writ, injunction, or
decree of any court or federal, state, municipal, or other governmental
department, commission, board, agency, or instrumentality.
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4.15 Taxes. At the Closing Date, all tax returns required to be filed with
respect to the operations or assets of each of FGFC prior to Closing Date have
been correctly prepared in all material respects and timely filed, and all taxes
required to be paid in respect of the periods covered by such returns have been
paid in full or adequate reserves have been established for the payment of such
taxes. Except as set forth in Exhibit 4.15, as of the Closing Date, FGFC has not
requested any extension of time within which to file any tax returns, and all
known deficiencies for any tax, assessment, or governmental charge or duty shall
have been paid in full or adequate reserves have been established for the
payment of such taxes. The FGFC Tax Returns are true and complete in all
material respects. No audits by federal or state authorities are currently
pending or threatened.
4.16 No Defaults. FGFC is not in default under or in violation of any
provision of its Articles of Incorporation or Bylaws. FGFC is not in default
under or in violation of any material provision of any indenture, mortgage, deed
of trust, lease, loan agreement, or other agreement or instrument to which it is
a party or by which it is bound or to which any of its is subject, if such
default would have a material, adverse effect on the financial condition or
business of FGFC. FGFC is not in violation of any statute, law, ordinance,
order, judgment, rule, regulation, permit, franchise, or other approval or
authorization of any court or governmental agency or body having jurisdiction
over it or any of its properties which, if enforced, would have a material,
adverse effect on the financial condition or business of FGFC. Neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated herein, will conflict with or result in a breach of or
constitute a default under any of the foregoing or result in the creation of any
lien, mortgage, pledge, charge, or encumbrance upon any asset of FGFC and no
consents or waivers thereunder are required to be obtained in connection
therewith in order to consummate the transactions contemplated by this
Agreement.
4.17 Documents. The copies of all agreements and other instruments that
have been delivered by Seller to EMB are true, correct, and complete copies of
such agreements and instruments and include all amendments thereto.
4.18 Disclosure. The representations and warranties made by Seller herein
and in any schedule, statement, certificate, or document furnished or to be
furnished by FGFC and/or Seller to EMB pursuant to the provisions hereof or in
connection with the transactions contemplated hereby taken as a whole do not and
will not as of their respective dates contain any untrue statements of a
material fact, or omit to state a material fact necessary to make the statements
made not misleading.
SECTION 5
INVESTIGATION; PRESS RELEASE
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5.1 Investigation.
(a) EMB acknowledges that it has made an investigation of FGFC to
confirm, among other things, the assets, liabilities, and status of
business of FGFC and the cash position, accounts receivable, liabilities,
and mortgages in process. In the event of termination of this Agreement,
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EMB will deliver to Seller all documents, work papers, and other materials
and all copies thereof obtained by EMB, or on its behalf, from FGFC or
Seller, whether obtained before or after the execution hereof, will not
use, directly or indirectly, any confidential information obtained from
FGFC or Seller hereunder or in connection herewith, and will keep all such
information confidential and not used in any way detrimental to FGFC or
Seller except to the extent the same is publicly disclosed by FGFC or
Seller.
(b) Seller acknowledges that it has made an investigation of EMB,
which has included, among other things, the opportunity of discussions with
executive officers of EMB, and its accountants, investment bankers, and
counsel. In the event of termination of this Agreement, Seller will deliver
to EMB all documents, work papers, and other materials and all copies
thereof obtained by it, or on its behalf, from EMB, whether obtained before
or after the execution hereof and will not use, directly or indirectly, any
confidential information obtained from EMB hereunder or in connection
herewith, and will keep all such information confidential and not used in
any way detrimental to EMB, except to the extent the same is publicly
disclosed by EMB.
(c) Except in the event that any party hereto discovers in the course
of its respective investigation any breach of a representation or warranty
by the other party hereto and does not disclose it to such other party
prior to the Closing Date, no investigation pursuant to this Section 5.1
shall affect or be deemed to modify any representation or warranty made by
any party hereto.
5.2 Press Release. EMB and Seller shall agree with each other as to the
form and substance of any press releases and the filing of any documents with
any federal or state agency related to this Agreement and the transactions
contemplated hereby and shall consult with each other as to the form and
substance of other public disclosures related thereto; provided, however, that
nothing contained herein shall prohibit either party from making any disclosure
that its counsel deems necessary.
SECTION 6
BROKERAGE
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6.1 Brokers and Finders. Except as set forth in Exhibit 6.1, neither EMB
nor Seller, or any of their respective officers, directors, employees, or
agents, has employed any broker, finder, or financial advisor or incurred any
liability for any fee or commissions in connection with initiating the
transactions contemplated herein. Each party hereto agrees to indemnify and hold
the other party harmless against or in respect of any commissions, finder's
fees, or brokerage fees incurred or alleged to have been incurred with respect
to initiating the transactions contemplated herein as a result of any action of
the indemnifying party.
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SECTION 7
CLOSING AGREEMENTS AND POST-CLOSING
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7.1 Closing Agreements. On the Closing Date, the following activities shall
occur, the following agreements shall be executed and delivered, and the
respective parties thereto shall have performed all acts that are required by
the terms of such activities and agreements to have been performed
simultaneously with the execution and delivery thereof as of the Closing Date:
(a) Seller shall have executed and delivered documents to EMB
sufficient then and there to transfer record and beneficial ownership to
EMB of the FGFC Stock, consisting up 10,000 shares of common stock of FGFC;
(b) EMB shall have delivered to Seller the EMB Shares, consisting up
Five Million (5,000,000) shares of EMB common stock;
(c) EMB shall have delivered the duly executed EMB Note to Seller;
(d) Seller and EMB shall have executed the Security Agreement and the
Collateral Agent Agreement;
(e) EMB shall have delivered to FGFC the EMB Preferred Shares,
consisting of Two Million (2,000,000) shares of EMB Series E Convertible
Preferred Stock; and
(f) FGFC shall have delivered to EMB the FGFC Preferred Shares,
consisting of One Hundred Thousand (100,000) shares of FGFC Series A
Convertible Preferred Stock.
SECTION 8
CONDITIONS PRECEDENT TO EMB'S OBLIGATIONS TO CLOSE
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The obligations of EMB to consummate this Agreement are subject to
satisfaction on or prior to the Closing Date of the following conditions:
8.1 Representations and Warranties. The representations and warranties of
Seller contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date, and Seller shall have performed in all
material respects all of his obligations hereunder theretofore to be performed.
8.2 Other. The joint conditions precedent in Section 10 hereof shall have
been satisfied and all documents required for Closing shall be acceptable to
Counsel for EMB.
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SECTION 9
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS TO CLOSE
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The obligation of Seller to consummate this Agreement is subject to the
satisfaction on or prior to the Closing Date of the following conditions:
9.1 Representations and Warranties. The representations and warranties of
EMB contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date, and EMB shall have performed in all
material respects all of its obligations hereunder theretofore to be performed.
9.2 Other. The joint conditions precedent in Section 10 hereof shall have
been satisfied.
SECTION 10
JOINT CONDITIONS PRECEDENT
--------------------------
The obligations of EMB and Seller to consummate this Agreement shall be
subject to satisfaction or waiver in writing by all parties of each and all of
the following additional conditions precedent at or prior to the Closing Date:
10.1 Other Agreements. All of the agreements contemplated by Section 7.1 of
this Agreement shall have been executed and delivered, and all acts required to
be performed thereunder as of the Closing Date shall have been duly performed,
including, without limitation, completion of all exhibits to this Agreement.
10.2 Absence of Litigation. At the Closing Date, there shall be no action,
suit, or proceeding pending or threatened against any of the parties hereto by
any person, governmental agency, or subdivision thereof, nor shall there be
pending or threatened any action in any court or administrative tribunal, which
would have the effect of inhibiting the consummation of the transactions
contemplated herein.
SECTION 11
CONFIDENTIALITY
---------------
11.1 EMB acknowledges that its principals have, and will, acquire
information and materials from Seller and/or FGFC and knowledge about the
technology, business, products, strategies, customers, clients and suppliers of
the FGFC and that all such information, materials and knowledge acquired, are
and will be trade secrets and confidential and proprietary information of FGFC
(collectively, such acquired information, materials, and knowledge are the
"Confidential Information"). EMB, itself, and behalf of its principals,
covenants to hold such Confidential Information in strict confidence, not to
disclose it to others or use it in any way, commercially or otherwise, except in
connection with the transactions contemplated by this Agreement and not to allow
any unauthorized person access to such Confidential Information.
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11.2 The Confidential Information disclosed by the Seller or FGFC to EMB
shall remain the property of the disclosing party.
11.3 EMB, and principals, shall maintain in secrecy all Confidential
Information disclosed to them by Seller or FGFC using not less than reasonable
care. EMB, and its principals, shall not use or disclose in any manner to any
third party any Confidential Information without the express written consent of
the Seller unless or until the Confidential Information is:
(a) publicly available or otherwise in the public domain; or
(b) rightfully obtained by any third party without restriction; or
(c) disclosed by Seller or FGFC without restriction pursuant to
judicial action, or government regulations or other requirements.
11.4 The obligations of EMB under Sections 11.1, 11.2, and 11.3 of this
Agreement shall expire one year from the date hereof as to Confidential
Information consisting of commercial and financial information and two years
from the date hereof as to Confidential Information consisting of technical
information. For this purpose, technical information shall include without
limitation all developments, inventions, innovations, designs, discoveries,
trade secrets and know-how, whether or not patentable or copyrightable.
SECTION 12
TERMINATION AND WAIVER
----------------------
12.1 Termination. This Agreement may be terminated and abandoned on the
Closing Date by:
(a) the mutual consent in writing of the parties hereto;
(b) EMB, if the conditions precedent in Sections 8 and 10 of this
Agreement have not been satisfied or waived by the Closing Date; and
(c) Seller, if the conditions precedent in Sections 9 and 10 of this
Agreement have not been satisfied or waived by the Closing Date.
If this Agreement is terminated pursuant to Section 12.1, the parties
hereto shall not have any further obligations under this Agreement, and each
party shall bear all costs and expenses incurred by it.
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SECTION 13
NATURE AND SURVIVAL OF REPRESENTATIONS, ETC.
--------------------------------------------
13.1 All statements contained in any certificate or other instrument
delivered by or on behalf of EMB or Seller pursuant to this Agreement or in
connection with the transactions contemplated hereby shall be deemed
representations and warranties by such party. All representations and warranties
and agreements made by EMB or Seller in this Agreement or pursuant hereto shall
survive the Closing Date hereunder until the expiration of the 12th month
following the Closing Date.
SECTION 14
MISCELLANEOUS
-------------
14.1 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if written and delivered in person or sent
by registered mail, postage prepaid, addressed as follows:
to Seller: FGFC Holdings, Inc.
Attn: Xxxxxx X. Xxxxxxxx
0 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
To FGFC: First Guaranty Financial Corporation
Attn: Xxxxxx X. Xxxxxxxx
0 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
to EMB: EMB Corporation
Attention: Chief Executive Officer
0000 Xxxxxx Xxxxxx
Xxxxx X
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
copy to: Xxxxx Xxxx LLP
(which shall not Attention: Xxxxxxx X. Xxxx, Esq.
Constitute notice) 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
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or such other address as shall be furnished in writing by the appropriate
person, and any such notice or communication shall be deemed to have been given
as of the date so mailed.
14.2 Time of the Essence. Time shall be of the essence of this Agreement.
14.3 Costs. Each party will bear the costs and expenses incurred by it in
connection with this Agreement and the transactions contemplated hereby.
14.4 Cancellation of Agreement. In the event that this Agreement is
canceled by mutual agreement of the parties or by failures of any of the
conditions precedent set forth in Paragraphs 8, 9 and 10, neither Seller nor EMB
shall be entitled to any damages, fees, costs or other consideration.
14.5 Entire Agreement and Amendment. This Agreement and documents delivered
at the Closing Date hereunder contain the entire agreement between the parties
hereto with respect to the transactions contemplated by this Agreement and
supersedes all other agreements, written or oral, with respect thereto. This
Agreement may be amended or modified in whole or in part, and any rights
hereunder may be waived, only by an agreement in writing, duly and validly
executed in the same manner as this Agreement or by the party against whom the
waiver would be asserted. The waiver of any right hereunder shall be effective
only with respect to the matter specifically waived and shall not act as a
continuing waiver unless it so states by its terms.
14.6 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be deemed to constitute an original and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other party.
14.7 Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of California.
14.8 Attorneys' Fees and Costs. In the event any party to this Agreement
shall be required to initiate legal proceedings to enforce performance of any
term or condition of this Agreement, including, but not limited to, the
interpretation of any term or provision hereof, the payment of moneys or the
enjoining of any action prohibited hereunder, the prevailing party shall be
entitled to recover such sums, in addition to any other damages or compensation
received, as will reimburse the prevailing party for reasonable attorneys' fees
and court costs incurred on account thereof (including, without limitation, the
costs of any appeal) notwithstanding the nature of the claim or cause of action
asserted by the prevailing party.
14.9 Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors, and assigns, as the case may be.
14.10 Access to Counsel. Each party hereto acknowledges that each has had
access to legal counsel of her or its own choice and has obtained such advice
therefrom, if any, as such party has deemed necessary and sufficient prior to
the execution hereof. Each party hereto acknowledges that the drafting of this
Agreement has been a joint effort and any ambiguities or interpretative issues
that may arise from and after the execution hereof shall not be decided in favor
or, or against, any party hereto because the language reflecting any such
ambiguities or issues may have been drafted by any specific party or her or its
counsel.
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14.11 Captions. The captions appearing in this Agreement are inserted for
convenience of reference only and shall not affect the interpretation of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EMB CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
Chairman and CEO
"EMB"
FGFC HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
President
"Seller"
FIRST GUARANTY FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
President
"FGFC"
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