Exhibit 99.1 Stock Purchase Agreement
STOCK PURCHASE AGREEMENT
BY AND AMONG
FIRST CAPITAL PARTNERS, MM, INC.
AND
XXXXX XXXXXX
AND
XXX XXXXXX
AND
XXXX XXXXXXX
DATED NOVEMBER 6, 2001
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made this
6th day of November, 2001, by and among First Capital Partners, MM,
Inc., a Nevada corporation (the "Buyer"); Xxxxxx Tree Construction,
Inc., a Nevada corporation ("JTC" or the "Company"); Xxx Xxxxxx, an
individual, Xxxxx Xxxxxx, an individual, and Xxxx Xxxxxxx, an
individual, (each individually, a "Seller", and collectively, the
"Sellers"), being the majority Shareholders of the Company.
W I T N E S S E T H
WHEREAS, the Buyer wishes to purchase from Sellers, and
Sellers wish to sell to the Buyer, shares of the securities of the
Company owned by them.
N O W T H E R E F O R E,
In consideration of the foregoing and the mutual covenants,
agreements and warranties herein contained, the parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
The following terms shall have the following meanings for the
purposes of this Agreement:
"Affiliate" means, with respect to any specified Person,
(a) any other Person which, directly or indirectly, owns or
controls, is under common ownership or control with, or is owned or
controlled by, such specified Person;
(b) any other Person which is a director, officer or partner
or is, directly or indirectly, the beneficial owner of 10 percent
or more of any class of equity securities of the specified Person
or a Person described in clause (a) of this paragraph;
(c) another Person of which the specified Person is a
director, officer or partner or is, directly or indirectly, the
beneficial owner of 10 percent or more of any class of equity
securities; or
(d) any relative or spouse of the specified Person or any of
the foregoing Persons.
"Auditor" means Xxxxxx Xxxxxxxx, Certified Public Accountant,
0000 Xxxx Xxxxxx Xxx Xx. 000, Xxx Xxxxx, Xxxxxx 00000,
Telephone: (000)-000-0000, Facsimile: (000) 000-0000.
"Business Day" means any day of the year other than
(a) any Saturday or Sunday, or
(b) any day which is a Legal Holiday as declared to be such
by federal law.
"Buyer Confidential Information" means all confidential information
concerning the Buyer or its Affiliates that
(a) is not and has not become ascertainable or obtainable from
public or published information,
(b) is not received from a third party or is received from a
third party pursuant to the authorization of the Buyer,
(c) was not in the Company's or in the Seller's possession
prior to disclosure thereof to the Sellers or the Company in
connection with the transactions contemplated herein, and
(e) was not independently developed by the Company or by the
Seller.
"Cash Amounts" has the meaning set forth in Section 2.1(b).
"Claim" has the meaning set forth in Section 10.2.
"Closing" means the consummation(s) of the transactions
contemplated herein.
"Closing Date" means the date on which the Closing occurs.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Company Confidential Information" means all confidential
information concerning the Company or its Affiliates that
(a) is not and has not become ascertainable or obtainable
from public or published information,
(b) is not received from a third-party or is received from a
third-party pursuant to the authorization of the Company or the
Sellers in connection with the Buyer's due diligence review of the
Company,
(c) was not in the Buyer's possession prior to disclosure
thereof to the Buyer in connection with the transactions
contemplated herein, and
(d) was not independently developed by the Buyer.
"Company Adverse Change" means a change (or circumstance involving
a prospective change) in the business, operations, assets,
liabilities, results of operations, cash flows, condition
(financial or otherwise) or prospects of the Company which the
Buyer deems to be adverse.
"Company Adverse Effect" means an effect (or circumstance involving
a prospective effect) on the business, operations, assets,
liabilities, results of operations, cash flows, condition
(financial or otherwise) or prospects of the Company which the
Buyer deems to be adverse.
"Contract" means any contract, lease, commitment, understanding,
sales order, purchase order, agreement, indenture, mortgage, note,
bond, right, warrant, instrument, plan, permit or license, whether
written or oral.
"Dollars" or numbers preceded by the symbol "$" means amounts in
United States Dollars.
"Environmental Law" means any law which relates to or otherwise
imposes liability or standards of conduct concerning mining or
reclamation of mined land, discharges, emissions, releases or
threatened releases of noises, odors or any pollutants,
contaminants or hazardous or toxic wastes, substances or materials,
whether as matter or energy, into ambient air, water, or land, or
otherwise relating to the manufacture, processing, generation,
distribution, use, treatment, storage, disposal, cleanup, transport
or handling of pollutants, contaminants, or hazardous or toxic
wastes, substances or materials, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 and the Superfund Amendments and Reauthorization Act of
1986 (together, as amended, "CERCLA"), the Resource Conservation
and Recovery Act of 1976, as amended, the Toxic Substances Control
Act of 1976, as amended, the Federal Water Pollution Control Act
Amendments of 1972, the Clean Water Act of 1977, as amended, any so-
called "Superlien" law, and any other similar federal, state or
local Law.
"Environmental Permit" means any permit, license, approval, consent
or other authorization required by or pursuant to any applicable
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Existing Borrowing" means all borrowing from lending institutions,
vendors or agencies of federal, state or local governments or their
political subdivisions, as set forth on the Financial Statements or
in the books and records of the Company.
"Financial Statements" means, and includes, all of the following:
(a) the audited financial statements of the Company as of
December 31, 2000, (including all schedules and notes thereto),
consisting of the balance sheet at such date and the related
statements of income and expenses, retained earnings, changes in
financial position and cash flows for the twelve-month period then
ended, which shall be prepared in accordance with GAAP and the
SEC's Regulation S-B;
(b) the unaudited financial statements of the Company as of
June 30, 2001, (including all schedules and notes thereto),
consisting of the balance sheet at such date and the related
statements of income and expenses, retained earnings, changes in
financial position and cash flows for the twelve-month period then
ended, which shall be prepared in accordance with GAAP and the
SEC's Regulation S-B (the "Latest Company Financial Statements") ;
and, in addition
(d) any other financial statements issued by the Company.
"GAAP" means United States generally accepted accounting principles
at the time in effect.
"Governmental Authority" means the government of the United States
or any foreign country or any state or political subdivision
thereof and any entity, body or authority exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Group" shall collectively mean all affiliated groups of
corporations of which the Company is or has been a member that have
filed any consolidated Tax Returns for any period ending on or
before the Closing Date for which the statute of limitations has
not yet expired.
"Hazardous Material" means any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material or substance
within the meaning of any applicable Law (including consent decrees
and administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as now or at any time hereafter
in effect.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated
thereunder.
"Indemnified Person" means the Buyer, and its Officers, Directors,
and Shareholders, or those other Persons entitled to, or claiming a
right to, indemnification.
"Indemnifying Person" means the Seller.
"Latest Financial Statements" means the unaudited financial
statements of the Company as of June 30, 2001, (including all
schedules and notes thereto), consisting of the balance sheet at
such date and the related statements of income and expenses,
retained earnings, changes in financial position and cash flows for
the twelve-month period then ended, which shall be prepared in
accordance with GAAP and the SEC's Regulation S-B;
"Latest Financial Statements Date" means the date of the Latest
Financial Statements.
"Law" or "Laws" means any law, statute, regulation, ordinance,
rule, order, decree, judgment, consent decree, settlement agreement
or governmental requirement enacted, promulgated, entered into,
agreed or imposed by any Governmental Authority.
"Lien" means any mortgage, lien, charge, restriction, pledge,
security interest, option, lease or sublease, claim, right of any
third party, easement, encroachment or encumbrance.
"Loss" or "Losses" means any and all liabilities, losses, costs,
claims, damages (including consequential damages), penalties and
expenses (including attorneys' fees and expenses and costs of
investigation and litigation). ["Losses" also include liabilities
for taxes that have become due and payable or which have accrued
with respect to the Company that have not been paid prior to the
Closing Date or which have not been reserved on the Financial
Statements. (Any Taxes attributable to the operations of the
Company payable as a result of an audit of any Tax Return shall be
deemed to have accrued in the period to which such Taxes are
attributable.)]
In the event any of the foregoing are indemnifiable hereunder, the
terms "Loss" and "Losses" shall include any and all attorneys' fees
and expenses and costs of investigation and litigation incurred by
the Indemnified Person in enforcing such indemnity. No Loss shall
be reduced by reason of tax benefits allegedly enjoyed as a result
of such Loss by an Indemnified Party.
"NASD" means the National Association of Securities Dealers.
"NASD Reports" means all reports, filings, and forms required to be
filed by Persons pursuant to the regulations of NASDAQ and the
NASD.
"Permits" shall have the meaning set forth in Section 3.16(a).
"Person" means any individual, corporation, proprietorship, firm,
partnership, limited partnership, trust, association or other
entity, including a government or government department, agency or
instrumentality.
"Real Property Leases" has the meaning set forth in Section
3.10(b).
"Related Agreement" means any Contract which is or is to be entered
into at the Closing or otherwise pursuant to this Agreement. The
Related Agreements executed by a specified Person shall be referred
to as "such Person's Related Agreements", "its Related Agreements"
or another similar expression.
"SEC" means the United States Securities and Exchange Commission.
"SEC Reports" means all reports, filings, and forms required to be
filed by Persons under the Securities Act and the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security" or "Securities" means any note, stock, treasury stock,
bond, debenture, evidence of indebtedness, certificate of interest
or participation in any profit-sharing agreement, collateral- trust
certificate, preorganization certificate or subscription,
transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided
interest in oil, gas, or other mineral rights, any put, call,
straddle, option, or privilege on any security, certificate of
deposit, or group or index of securities (including any interest
therein or based on the value thereof), or any put, call, straddle,
option, or privilege entered into on a national securities exchange
relating to foreign currency, or, in general, any interest or
instrument commonly known as a "security", or any certificate of
interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
"Shares" means the number of shares of the Issued and Outstanding
Common Stock, Par Value $0.001 per share, of the Company as is set
forth opposite the names of each of the Sellers on Exhibit 2.1,
which, in the aggregate, equal 2,050,000 shares.
"Subsidiaries" means any Person 50.1 % or more of the voting power
of which is controlled by another Person.
"Survival Date" has the meaning set forth in Section 10.1.
"Taxes" means all taxes, charges, fees, duties, levies or other
assessments, including income, gross receipts, net proceeds, ad
valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, value added, stamp,
leasing, lease, user, transfer, fuel, excess profits, occupational,
interest equalization, windfall profits, severance, employee's
income withholding, other withholding, unemployment and Social
Security taxes, which are imposed by any Governmental Authority,
and such term shall include any interest, penalties or additions to
tax attributable thereto.
"Tax Return" means any report, return or other information required
to be supplied to a Governmental Authority in connection with any
Taxes.
"Tax Statute of Limitations Date" means the close of business on
the 30th day after the expiration of the applicable statute of
limitations with respect to Taxes, including any extensions thereof
(or if such date is not a Business Day, the next Business Day).
"Tax Warranty" means a representation or warranty in Sections 3.20.
"Territory" means the United States, Canada and all other countries
in which the Company has transacted business prior to the Ending
Date as contemplated by Section 5.8.
"Title and Authorization Warranty" means a representation or
warranty in Sections 3.2, 3.4, or 3.7, 3.8, 3.14, 3.16.
"Two Times Prime Rate" means two times the weighted average prime
rate (as the prime rate as from time to time announced by Citibank,
N.A. in New York City).
ARTICLE II
SALE AND PURCHASE OF SHARES
2.1 Sale and Purchase of Shares.
(a) Each Seller hereby agrees to sell to the Buyer that
number of Shares set forth on Exhibit 2.1 opposite his or its name,
free and clear of all Liens, and the Buyer hereby agrees to
purchase all such Shares, subject, of course, to the terms and
conditions of this Agreement.
(b) In consideration for the sale of the Shares by each of
the Sellers to the Buyer, the Buyer shall pay to each of the
Sellers that sum of money (such amount being referred to as the
"Cash Amount") in the amount set forth opposite his or its name on
Exhibit 2.1.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND OF THE COMPANY
In order to induce the Buyer to enter into this Agreement, the
Company and the Sellers, jointly and severally, represent and
warrant to the Buyer, as at the date of this Agreement and as at
the Closing Date as follows:
3.1 Due Incorporation; No Subsidiaries.
(a) The Company is duly organized, validly existing and in
good standing under the laws of the State of Nevada with all
requisite power and authority to own, lease and operate its
properties and to carry on its business as they are now being
owned, leased, operated and conducted.
(b) The Company is licensed or qualified to do business and
is in good standing (where the concept of "good standing" is
applicable)as a foreign corporation in each jurisdiction where the
nature of the properties owned, leased or operated by it and the
business transacted by it require such licensing or qualification.
(c) As of the date of the Closing, the Company has no direct
or indirect Subsidiaries, either wholly or partially owned, and
the Company does not hold any direct or indirect economic, voting
or management interest in any Person or directly or indirectly own
any security issued by any Person.
(d) True, correct and complete copies of the Certificate of
Incorporation and By-laws, as amended, and all minutes of all
meetings (or written consents in lieu of meetings) of the Board of
Directors (and all committees thereof) and stockholders of the
Company have been delivered to the Buyer
3.2 Due Authorization.
(a) The Sellers and the Company have full power and authority
to enter into this Agreement, and the Sellers and the Company have
full power and authority to enter into their respective Related
Agreements and to consummate the transactions contemplated hereby
and thereby.
(b) The Sellers and the Company have duly and validly executed
and delivered this Agreement, and the Sellers and the Company have
duly and validly executed and delivered (or prior to or at the
Closing will duly and validly execute and deliver) their respective
Related Agreements.
(d) The Sellers and the Company expressly represent and
warrant that, at all material times,
(i) the Sellers have, had, and will have, full and valid
title and control of the Shares;
(ii) there was, is, and will be no existing impediment
or encumbrance to the sale and transfer of such Shares to the
Buyer, and on delivery to the Buyer of the Shares,
(A) all of the Shares have been, are, and will be
free and clear of all taxes, liens, encumbrances, charges
or assessments of any kind and shall not be subject to
preemptive rights, tag-along rights, cumulative voting,
or similar rights of any shareholder of the Company,
(B) all of the Shares have been, are, and will be
legally and validly issued in compliance with all
applicable Law, and
(C) all of the Shares have been, are, and will be
fully paid and non- assessable shares, and the Shares
have all been, are, and will be issued under duly
authorized resolutions of the Board of Directors of the
Company.
(e) This Agreement constitutes legal, valid and binding
obligations of the Sellers and the Company, upon execution and
delivery by the Sellers or by the Company will constitute legal,
valid and binding obligations of such party, in each case,
enforceable in accordance with their respective terms.
3.3 Consents and Approvals.
The execution, delivery and performance by the Sellers and the
Company of this Agreement and their respective Related Agreements
do not and will not, and the consummation of the transactions
contemplated hereby and thereby does not and will not,
(i) violate any provisions of the Articles of
Incorporation, as amended, or By- laws of the Company;
(ii) permit any Governmental Authority to impose any
restrictions or limitations of any nature on the Sellers or
the Company or the Buyer with respect to the transactions
contemplated hereby;
(iii) violate, conflict with, or result in the breach
of any of the terms of, result in a material modification of,
or otherwise give any other contracting party the right to
terminate, or constitute a default under, any contract or
other agreement to which the Sellers or the Company is a party
or by or to which it or they or any of their assets or
properties may be bound or subject;
(iv) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory
body against, or binding upon, the Sellers or the Company to
which any of their assets or properties may be bound or
subject;
(vi) result in the creation of any security interest,
lien, encumbrance, adverse claim, proscription or restriction
on any property or asset (whether real, personal, mixed,
tangible or intangible), right, contract, agreement or
business of the Sellers or the Company; or
(vi) violate, conflict with, modify or cause any default
under or acceleration of (or give any party any right to
declare any default or acceleration upon notice or passage of
time or both), in whole or in part, any charter, article of
incorporation, bylaw, mortgage, lien, deed of trust,
indenture, lease, agreement, instrument, order, injunction,
decree, judgment, law or any other restriction of any kind to
which any Seller or the Company are a party or by means of
which either of them or any of their properties may be bound
or subject.
3.4 Compliance With Securities Laws.
(a) Since January 31, 2001, through the Closing Date, the
Sellers and the Company have appropriately filed all SEC Reports.
(b) The Sellers and the Company have made available to the
Buyer true and complete copies of the SEC Reports and all
correspondence between the SEC and the Sellers and the Company and
their attorneys and accountants and market-makers. Such SEC
Reports, at the time filed, complied in all respects with all
applicable Laws.
(c) With respect to the NASD,
(i) The Sellers and the Company have made available to
the Buyer true and complete copies of the NASD Reports and all
correspondence between the NASD and the Sellers and the
Company and its attorneys and accountants and market-makers;
(ii) The Company is currently listed on the OTC
Electronic Bulletin Board with the following trading symbol:
"JSTC". The Company is not in default with respect to any
listing requirements or trading privileges or policy
statements of the SEC or of the NASD or of any other
Governmental Authority. There are no investigations pending or
threatened against the Company by the SEC or by the NASD or by
any other Governmental Authority which would threaten or
jeopardize its trading status or listing privileges, and there
is no reason whatsoever for the Sellers or the Company to
suspect otherwise, irrespective of whether or not the Sellers
or the Company believe such rules or regulations, or such
investigations, pose such a threat to its trading status or
listing privileges.
(d) Through the date of this Agreement and continuing through
the Closing Date, the Company has offered and sold its Securities
only as shown on Schedule 3.4.
(e) The Company was not, has not been, and is not, at any
time between inception, through the Closing Date, an "Investment
Company" as the term is generally interpreted.
3.5 Capitalization.
(a) The Authorized Capitalization of the Company consists of
:
(i) 20,000,000 shares of Common Stock, Par Value $0.001
per share ( the "JTC Common Stock") of which approximately
3,122,301 shares are issued and outstanding and are held, of
record, by approximately 59 persons,
(A) with each holder thereof being entitled to cast
one vote for each share held on all matters properly
submitted to the Shareholders for their vote; and
(B) there being no pre-preemptive rights or
cumulative voting; and
(b) 5,000,000 shares of Preferred Stock, Par Value $0.001 per
share (the "JTC Preferred Stock") of which no shares are Issued and
Outstanding, with the Board of Directors being authorized from time
to time, without shareholder action, to determine and state the
designations and the preferences, limitations, relative rights, and
voting rights, if any, of each such series by the adoption and
filing in accordance with the Laws of the State of Nevada
(d) All of the issued and outstanding shares of Common Stock
of the Company have been duly and validly issued in accordance and
compliance with all applicable Laws, rules and regulations and are
fully paid and non-assessable;
(e) There are no outstanding options, warrants, convertible
securities, scrip, rights to subscribe for, puts, calls, rights of
first refusal, tag-along agreements, nor any other agreements,
understandings, claims or other commitments or rights of any
character whatsoever relating to, or securities or rights
convertible into or exchangeable for any Securities of the Company
or arrangements by which the Company is or may become bound to
issue additional Securities of the Company, nor are there any
outstanding Securities granted or issued by the Company that are
convertible into any Securities of the Company, and none is
authorized;
(f) No Securities of the Company are subject to preemptive
rights or similar rights of the stockholders of the Company nor are
any Securities subject to any liens or encumbrances imposed through
the actions or failure to act of the Company, or otherwise;
(g) There are no anti-dilution or price adjustment provisions
contained in any Security authorized or issued by the Company (or
in the Company's Articles of Incorporation or By-laws or in any
agreement providing rights to security holders) that will be
triggered by the transactions contemplated by this Agreement;
(h) The Company is not obligated or committed to purchase,
redeem or otherwise acquire any of its Securities;
(i) There are no agreements or arrangements under which the
Company is obligated to register the sale of any of its Securities
under the Securities Act;
(j) All presently exercisable voting rights in the Company
are vested exclusively in its outstanding shares of Common Stock,
each share of which is entitled to one vote on every matter to come
before its shareholders;
(k) There are no voting trusts or other voting arrangements
with respect to any of the Company's securities; and
(l) The assignments, endorsements, stock powers and other
instruments of transfer delivered by the Sellers to the Buyer at
the Closing will be sufficient to transfer the Sellers' entire
interest, legal and beneficial, in the Shares to the Buyer.
3.6 Financial Statements; Undisclosed Liabilities.
(a) The Financial Statements have been prepared in accordance
with GAAP consistently applied and present fairly the financial
position, assets, liabilities and retained earnings of the Company
as of the dates thereof and the revenues, expenses, results of
operations, changes in financial position and cash flows of the
Company for the periods covered thereby.
(b) Except as set forth in Exhibit 3.6 or in the Latest
Financial Statements, the Company has no liabilities, debts,
claims or obligations, whether accrued, absolute, contingent
or otherwise, whether due or to become due, other than trade
payables and accrued expenses incurred in the ordinary course
of business since the date of the Latest Financial Statements.
Any and all Company liabilities will be paid as of the
closing date by Sellers or the Company, and the Company shall
have no outstanding liabilities existing after the closing
date. Buyer specifically is NOT assuming any Company
liabilities.
(c) The Sellers and the Company represent and warrant that
there is no basis for the assertion against the Company, as at the
date of this Agreement, or as at the Closing Date, of any liability
of any nature or in any amount not fully reflected or reserved
against in the Financial Statements, and there is no reason for
Company or the Sellers to believe otherwise, irrespective of
whether or not they believe the claim is valid or not.
3.7 No Adverse Effects or Changes.
Since the Latest Financial Statement Date, the Company has
not:
(a) suffered any Company Adverse Change or Effect;
(b) waived, released or canceled any claims against third
parties or debts owing to it, or any rights;
(c) made any changes in its accounting systems, policies,
principles or practices;
(d) authorized for issuance, issued, sold, delivered or
agreed or committed to issue, sell or deliver (whether through the
issuance or granting of options, warrants, convertible or
exchangeable securities, commitments, subscriptions, rights to
purchase or otherwise), any of its Securities, or amended any of
the terms of any of its Securities;
(e) split, combined, or reclassified any shares of its
Securities, declared, set aside or paid any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of its securities, or redeemed or otherwise
acquired any Securities of the Company or of any other Person;
(f) entered into, adopted, amended or terminated any bonus,
profit sharing, compensation, termination, stock option, stock
appreciation right, restricted stock, performance unit, pension,
retirement, deferred compensation, employment, severance or other
employee benefit agreements, trusts, plans, funds or other
arrangements for the benefit or welfare of any director, officer or
employee, or increased in any manner the compensation or fringe
benefits of any director or officer;
(g) authorized or made any capital expenditure;
(h) made any Tax election or settled or compromised any
federal, state, local or foreign Tax liability, or waived or
extended the statute of limitations in respect of any such Taxes;
(i) paid any amount, performed any obligation or agreed to
pay any amount or perform any obligation, in settlement or
compromise of any suits against the Company or its Affiliates or
any of its directors, officers, employees, agents, or shareholders.
(j) paid any amount, performed any obligation or agreed to
pay any amount or perform any obligation, in settlement or
compromise of any claims of liability against the Company or its
Affiliates or any of its directors, officers, employees, agents, or
shareholders; or
(k) terminated, modified, amended or otherwise altered or
changed any of the terms or provisions of any Contract, or paid any
amount not required by Law or by any Contract.
3.8 Title to Properties.
The Company has, and on the Closing Date will have, good and
marketable title to, and is, and on the Closing Date will be, the
lawful owner of, all of the tangible and intangible assets,
properties and rights used in connection with its business and all
of the tangible and intangible assets, properties and rights
reflected in the unaudited financial statements to be delivered on
the closing date , which as of that date shall include only the
registered name of the Company.
3.9 Condition and Sufficiency of Assets. Not applicable.
3.10 Leased Real Property.
(a) The Company does not hold legal title to, or own any
legal or beneficial interest in any real property nor does it
presently lease or rent any such real property.
3.11 Personal Property.
(a) Other than its registered name and contractor's license,
the Company shall have no personal property as such tangible
personal property presently utilized by the Company in the ordinary
course of its business shall be purchased by the Sellers. The
Sellers shall reasonably cooperate with the buyers in efforts to
transfer its contractor's license to new management.
3.12 Inventories.
(a) The Company shall hold no inventories as of the Closing
Date as any inventories the Company may have shall be purchased by
the Sellers concurrent with or prior to the closing date.
3.13 Accounts Receivable and Advances.
(a) The Company shall have no accounts receivable, loans
and/or advances payable to any Persons ("Advances") other than as
specified in Exhibit 3.6. The Sellers shall caused to be
extinguished any obligations or liabilities as specified in Exhibit
3.6. by the closing date or concurrent to the closing date.
3.14 Intellectual Property.
Exhibit 3.14 is a true and complete list of all of the trademarks,
trade names, service marks, patents and copyrights (including any
registrations of or pending applications for any of the foregoing)
used by the Company in the conduct of its business.
3.15 Contracts.
(a) Except as set forth on Exhibit 3.15, there are no pending
Contracts or Agreements to which the Company is a party or by which
it is bound, or to which any of its assets or properties is
subject. (See Exhibit 3.15.). Any such Agreements shall be
concluded or terminated concurrent to the closing date.
3.16 Permits and Bonding.
(a) Exhibit 3.16 is a true and accurate list of all licenses,
certificates, permits, franchises, rights, code approvals and
private product approvals and bonds (collectively, "Permits") held
by the Company.
(b) Except for the Permits listed on Exhibit 3.16, there are
no Permits, whether federal, state, local or foreign, which are
necessary for the lawful operation of the business of the Company.
3.17 Insurance; Claims.
(a) Exhibit 3.17 contains an accurate and complete list of
all policies of fire, liability, workers' compensation, title and
other forms of insurance owned, held by or applicable to the
Company (or its assets or business), and the Company has heretofore
delivered to the Buyer a true and complete copy of all such
policies, including all occurrence-based policies applicable to the
Company (or its business) for all periods prior to the Closing
Date. All such policies are, and will be, in full force and effect,
all premiums with respect thereto covering all periods up to and
including the Closing Date have been, and will be, paid, and no
notice of cancellation or termination has been, or will have been,
received with respect to any such policy.
(b) There are no claims which have been made by or against
the Company in the last three years under any workers'
compensation, general liability, property or other insurance policy
applicable to the Company or any of its properties.
(c) There are no pending or threatened claims under any
insurance policy, nor will there be any pending or threatened
claims prior to the Closing Date.
3.18 Employee Benefits.
(a) The Company is not a party to and does not participate in
or have any liability or contingent liability with respect to:
(i) any "employee welfare benefit plan" or "employee
pension benefit plan" as those terms are respectively defined
in the appropriate sections of ERISA;
(ii) any retirement or deferred compensation plan,
incentive compensation plan, stock plan, unemployment
compensation plan, vacation pay, severance pay, bonus or
benefit arrangement, insurance or hospitalization program or
any other fringe benefit arrangements for any current or
former employee, director, consultant or agent, whether
pursuant to contract, arrangement, custom or informal
understanding, which does not constitute an "employee benefit
plan" (as defined in the appropriate sections of ERISA); or
(iii) any employment, consulting or agency agreement as
of the Closing Date.
3.19 Employment and Labor Matters.
(a) All directors, officers and employees of the Company
shall have resigned concurrent with the closing date after
appointing interim directors as required under Company's Articles
and Bylaws.
(b) The Company has and currently is conducting its business
in full compliance with all Laws relating to employment and
employment practices, terms and conditions of employment, wages and
hours, affirmative action, and nondiscrimination in employment.
(c) All present and prior relationships of the Company with
its employees are good. There is, and during the past two years
there has been, no labor strike, dispute, slow-down, work stoppage
or other labor difficulty actually pending or threatened against or
involving the Company, and no attempt is currently being made or
during the past three years has been made to organize any employees
of the Company to form or enter a labor union or similar
organization.
(d) The Company has not had any grievance by any employee
during the past two years.
3.20 Taxes.
(a) Any unpaid liabilities for Taxes, whether or not
disputed, that have accrued with respect to or are applicable to
the periods ended on and including the Closing Date or to any years
and periods prior thereto and for which the Company may be directly
or contingently liable shall be paid by Sellers.
(b) There are no Tax Liens (other than Liens for current
Taxes not yet due and payable) upon the properties or assets of the
Company.
(c) The Company has not granted or been requested to grant
any waiver of any statutes of limitations applicable to any claim
for Taxes.
(d) As at the date of this Agreement, and prior to the
Closing Date, all federal, state, local and foreign income,
corporation and other Tax Returns have been, and will be, filed for
the Company, and all other filings in respect of Taxes have been,
and will be, made for the Company, for all periods as required by
Law.
(e) As at the date of this Agreement, and prior to the
Closing Date, all Information Returns required to be filed by the
Company have been, or will be, filed, and all statements required
to be furnished to payees by the Company have been, or will be,
furnished to such payees, and the information set forth on such
Information Returns and statements is, and will be, true, complete
and correct.
(f) As at the date of this Agreement, and prior to the
Closing Date, all Taxes shown as due on all Tax Returns and other
filings have been, and will be, paid.
(g) As at the date of this Agreement, and prior to the
Closing Date, each Tax Return and filing is, and will be, true and
correct, and the Company does not nor will have any additional
liability for Taxes with respect to any Tax Return or other filing
heretofore filed or which was required by Law to be filed, other
than as reflected as liabilities on the Financial Statements.
(h) None of the Tax Returns or other filings that include the
operations of the Company has ever been audited or investigated by
any Governmental Authority, and no facts exist which would
constitute grounds for the assessment of any additional Taxes by
any Governmental Authority with respect to the taxable years
covered in such Tax Returns and filings.
(i) No material issues have been raised in any examination by
any Governmental Authority with respect to the business and
operations of the Company which, by application of similar
principles, reasonably could be expected to result in a proposed
adjustment to the liability for Taxes for any other period not so
examined.
(j) As at the date of this Agreement, and prior to the
Closing Date, the Sellers are not, nor will be, "foreign persons"
as defined in the Code.
(k) The Company is not subject to any joint venture,
partnership or other arrangement or contract which is treated as a
partnership for federal income tax purposes. Except for any tax-
sharing agreement which is attached to Exhibit 3.20 as an exhibit,
the Company is not a party to any tax-sharing agreement.
(l) None of the assets of the Company constitutes tax-exempt
bond financed property or tax-exempt use property within the
meaning of Section 168 of the Code, and none of the assets
reflected on the Financial Statements is subject to a lease, safe
harbor lease or other arrangement as a result of which the Company
is not treated as the owner for federal income tax purposes.
(m) The Company has not made or become obligated to make, and
will not as a result of any event connected with any transaction
contemplated herein become obligated to make, any "excess parachute
payment" as defined in section 280G of the code [without regard to
subsection (b)(4) thereof].
3.21 Environmental Matters.
(a) the business, operations and facilities (whether owned or
leased) of the Company, and all existing uses of and activities on
or at any of the properties or facilities (whether owned or leased)
of the Company, are in material compliance with all Environmental
Laws in effect as of the date hereof, and no condition exists or
event has occurred which, with or without notice or the passage of
time or both, would constitute a violation of or give rise to any
Lien under any Environmental Law, and there is no reason for
Company or the Sellers to believe otherwise, irrespective of
whether or not they believe the claim is valid or not;
(b) the Company is in possession of all Environmental Permits
necessary or desirable for the conduct or operation of its business
(or any part thereof), and is in material compliance with all of
the requirements, conditions and limitations included in such
Environmental Permits, and there is no reason for Company or the
Sellers to believe otherwise, irrespective of whether or not they
believe the claim is valid or not;
(c) there is no, and the Company has not used or stored any,
Hazardous Material in, on, or at any of the properties or
facilities now or previously used by the Company.
(d) the Company has not received any notice from any
Governmental Authority or any other Person that any past or present
aspect of the business, operations or facilities (whether owned or
leased) of the Company is in violation of any Environmental Law or
Environmental Permit, or that the Company is responsible or liable
(or potentially responsible or liable) for the investigation, clean
up or remediation of any Hazardous Materials at any location, and
there is no reason for the Company or the Sellers to believe that
such a notice may be sent or that the Company may be responsible
for an investigation, clean up, or remediation;
(e) the Company has not at any time deposited or incorporated
any Hazardous Material into, on, beneath, or adjacent to any
property, and there is no reason for the Company or the Sellers to
believe otherwise, irrespective of whether or not they believe the
claim is valid or not;
(f) the Company is not the subject of any litigation or
proceedings in any forum, judicial or administrative, involving a
demand for damages, injunctive relief, penalties, or other
potential liability with respect to violations of or liability
under any Environmental Law, and there is no reason for the Company
or the Sellers to believe that any such proceedings are threatened,
irrespective of whether or not they believe the litigation or
proceeding is valid or not;
(g) the Company has timely filed all reports and
notifications required to be filed with respect to all of its
operations, properties and facilities (whether owned or leased) and
has generated and maintained all required records and data under
all applicable Environmental Laws;
(h) neither the Company nor any predecessor thereof has
transported or arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on
the National Priorities List pursuant to CERCLA or on any similar
state list; and
(i) no condition exists or has existed or event has occurred
with respect to
(i) any property that was at any time owned or leased,
or any direct or indirect subsidiary that was at any time
owned, by the Company, any predecessor to the Company or any
Person that is or was an Affiliate of the Company, which
property or subsidiary has been sold, transferred or disposed
or for which any lease has terminated, and there is no reason
for the Company or the Sellers to believe otherwise,
irrespective of whether or not they believe the condition is
valid or not; or
(ii) any predecessor to the Company, that could [in the
case of either of the foregoing clauses (i) or (ii)], with or
without notice, passage of time or both, give rise to any
present or future liability of the Company pursuant to any
Environmental Law, and there is no reason for the Company or
the Sellers to believe otherwise, irrespective of whether or
not they believe the condition is valid or not.
3.22 Litigation.
There are no actions, suits, arbitrations, regulatory proceedings
or other litigation, proceedings or governmental investigations
pending or threatened against or affecting the Company or any of
its officers, directors, employees, agents or stockholders thereof
in their capacity as such, or any of the Company's properties or
businesses, and there is no reason for the Company or the Sellers
to believe otherwise.
3.23 No Conflict of Interest.
Neither the Sellers nor their Affiliates have or claim to have any
direct or indirect interest in any tangible or intangible property
used in the business of the Company, except as a holder of Shares.
3.24 Bank Accounts; Holders of Powers of Attorney.
Any accounts held with banks or other financial institutions
at which the Company has an account or safe deposit box shall be
closed concurrent with the closing.
3.25 Customers, Suppliers, Etc. Not applicable.
3.26 Claims Against the Seller, Officers and Directors of the
Company, and other Persons
There are no pending or threatened claims against any Person which
could give rise to any claim for indemnification against the
Company, and there is no reason for the Company or the Sellers to
believe otherwise, irrespective of whether or not they believe the
claim is valid or not.
3.27 Improper and Other Payments.
(a) Neither the Company nor the Seller, nor any director,
officer, employee, agent or representative of the Company, nor any
Affiliate of them, nor any Person acting on behalf of any of them,
has made, paid, or received any bribes, kickbacks or other similar
payments to or from any Person, whether lawful or unlawful.
(b) No contributions have been made, directly or indirectly,
to a domestic or foreign political party or candidate.
(c) No improper foreign payment (as defined in the Foreign
Corrupt Practices Act) has been made by any of said persons or
entities.
3.28 Due Diligence Materials.
The Company and the Sellers have provided to the Buyer or its
representatives, in accordance with the terms of Section 5.2, all
documents of the character and type requested by the Buyer in
connection with its "due diligence" investigation of the Company
and the Seller, and there are no documents in the possession of the
Seller, of the Company or any of their Affiliates or respective
agents or representatives of a character or type described in such
requests which have not been so provided to the Buyer or its
representatives.
3.29 No Defaults or Violations.
(a) The Company has not breached any provision of, nor is in
default under, the terms of any Contract to which it is a
party or under which it has any rights or by which it is bound
nor is the Company or any of the Sellers aware of any event
which, with the passage of time would result in such breach or
default;
(ii) no other party to any such Contract has breached
such Contract or is in default thereunder nor is the Company
or any of the Sellers aware of any event which, with the
passage of time would result in such breach or default;
(iii) neither the Company nor any other such party to
such a Contract has given notice to the other respecting a
claimed breach or default; and
(iv) there is no reason for the Company or any of the
Sellers to believe otherwise, irrespective of whether or not
they believe the claim is valid or not.
(b) The Company and the Seller, are, and at the Closing will
be, in compliance with, and no violation exists, nor will exist,
under any and all Laws applicable to the Company and to the Sellers
(insofar as such non-compliance or violation or Laws may effect
ability of any one of them to sell and convey the Shares to the
Buyer and to otherwise consummate the transactions contemplated
hereby), and there is no reason for the Company or the Sellers to
believe otherwise, irrespective of whether or not they believe the
violation is valid or not.
3.30 Accuracy of Statements.
The Sellers and the Company know of no information or fact which
has or would have an adverse effect on the financial condition,
business, or business prospects of the Company, or on the ability
of the Sellers to sell and convey the Shares to the Buyer, which
has not been disclosed to the Buyer, and there is no reason for
Company or the Sellers to believe otherwise, irrespective of
whether or not they believe the claim is valid or not.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
In order to induce the Sellers to enter into this Agreement,
the Buyer represents and warrants to the Seller, as at the date of
this Agreement and as at the Closing Date (as if such
representations and warranties were remade on the Closing Date), as
follows:
4.1 Due Incorporation.
The Buyer is a corporation duly formed, validly existing and
in good standing under the laws of the State of Nevada with all
corporate power and authority to own, lease and operate its
properties and to carry on its business as they are now being
owned, leased, operated and conducted.
4.2 Due Authorization.
(a) The Buyer has full corporate power and authority to enter
into this Agreement and the Related Agreements and to consummate
the transactions contemplated hereby and thereby. The execution,
delivery and performance by the Buyer of this Agreement and Related
Agreements have been duly and validly approved by the board of
directors of the Buyer and no other actions or proceedings on the
part of the Buyer are necessary to authorize this Agreement, the
Related Agreements and the transactions contemplated hereby and
thereby.
(b) The Buyer has duly and validly executed and delivered
this Agreement and has duly and validly executed and delivered (or
prior to or at the Closing Date will duly and validly execute and
deliver) the Related Agreements.
(c) This Agreement and the Related Agreements constitute
legal, valid and binding obligations of the Buyer, in each case
enforceable in accordance with their respective terms, except as
such enforce ability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar Laws in effect
which affect the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies.
4.3 Consents and Approvals; Authority Relative to this Agreement.
(a) No consent, authorization or approval of, filing or
registration with, or cooperation from, any Governmental Authority
or any other Person not a party to this Agreement is necessary in
connection with the execution, delivery and performance by the
Buyer of this Agreement, its respective Related Agreements or the
consummation of the transactions contemplated hereby, or thereby.
(b) The execution, delivery and performance by the Buyer of
this Agreement and its respective Related Agreements does not and
will not, and the consummation of the transactions contemplated
hereby and thereby does not and will not,
(i) violate any Law;
(ii) violate or conflict with, result in a breach or
termination of, constitute a default or give any third party
any additional right (including a termination right) under,
permit cancellation of, result in the creation of any Lien
upon any of the assets or properties of the Buyer under, or
result in or constitute a circumstance which, with or without
notice or lapse of time or both, would constitute any of the
foregoing under any Contract to which the Buyer is a party or
by which the Buyer or any of its assets or properties are
bound;
(iii) permit the acceleration of the maturity of any
indebtedness of the Buyer or indebtedness secured by its
respective assets or properties; or
(iv) violate or conflict with any provision of any of the
certificate of incorporation, charter, bylaws or similar
organizational instruments of the Buyer.
ARTICLE V
COVENANTS
5.1 Implementing Agreement.
(a) Subject to the terms and conditions hereof, each Party
hereto shall use its reasonable best efforts to take all action
required of it to fulfill its obligations under the terms of this
Agreement and to facilitate the consummation of the transactions
contemplated hereby.
(b) The Sellers agree that unless this Agreement is terminated
in accordance with the provisions of Section 9.1, the Sellers will
not encumber the Shares, will not sell the Shares to any Person
other than the Buyer (or an Affiliate of the Buyer), and will not
take any other action which would have the effect of preventing or
disabling the Sellers' respective performance of their respective
obligations under this Agreement.
5.2. Access to Information and Facilities.
(a) From and after the date of this Agreement or such earlier
time as the Buyer and the Sellers shall have mutually agreed, the
Sellers shall, and shall cause the Company to give the Buyer and
the Buyer's representatives unrestricted access during normal
business hours to all of the facilities, properties, books,
contracts, commitments and records of the Company, and the Sellers
shall make the officers and employees of the Company available to
the Buyer and its representatives as the Buyer and its
representatives shall from time to time request. The Buyer and its
representatives will be furnished with any and all information
concerning the Company which the Buyer or its representatives
reasonably request.
(b) Except as may be reasonably necessary to carry out this
Agreement and the transactions contemplated hereby, the Buyer will
not, will cause its Affiliates not to, and will instruct its and
its Affiliates' agents and financing sources not to disclose the
Company Confidential Information to any Person other than the
Buyer's employees, agents and financing sources on a "need to know"
basis without the prior consent of the Company, unless compelled to
disclose any such the Company Confidential Information by judicial
or administrative process or, in the opinion of the Buyer's
counsel, by other requirements of Law.
(c) Except as may be reasonably necessary to carry out this
Agreement and the transactions contemplated hereby, the Sellers
will not, will cause their Affiliates not to, and will instruct
their, and their Affiliates' agents and financing sources to not
disclose anyBuyer Confidential Information to any Person other than
Sellers or the Company's employees, agents and financing sources
without the prior consent of the Buyer, unless compelled to
disclose any such the Buyer Confidential information by judicial or
administrative process or, in the opinion of the Sellers' counsel,
by other requirements of Law.
5.3 Preservation of Business.
(a) From the date of this Agreement until the Closing Date,
the Sellers shall cause the Company to operate only in the ordinary
and usual course of business and consistent with past practice, and
the Sellers and the Company shall use their best efforts to:
(i) preserve the goodwill and advantageous relationships
of the Company with customers, suppliers, independent
contractors, employees and other Persons material to the
operation of its business; and
(ii) not permit any action or omission which would cause
any of the representations or warranties of the Sellers or the
Company contained herein to become inaccurate or any of the
covenants of the Sellers to be breached.
(iii) waive, release or cancel any claims against third
parties or debts owing to it, or any rights which have value;
(iv) make any changes in its accounting systems,
policies, principles or practices;
(v) split, combine, or reclassify any shares of its
Securities, declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any
combination thereof) in respect of its securities, or redeem
or otherwise acquire any Securities of the Company or of any
other Person;
(xvi) terminate, modify, amend or otherwise alter or
change any of the terms or provisions of any contract, or pay
any amount not required by Law or by any contract.
5.4 Consents and Approvals.
(a) The Buyer shall, and shall cause the Company to make all
filings, applications, statements and reports to all Governmental
Authorities and other Persons which are required to be made prior
to and on the the Closing Date by or on behalf of the Buyer or any
of its Affiliates pursuant to any applicable Law or contract in
connection with this Agreement or any Related Agreement and the
transactions contemplated hereby and thereby, including prompt
filings under the HSR Act, if applicable and expedited submission
of all materials required by any Governmental Authority in
connection with such filings.
(b) The Buyer shall, and shall cause the Company to, make all
filings, applications, statements and reports to all Governmental
Authorities and other Persons which are required to be made
subsequent to the Closing Date by or on behalf of the Company or
any of their respective Affiliates pursuant to any applicable Law
or contract in connection with this Agreement or any of their
respective Related Agreements and the transactions contemplated
hereby and thereby, including prompt filings under the HSR Act, if
applicable, and expedited submission of all materials required by
any Governmental Authority in connection with such filings.
5.5 Maintenance of Insurance. Not applicable.
5.6 Resignation of Officers and Directors.
The Sellers shall cause each officer and member of the Board
of Directors of, and each trustee or fiduciary of any plan or
arrangement involving employee benefits of, the Company, if so
requested by the Buyer, to tender his resignation from such
position effective as of the Closing Date.
5.7 Bank Accounts.
Incident to the Closing, the Sellers will arrange:
(a) for the Company's then current bank account(s) to be
closed;
(b) for all funds if any, from said bank account to be
transferred into a bank account to be selected by the Buyer.
5.8 Supplemental Information.
(a) After the date hereof, and from time to time prior to the
Closing Date, the Sellers and the Company will promptly disclose in
writing to the Buyer any matter hereafter arising which, if
existing, occurring or known at the date of this Agreement would
have been required to be disclosed to the Buyer or which would
render inaccurate any of the representations, warranties or
statements set forth herein.
(b) After the date hereof, and prior to the Closing Date, the
Buyer will promptly disclose in writing to the Sellers any matter
hereafter arising which, if existing, occurring or known at the
date of this Agreement would have been required to be disclosed to
the Sellers or which would render inaccurate any of the
representations, warranties or statements set forth in Article IV
hereof.
(c) No information provided to a Party pursuant to this
Section shall be deemed to cure any breach of any representation,
warranty or covenant made in this Agreement or the Related
Agreements.
5.9 Non-competition. Not applicable.
5.10 Exclusivity.
(a) Neither the Seller, nor the Company, nor any of their
respective directors, officers, employees, representatives, agents
or Affiliates shall, directly or indirectly, solicit, initiate,
encourage, respond favorably to, permit or condone inquiries or
proposals from, or provide any Confidential Information to, or
participate in any discussions or negotiations with, any Person
(other than the Buyer, and the respective directors, officers,
employees, representatives and agents) concerning:
(i) any merger, sale of assets not in the ordinary
course of business, acquisition, business combination, change
of control or other similar transaction involving the Company,
or
(ii) any purchase or other acquisition by any Person of
the Shares, or
(iii) any sale, or issuance by the Company of any shares
of its Securities.
(b) The Sellers will promptly advise the Buyer of, and
communicate to the Buyer, the terms and conditions of (and the
identity of the Person making), any such inquiry or proposal
received.
5.11 Use of Name.
From and after the Closing Date, neither the Sellers nor any
of their Affiliates will directly or indirectly use in any manner
any trade name, trademark, service xxxx or logo used by the Company
or any word or logo that is similar in sound or appearance other
than in the ordinary course of the business of the Company.
5.12 Tax Indemnity.
The Sellers, and each of them, agree to jointly and severally
indemnify the Buyer against, and agree to hold it harmless from,
any and all liabilities for Taxes that have become due and payable
or which have accrued with respect to the Company that have not
been paid prior to the Closing Date or which have not been reserved
on the Financial Statements. (Any Taxes attributable to the
operations of the Company payable as a result of an audit of any
Tax Return shall be deemed to have accrued in the period to which
such Taxes are attributable.)
5.13 Termination of Certain Agreements.
The Sellers shall, and the Sellers agree that they shall cause
their Affiliates and the Company to, and that their Affiliates and
the Company shall, effective as of the Closing Date, without any
cost to the Company, terminate, rescind, cancel and render void and
of no effect all of the Contracts between the Company, on the one
hand, and the Sellers or any of their Affiliates, as the case may
be (other than the Company), on the other hand, except for those
Contracts entered into pursuant to this Agreement.
5.14 Sellers not to Inhibit.
Neither the Sellers nor the Company will take any action (nor
omit to take any action) which would adversely affect the ability
of the Sellers to sell and convey the Shares to the Buyer or
adversely affect the business or business prospects of the Company.
ARTICLE VI
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE BUYER
The obligations of the Buyer under Article II of this
Agreement are subject to the satisfaction or waiver by the Buyer of
the following conditions precedent on or before the Closing Date
unless otherwise specified:
6.1 Warranties True as of Both Present Date and Closing Date.
The representations and warranties of the Sellers and the
Company contained herein shall have been accurate, true and correct
on and as of the date of this Agreement, and shall also be
accurate, true and correct on and as at the Closing Date with the
same force and effect as though made by the Sellers and the Company
on the Closing Date.
6.2 Compliance with Agreements and Covenants.
The Sellers and the Company shall have performed and complied
with all of their respective covenants, obligations and agreements
contained in this Agreement to be performed by them and complied
therewith, on or prior to the Closing Date.
6.3 Consents and Approvals.
The Buyer shall have received written evidence satisfactory to
the Buyer that all consents and approvals required for the
consummation of the transactions contemplated hereby or the
ownership and operation by the Buyer of the Company and its
business have been obtained, and all required filings have been
made, including those set forth on Exhibit 3.3.
6.4 Expiration of HSR Waiting Period (if any). Not applicable.
6.5 Documents.
The Buyer shall have received all of the agreements, documents
and items specified in Section 8.2.
6.6 Delivery of Exhibits.
All exhibits respecting the Company and/or the Sellers or
either of them have been, or shall be, delivered to Buyer in final
form prior to, or concurrent with, the Closing Date and no such
exhibit shall contain or reflect a Company Adverse Change or Effect
from the last previous draft of such exhibit or, if none, the last
oral discussion or written memorandum respecting such exhibit or
schedule.
6.7 No Adverse Change.
No Company Adverse Change or Effect shall have occurred, and
no event shall have occurred which, in the reasonable judgment of
the Buyer, is likely to have a Company Adverse Change or Effect.
6.8 Actions or Proceedings.
No action or proceeding by any Governmental Authority or other
Person shall have been instituted or threatened which:
(a) might have a Company Adverse Effect or Change, or
(b) could enjoin, restrain or prohibit, or could result in
substantial damages in respect of, any provision of this Agreement
or any of the Related Agreements or the consummation of the
transactions contemplated hereby or thereby or any integration of
any operations of the Company with those of the Buyer and its
Affiliates.
6.9 Obtainment of Financing.
The obligation of the Buyer to consummate the transactions
contemplated by, and with which to comply with the undertaking made
by it under, this Agreement shall be conditioned upon its ability
to obtain financing with which to do so. Consequently, if the Buyer
is unable to obtain financing in an amount and on terms it, in its
sole discretion, deems sufficient (i) to purchase the Shares, or
(ii) to consummate the transactions contemplated by this Agreement,
or (iii) to otherwise comply with the undertakings made by it under
this Agreement, then (iv), the Buyer shall have no obligation to do
so, and (v), neither the Sellers nor the Company shall have any
rights or recourse whatsoever against the Buyer and its Officers,
Directors, and Shareholders.
ARTICLE VII
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE SELLER
The obligations of Sellers under Article II of this Agreement
are subject to the satisfaction or waiver by the Sellers of the
following conditions precedent on or before the Closing Date:
7.1 Warranties True as of Both Present Date and Closing Date.
The representations and warranties of the Buyer contained
herein shall have been accurate, true and correct on and as of the
date of this Agreement, and shall also be accurate, true and
correct on and as at the Closing Date with the same force and
effect as though made by the Buyer on the Closing Date.
7.2 Compliance with Agreements and Covenants.
The Buyer shall have performed and complied with all of its
respective covenants, obligations and agreements contained in this
Agreement to be performed and complied with by it on or prior to
the Closing Date.
7.3 Expiration of HSR Waiting Period (if any). Not applicable.
7.4 Documents.
The Sellers shall have received all of the agreements,
documents and items specified herein.
7.5 Actions or Proceedings.
No action or proceeding by any Governmental Authority or
other Person shall have been instituted or threatened which could
enjoin, restrain or prohibit, or could result in substantial
damages in respect of, any provision of this Agreement or any of
the Related Agreements or the consummation of the transactions
contemplated hereby or thereby or any integration of any operations
of the Company with those of the Buyer and its Affiliates.
7.6 Consents and Approvals.
The Sellers shall have received written evidence satisfactory
to the Sellers that all consents and approvals required for the
consummation of the transactions contemplated hereby have been
obtained, and all required filings have been made.
ARTICLE VIII
THE CLOSING
8.1 The Closing.
(a) The Closing shall be scheduled to occur at 2:00 pm at the
offices of NevWest Securities Corporation on: (i) November 6,
2001, or (ii) on such later date as the Parties hereto shall
mutually agree.
(b) The Closing, and all transactions to occur at the
Closing, shall be deemed to have taken place at, and shall be
effective as of, the close of business on the Closing Date.
8.2 Deliveries by the Seller.
At the Closing, in addition to any other documents or
agreements required under this Agreement, the Sellers shall
deliver to the Buyer the following:
(a) Certificates evidencing all of the Shares, which
certificates shall be duly endorsed in blank or accompanied by
stock powers executed in blank, with all signatures medallion
guaranteed and with all necessary transfer taxes and other revenue
stamps affixed and acquired at the Seller's expense, together with
such other duly executed instruments or documents as may be
reasonably requested by the Buyer in order to consummate the
transactions contemplated by this Agreement.
(b) The written resignations of the persons listed in Exhibit
8.2(b) as directors and officers of the Company and the termination
of any and all management and consulting agreements;
(c) Evidence, in form satisfactory to the Buyer, that all
consents and approvals referred to herein have been obtained;
(d) The Certificates of Incorporation or similar instruments
of the Company certified by the Secretary of State or equivalent
Person of the jurisdiction of incorporation of the Company, and
Bylaws or similar instruments of the Company, certified by the
Secretary of the Company;
(e) Certificates of Good Standing for the Company from the
State of Nevada;
8.3 Deliveries by the Buyer.
At the Closing, the Buyer shall deliver to the Sellers the
following:
(a) the sum of $124,449.00, by United States funds, payable
to the order of each of the parties in the amounts set forth
opposite the names as set forth in Exhibit 2.1;
(b) Evidence, in form satisfactory to the Seller, that all
consents and approvals referred to herein have been obtained.
ARTICLE IX
TERMINATION
9.1 Termination.
This Agreement may be terminated at any time on or prior to
the Closing Date:
(a) By the mutual consent of the Sellers and the Buyer;
(b) By the Sellers or the Buyer, if the Closing shall not
have taken place on or before November 30, 2001; provided however,
that the right to terminate this Agreement under this Section 9.1
(b) shall not be available to any Party whose willful failure to
fulfill any obligation under this Agreement has been the cause of
or resulted in the failure of the Closing to occur on or before
such date;
(c) By the Buyer, if there shall have been a breach of any
covenant, representation or warranty or other agreement of any
Seller or of the Company hereunder, and such breach shall not have
been remedied within ten Business Days after receipt by the Sellers
of a notice in writing from the Buyer specifying the breach and
requesting such be remedied; or
(d) By any Seller, if there shall have been a breach of any
covenant, representation or warranty or other agreement of the
Buyer hereunder, and such breach shall not have been remedied
within ten Business Days after receipt by the Buyer of notice in
writing from the Sellers specifying the breach and requesting such
be remedied.
9.2 Effect of Termination.
If this Agreement is terminated pursuant to Section 9.1, all
obligations of the Parties hereunder shall terminate, except for
the obligations set forth in Sections 5.2(b) and (c), 11.1, 11.11
and 11.12, which shall survive the termination of this Agreement,
and except that no such termination shall relieve any party from
liability for any prior willful breach of this Agreement.
ARTICLE X
INDEMNIFICATION
10.1 Survival.
Except as otherwise specified, the representations and
warranties of the Sellers contained herein shall survive the
Closing for a period expiring at the close of business on the date
that is 90 days after the Closing Date (the "Survival Date") except
that:
(a) Tax Warranties shall survive until the Tax Statute of
Limitations Date; and
(b) Title and Authorization Warranties shall survive forever.
10.2 Indemnification by Sellers.
Each Seller agrees, jointly and severally, to indemnify the
Buyer against, and each Seller agrees to hold Buyer harmless from,
any and all Losses or claims incurred or suffered by it relating to
or arising out of or in connection with any of the following
(collectively, "Claims"):
(a) any misrepresentation, breach of warranty, or any
inaccuracy in any representation or warranty made by any Seller or
the Company in this Agreement or in any document, certificate, or
affidavit delivered by any Seller or the Company pursuant to the
provisions of this Agreement or the Related Agreements; or
(b) any breach of or failure by any Seller or the Company to
perform any covenant or obligation of such party set out or
contemplated in this Agreement or any Related Agreement or any
document delivered at the Closing; or
(c) any liability, obligation, or commitment of any nature
(absolute, accrued, contingent, or other) to any Person, including
the Buyer,
(i) of the Company; or
(ii) of any Seller, insofar as it effects his or her or
its rights and duties with respect to his or her or its
respective ownership of, and the sale and conveyance of the
Shares, or with respect to the operation of the business of
the Company;
(d) any Environmental Expenses, any Environmental claims, any
Environmental Conditions, or any violation of Environmental
Requirements; or
10.3 Claims.
(a) The provisions of this Section 10.3 shall be subject to
Section 10.4.
(b) Promptly(and in any event within 5 days after the service
of any citation or summons) after becoming aware of a claim for
indemnification under this Agreement, the Indemnified Person shall
give notice to the Indemnifying Person of such claim provided that
the failure of the Indemnified Person to promptly give notice shall
not relieve the Indemnifying Person of its obligations except to
the extent (if any) that the Indemnifying Person shall have been
prejudiced thereby.
(c) If the Indemnifying Person does not object in writing to
such claim within twenty (20) days of receiving notice thereof, the
Indemnified Person shall be entitled to recover, on the 25th day
after such notice was given, from the Indemnifying Person the full
amount of such claim, and any objection thereafter by the
Indemnifying Person shall be deemed waived and shall not be
permitted.
(d) If the Indemnifying Person agrees that he, she or it has
an indemnification obligation but states that he, she or it is
obligated to pay only a lesser amount, the Indemnified Person shall
nevertheless be entitled to recover, on the 25th day after such
notice was given, from the Indemnifying Person the lesser amount,
without prejudice to the Indemnified Person's claim for the
difference.
(e) In addition to the amounts recoverable by the Indemnified
Person from the Indemnifying Person pursuant to the foregoing
provisions, the Indemnified Person shall also be entitled to
recover from the Indemnifying Person interest on such amounts at
the rate of Two Times Prime from, and including, the 25th day after
such notice of an indemnification claim is given to, but not
including, the date such recovery is actually made by the
Indemnified Person.
10.4 Notice of Third-Party Claims; Assumption of Defense.
(a) Promptly (and in any event within five (5) days after the
service of any citation or summons) after becoming aware of any
claim or the commencement of any suit, action or proceeding made or
brought by any Person not a party hereto, in respect of which
indemnity may be sought under this Agreement, the Indemnified Party
shall give notice thereof to the Indemnifying Party; provided,
however, that the failure of the Indemnified Person to promptly
give notice shall not relieve the Indemnifying Person of its
obligations except to the extent (if any) that the Indemnifying
Person shall have been prejudiced thereby.
(b) The Indemnifying Person may, at its own expense,
(i) participate in the defense of any claim, suit,
action or proceeding, and
(ii) upon notice to the Indemnified Person and the
delivery by the Indemnifying Person to the Indemnified Person
of a written agreement that the Indemnified Person is
entitled to indemnification for all Losses arising out of such
claim, suit, action or proceeding and that the Indemnifying
Person shall be liable for the entire amount of any Loss, at
any time during the course of any such claim, suit, action or
proceeding,
assume the defense thereof, provided that:
(iii) the Indemnifying Person's counsel is reasonably
satisfactory to the Indemnified Person; and
(iv) the Indemnifying Person shall thereafter consult
with the Indemnified Person upon the Indemnified Person's
reasonable request for such consultation from time to time
with respect to such claim, suit, action or proceeding.
(c) If the Indemnifying Person assumes such defense, the
Indemnified Person shall have the right (but not the duty) to
participate in the defense thereof and to employ counsel, at its
own expense, separate from the counsel employed by the Indemnifying
Person.
(d) If, however, the Indemnified Person reasonably determines
in its judgment that representation by the Indemnifying Person's
counsel of both the Indemnifying Person and the Indemnified Person
would present such counsel with a conflict of interest, then such
Indemnified Person may employ separate counsel to represent or
defend it in any such claim, action, suit or proceeding, and the
Indemnifying Person shall pay the fees and disbursements of such
separate counsel.
(e) Whether or not the Indemnifying Person chooses to defend
or prosecute any such claim, suit, action or proceeding, all of the
Parties hereto shall cooperate in the defense or prosecution
thereof.
10.5 Settlement or Compromise.
(a) Any settlement or compromise made or caused to be made by
the Indemnified Person or the Indemnifying Person, as the case may
be, of any claim, suit, action or proceeding shall also be binding
upon the Indemnifying Person or the Indemnified Person, as the case
may be, in the same manner as if a final judgment or decree had
been entered by a court of competent jurisdiction in the amount of
such settlement or compromise; provided, however, that no
obligation, restriction, or Loss shall be imposed on the
Indemnified Person as a result of such settlement without its prior
written consent.
(b) The Indemnified Person will give the Indemnifying Person
at least ten (10) days notice of any proposed settlement or
compromise of any claim, suit, action or proceeding it is
defending, during which time the Indemnifying Person may reject
such proposed settlement or compromise; provided, however, that
from and after such rejection, the Indemnifying Person shall be
obligated to assume the defense of and full and complete liability
and responsibility for such claim, suit, action or proceeding and
any and all Losses in connection therewith in excess of the amount
of un-indemnifiable Losses which the Indemnified Person would have
been obligated to pay under the proposed settlement or compromise.
10.6 Failure of Indemnifying Person to Act.
In the event that the Indemnifying Person does not elect to
assume the defense of any claim, suit, action or proceeding, then
any failure of the Indemnified Person to defend or to participate
in the defense of any such claim, suit, action or proceeding or to
cause the same to be done, shall not relieve the Indemnifying
Person of its obligations hereunder.
10.7 Claims Against Escrow. Not applicable.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses.
(a) The Sellers shall pay all expenses of the Sellers and
the Company (including attorneys' fees and expenses), and the Buyer
shall pay all expenses of the Buyer (including attorneys' fees and
expenses), in each case incurred in connection with this Agreement
and the transactions contemplated hereby.
(b) The Sellers shall pay all sales, use, stamp, transfer,
service, recording, real estate and like taxes or fees, if any,
imposed by any Governmental Authority in connection with the
transfer and assignment of the Shares.
11.2 Amendment.
This Agreement may be amended, modified or supplemented but
only in writing signed by each of the Parties hereto.
11.3 Notices.
(a) Any notice, request, instruction or other document
required by the terms of this Agreement to be given to any other
Party hereto shall be in writing and shall be given either
(i) by telephonic facsimile, in which case notice shall
be presumptively deemed to have been given at the date and
time displayed on the sender's transmission confirmation
receipt showing the successful receipt thereof by the
recipient;
(ii) by hand delivery or Federal Express or other method
in which the date of delivery is recorded by the delivery
service, in which case notice shall be presumptively deemed to
have been given at the time that records of the delivery
service indicate the writing was delivered to the addressee;
(iii) by prepaid telegram, in which case notice shall be
presumptively deemed to have been given at the time that the
records of the telegraphic agency indicate that the telegram
was telephoned or delivered to the recipient or addressee, as
the case may be; or
(iv) by U.S. mail to be sent by registered or certified
mail, postage prepaid, with return receipt requested, in which
case notice shall be presumptively deemed to have been given
forty-eight (48) hours after the letter was deposited with the
United States Postal Service.
(b) Notice shall be sent:
(i) If to the Buyer, to:
First Capital Partners, MM, Inc.
0000 X. Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Tel: (000)-000-0000
Facsimile Telephone Number: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
1700 Bank of America Building
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Whiteniore, Esq.
(ii) If to the Company, to:
Xxxxxx Tree Construction
0000 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Telephone Number: (702) __________
Facsimile Telephone Number: (702) __________
with a copy (which shall constitute notice) to:
NevWest Securities Corporation
Xxxxxxx Xxxxxx Xxxxxx, Esq.,
0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx
Xxxxx X-0,
Telephone Number: (702)938 -0610
Facsimile Telephone Number: (000) 000-0000
(iii) If to the Sellers, to:
Xxxxx & Xxx Xxxxxx
0000 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Telephone Number: (702) __________
Facsimile Telephone Number: (702) __________
And:
Xxxx Xxxxxxx
0000X. Xxxxxxxx Xxxxxx
Xxxxx Xxx Xxxxx, Xxxxxx 00000
Telephone Number: 000-000-0000
Facsimile Telephone Number: 000-000-0000
(iv) or to such other address as a Party may have specified
in writing to the other Parties using the procedures specified
above in this Section.
11.4 Effect of Investigation.
(a) Any due diligence review, audit or other investigation or
inquiry undertaken or performed by or on behalf of the Buyer shall
not limit, qualify, modify or amend the representations, warranties
or covenants of, or indemnities by, the Sellers or the Company made
or undertaken pursuant to this Agreement, irrespective of the
knowledge and information received (or which should have been
received) therefrom by the Buyer.
(b) Any due diligence review, audit or other investigation or
inquiry undertaken or performed by or on behalf of the Sellers or
the Company shall not limit, qualify, modify or amend the
representations, warranties and covenants of, or indemnities by,
the Buyer made or undertaken pursuant to this Agreement,
irrespective of the knowledge and information received (or which
should have been received) therefrom by the Sellers or the Company.
11.5 Waivers.
(a) The failure of a Party hereto at any time or times to
require performance of any provision hereof shall in no manner
affect its right at a later time to enforce the same.
(b) No waiver by a Party of any condition or of any breach of
any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in
any one or more instances shall be deemed to be a further or
continuing waiver of any such condition or breach in other
instances or a waiver of any other condition or breach of any other
term, covenant, representation or warranty.
11.6 Counterparts.
This Agreement may be executed in one or more counterparts,
and by different Parties hereto in separate counterparts, each of
which when so executed shall be deemed an original, but all of
which together shall constitute one and the same instrument.
11.7 Interpretation.
(a) The headings preceding the text of Articles and Sections
included in this Agreement and the headings to Exhibits attached to
this Agreement are for convenience only and shall not be deemed
part of this Agreement or be given any effect in interpreting this
Agreement.
(b) The use of the masculine, feminine or neuter gender
herein shall not limit any provision of this Agreement. The use of
the terms "including" or "include" shall in all cases herein mean
"including, without limitation" or "include, without limitation",
respectively.
(c) Underscored references to Articles, Sections, Subsections
or Exhibits shall refer to those portions of this Agreement.
(d) Consummation of the transactions contemplated herein
shall not be deemed a waiver of a breach of or inaccuracy in any
representation, warranty or covenant or of any party's rights and
remedies with regard thereto.
(e) No specific representation, warranty or covenant
contained herein shall limit the generality or applicability of a
more general representation, warranty or covenant contained herein.
(f) A breach of or inaccuracy in any representation, warranty
or covenant shall not be affected by the fact that any more general
or less general representation, warranty or covenant was not also
breached or inaccurate.
11.8 Assignment.
(a) This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective estates, heirs,
legal representatives, successors and assigns.
(b) No assignment of any rights or obligations hereunder may
be made by any Seller or by the Company without the prior written
consent of the Buyer.
(c) The Buyer may freely assign its rights and obligations
hereunder without the consent of the Sellers or of the Company,
and upon such assignment, the rights and obligations of the Buyer
under this Agreement shall be binding upon and inure to the benefit
of the Buyer's Assignee or its Successor in interest, as the case
may be be.
11.9 No Third-Party Beneficiaries.
This Agreement is solely for the benefit of the Parties hereto
and, to the extent provided herein, their respective estates,
heirs, successors, Affiliates, directors, officers, employees,
agents and representatives, and no provision of this Agreement
shall be deemed to confer upon other third parties any remedy,
claim, liability, reimbursement, cause of action or other right.
11.10 Publicity.
Prior to the Closing Date, except as required by Law or the
rules of any stock exchange, no public announcement or other
publicity regarding the transactions referred to herein shall be
made by the Buyer, the Seller, the Company or any of their
respective Affiliates, officers, directors, employees,
representatives or agents, without the prior written agreement of
the Buyer and the Seller, in any case, as to form, content, timing
and manner of distribution or publication; provided, however, that
nothing in this Section shall prevent such parties from discussing
such transactions with those Persons whose approval, agreement or
opinion, as the case may be, is required for consummation of such
particular transaction or transactions.
11.11 Liquidated Damages. Not applicable.
11.12 Further Assurances.
Upon the reasonable request of the Buyer, the Sellers will on
and after the Closing Date execute and deliver to the Buyer such
other documents, releases, assignments and other instruments as may
be required to effectuate completely the transfer and assignment to
the Buyer of, and to vest fully in the Buyer title to, the Shares,
and to otherwise carry out the purposes of this Agreement.
11.13 Severability.
If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality or enforce ability
of the other provisions hereof shall not be affected thereby, and
there shall be deemed substituted for the provision at issue a
valid, legal and enforceable provision as similar as possible to
the provision at issue.
11.14 Remedies Cumulative.
Unless otherwise specified, the remedies provided in this,
Agreement shall be cumulative and shall not preclude the assertion
or exercise of any other rights or remedies available by law, in
equity or otherwise.
11.15 Entire Understanding.
This Agreement sets forth the entire agreement and
understanding of the Parties hereto and supersede any and all prior
agreements, arrangements and understandings among the Parties.
11.16 Brokers.
(a) The Parties acknowledge that NevWest Securities
Corporation introduced them to each other for purposes of entering
into the within transaction and that no other broker or finder was
engaged by them, or has acted on their behalf, in connection with
this Agreement or the transactions contemplated hereby.
(b) The Sellers shall be solely responsible for paying any
brokerage commission or finder's fee to NevWest Securities
Corporation, and the Sellers agree to indemnify and hold the Buyer
harmless from and against any claim by any other broker or finder
who alleges that it acted on any Party's behalf for any fee,
commission or payment resulting from, or arising out of, the
negotiation or execution of this Agreement or the consummation of
the transactions contemplated hereby.
11.17 Applicable Law; Resolution of Disputes; Venue.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of
Nevada, without giving effect to the, principles of conflicts of
Law thereof.
(b) The Parties hereto irrevocably agree and consent that all
disputes concerning this Agreement and the Related Agreements or
any claim or issue of any nature (whether brought by the Parties
hereto or by any other person whatsoever) arising from or relating
to this Agreement or to the corporate steps taken to enter into it
(including, without limitation, claims for alleged fraud, breach of
fiduciary duty, breach of contract, tort, etc.) which cannot be
resolved within reasonable time through discussions between the
opposing entities, shall be resolved solely and exclusively by
means of arbitration to be conducted in Las Vegas, Nevada, which
arbitration will proceed in accordance with the rules of the
American Arbitration Association (or any successor organization
thereto) then in force for resolution of commercial disputes.
(c) The Arbitrators themselves shall have the right to
determine and to arbitrate the threshold issue of arbitrability
itself, the decision of the Arbitrators shall be final, conclusive,
and binding upon the opposing entities, and a judgment upon the
award may be obtained and entered in any federal or state court of
competent jurisdiction.
(d) Each entity or Party involved in litigation or
arbitration shall be responsible for its own costs and expenses of
any litigation or arbitration proceeding, including its own
attorney's fees (for any litigation, arbitration, and any appeals).
11.18 Jurisdiction of Disputes; Waiver of Jury Trial.
In the event any party to this Agreement commences any
litigation, proceeding or other legal action in connection with or
relating to this Agreement, any Related Agreement or any matters
described or contemplated herein or therein, with respect to any of
the matters described or contemplated herein or therein, the
Parties to this Agreement hereby:
(a) agree as an alternative method of service to service of
process in any legal proceeding by mailing of copies thereof to
such party at its address set forth here in for communications to
such party;
(b) agree that any service made as provided herein shall be
effective and binding service in every respect; and
(c) agree that nothing herein shall affect the rights of any
party to effect service of process in any other manner permitted by
Law; and
EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS
AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED
OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY
AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH
WAIVER.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed and delivered as of the date first
above written.
THE BUYER:
FIRST CAPITAL PARTNERS, MM, INC.
By: /s/ Xxxxx Xxxxxx, President,
Secretary
THE COMPANY:
XXXXXX TREE CONSTRUCTION, INC.
By: /s/ Xxxxx Xxxxxx, President
By:/s/ Xxx Xxxxxx, Secretary
THE SELLERS:
XXX XXXXXX
By:/s/ Xxx Xxxxxx
XXXXX XXXXXX
By:/s/ Xxxxx Xxxxxx
XXXX XXXXXXX
By: /s/ Xxxx Xxxxxxx
EXHIBITS BEGIN ON THE FOLLOWING PAGE.
EXHIBIT 2.1
SELLERS AND PARTIES
Name of Party Number of Shares Owned Cash Amount to Be Paid
and to Be Sold
Xxx Xxxxxx 1,000,000 $40,000.00
Xxxxx Xxxxxx 1,000,000 $40,000.00
Xxxx Xxxxxxx 50,000 $5,000.00
Xxxxxxxxx Xxxxx/JTC** - $16,000.00
NevWest Securities - $19,000.00
Corporation
Xxxxxx/Xxxxxx Tree - $4,449.00
Construction*
TOTAL 2,050,000 $124,449.00
*Xxxxx and Xxx Xxxxxx shall purchase tools and equipment
presently owned by Xxxxxx Tree Construction for a purchase
price of $4,449.00 which payment shall be remitted to the
Company at closing.
**At Closing, Xxxxxxxxx Xxxxx shall repaid principal of 50,000.00
plus interest accrued for the month of October, 2001 of 625.00
for a total payment of $50,625.00. On March 20, 2001, the Company
received short-term financing from Xx. Xxxxx in the amount of
$50,000. During the six-month term of the note the annualized
percentage rate is 15%. The Company will pay interest payments on
a monthly basis and at the end of the term the final interest
payment and the principal is due. In addition, the individual
shall receive 25,000 shares of $0.001 par value common stock as
an enticement within 30 days from the execution of the note.
April 20, 2001 $625.00 PAID
May 20, 2001 $625.00 PAID
June 20, 2001 $625.00 PAID
July 20, 2001 $625.00 PAID
August 20, 2001 $625.00 PAID
September 20, 2001 $625.00 PAID
October 1, 2001 $625.00
EXHIBIT 3.3
CONTRACTS
None.
EXHIBIT 3.6
LIABILITIES, DEBTS, CLAIMS OR OBLIGATIONS
1. Xxxxxxxxx Xxxxx Promissory Note to be paid in full at closing.
EXHIBIT 3.8
ENCUMBERED TANGIBLE AND INTANGIBLE ASSETS,
PROPERTIES AND RIGHTS
None.
EXHIBIT 3.12
INVENTORY
None.
EXHIBIT 3.14
TRADEMARKS, TRADE NAMES,
SERVICE MARKS, PATENTS AND COPYRIGHTS
1. The entity name, "Xxxxxx Tree Construction, Inc." duly
registered with the Secretary State of Nevada.
EXHIBIT 3.15
PENDING CONTRACTS OR AGREEMENTS
None.
EXHIBIT 3.16
LICENSES, CERTIFICATES, PERMITS, FRANCHISES, RIGHTS, CODE APPROVALS
AND PRIVATE PRODUCT APPROVALS
LICENSEE NAME: XXXXXX TREE CONSTRUCTION
INC
ADDRESS: 0000 XXXXXX XXXXXX XXXXXX
XXX XXXXX, XX 00000
PHONE: (000)000-0000
LICENSE STATUS: ACTIVE
STATUS DATE: 03/29/2001
STATUS REASON:
LICENSE ORIGIN DATE: 03/29/2001
LICENSE EXPIRE DATE: 03/31/2002
BUSINESS TYPE: CORPORATION
LIMIT AMOUNT: $100,000.00
LICENSE CLASS: B - GENERAL BUILDING
SUBCLASSES: 2- RESIDENTIAL & SMALL COMMERCIAL
BOND TYPE: SURETY BOND
BOND NUMBER: PM011075209
BOND AGENT: XXXXXXXXX, XXXXXXXX A
BOND COMPANY: PEERLESS INSURANCE COMPANY
BOND AMOUNT: $10,000.00
EFFECTIVE DATE: 3/28/2001
CANCELATION DATE: N/A
PRINCIPALS:
XXXXXX, XXXXX XXXXXXX / PRESIDENT
XXXXXXX, XXXX XXX / QUAL EMPLOYEE
COLE II, XXXXX R / OTHER
EXHIBIT 3.17
POLICIES OF FIRE, LIABILITY, WORKERS' COMPENSATION, TITLE AND OTHER
FORMS OF INSURANCE OWNED, HELD BY OR APPLICABLE TO THE COMPANY (OR
ITS ASSETS OR BUSINESS)
None.
EXHIBIT 3.17(a)
WORKERS' COMPENSATION, GENERAL LIABILITY, PROPERTY OR OTHER
INSURANCE POLICY CLAIMS
None.
EXHIBIT 3.21
ENVIRONMENTAL MATTERS
None.
EXHIBIT 3.22
LITIGATION
None.
SCHEDULE 3.4
ISSUANCES OF SECURITIES
The Company's capitalization history is as follows:
1. On July 26, 1999, two founding shareholders purchased
2,000,000 shares of the authorized common stock at par value for
cash, or $2,000.00. This original stock offering was made
according to Section 4(2) of the Securities Act of 1933, as
amended.
2. In February of 2000, the Company completed an offering of
997,301 shares of its common stock to approximately 54 unaffiliated
shareholders at a price of $0.05 per share for gross total receipts
of $49,865.00. This offering was made in reliance upon an exemption
from the registration provisions of the Securities Act of 1933, as
amended, in accordance with Regulation D, Rule 504 of the Act.
3. During July 2000, the Company entered into an management
agreement with Xxxx Xxxxxxx, a shareholder and director, whereby
the Company issued 100,000 shares of its $0.001 par value common
stock valued at $5,000. Of the total, $100 is considered common
stock and $4,900 is considered additional paid-in capital.
The $5,000 has been appropriately expensed as consulting fees.
4. On November 6, 2001, the Company issued to Xxxxxxxxx Xxxxx,
25,000 restricted shares of Common Stock as an equity kicker in
conjunction with a loan made by Xx. Xxxxx to the Company for the
principal sum of $50,000.00 as reflected in a promissory executed
by the Company on March 20, 2001.
SCHEDULE 3.24
BANK ACCOUNTS
1. BANK OF AMERICA ACCT NO. 0049-61803562
2. RBC DAIN CORRESPONDENT SERVICES 12E3-6101-4882
