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Exhibit 10.9
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is made this 30th of
September, 1998, by and among TOUPES TECHNOLOGY LICENSING, INC., Florida
corporation ("TTL"); BROUNLEY ASSOCIATES, INC., a Florida corporation
("Brounley"); and the persons listed in Exhibit "A-1" hereof who are the owners
of record of all the issued and outstanding stock of Brounley who execute and
deliver the Agreement ("Brounley Stockholders"), based on the following:
Recitals
TTL wishes to acquire all the issued and outstanding stock of Brounley in
exchange for stock of TTL in a transaction intended to qualify as a tax-free
exchange pursuant to section 368(a)(l)(B) of the Internal Revenue Code of 1986,
as amended. The parties intend for this Agreement to represent the terms and
conditions of such tax-free reorganization, which Agreement the parties hereby
adopt.
Agreement
Based on the stated premises, which are incorporated herein by reference,
and for and in consideration of the mutual covenants and agreements hereinafter
set forth, the mutual benefits to the parties to be derived herefrom, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is hereby agreed as follows:
ARTICLE I
EXCHANGE OF STOCK
1.01 Exchange of Shares. On the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined in Section 1.05
hereof), the Brounley Stockholders shall assign, transfer, and deliver to TTL,
free and clear of all liens, pledges, encumbrances, charges, restrictions, or
claims of any kind, nature, or description, all issued and outstanding shares of
common stock of Brounley (the "Brounley Shares") held by Brounley Stockholders
which shares shall represent all issued and outstanding shares of Brounley
common stock which total 22,222 shares, and TTL agrees to acquire such shares on
such date by issuing and delivering in exchange therefor an aggregate of 900,000
unregistered shares of TTL common stock, par value $0.001 per share, (the "TTL
Common Stock"). Such shares TTL Common Stock shall be issued pro rata based on
the number of Brounley Shares held and as set forth opposite the Brounley
Stockholder's respective names in Exhibit "A-l". All 900,000 shares of TTL
Common Stock to be issued and delivered pursuant to this Agreement shall be
appropriately adjusted to take into account any stock split, stock dividend,
reverse stock split, recapitalization, or similar change in the TTL Common Stock
which may occur between the date of the execution of this Agreement and the
Closing Date.
1.02 Delivery of Certificates by Brounley Stockholders. The transfer of
Brounley Shares by the Brounley Stockholders shall be effected by the delivery
to TTL at the Closing (as set forth in Section 1.05 hereof) of a certificate
issued to TTL representing all of the issued and outstanding shares of Brounley.
1.03 Operation as Wholly-Owned Subsidiary. After giving effect to the
transaction contemplated hereby, TTL will own all the issued and outstanding
shares of Brounley and Brounley shall be merged with TTL.
1.04 Further Assurances. At the Closing and from time to time thereafter,
the Brounley Stockholders shall execute such additional instruments and take
such other action as TTL may reasonably request, without undue cost to the
Brounley Stockholders in order to more effectively sell, transfer, and assign
clear title and ownership in the Brounley Shares to TTL.
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1.05 Closing and Parties. The Closing contemplated hereby shall be held at
the principal office of TTL in Largo, Florida on or before 9:00 am. September
30, 1998, or on another date to be agreed to in writing by the parties (the
"Closing Date"). The Agreement may be closed at any time following approval by a
majority of the stockholders of TTL Common Stock as set forth in Section 4.02
hereof and the Brounley Stockholders as set forth in Section 5.02. The Closing
may be accomplished by wire, express mail, overnight courier conference
telephone call or as otherwise agreed to by the respective parties or their duly
authorized representatives.
1.06 Closing Events.
(a) TTL Deliveries. Subject to fulfillment or waiver of the conditions set
forth in Article IV, TTL shall deliver to Brounley at Closing all the following:
(i) A certificate of good standing from the secretary of State of
Florida, certifying that TTL is in good standing as a corporation in the State
of Florida;
(ii) Incumbency and specimen signature certificates dated the
Closing Date with respect to the officers of TTL executing this Agreement and
any other document delivered pursuant hereto on behalf of TTL;
(iii) Copies of the resolutions of TTL's board of directors and
shareholder minutes or consents authorizing the execution and performance of
this Agreement and the contemplated transactions, certified by the secretary or
an assistant secretary of TTL as of the Closing Date;
(iv) The certificate contemplated by Section 4.03, duly executed by
the chief executive officer of TTL;
(v) The certificate contemplated by Section 4.04, dated the Closing
Date, signed by the chief executive officer of TTL;
(vi) Certificates for 900,000 shares of TTL Common Stock in the
names of the Brounley Stockholders and in the amounts set forth in Exhibit "A-1"
which shall be issued by TTL's transfer agent immediately following Closing or
as expeditiously as possible thereafter; and
In addition to the above deliveries, TTL shall take all steps and actions
as Brounley and Brounley Stockholders may reasonably request or as may otherwise
be reasonably necessary to consummate the transactions contemplated herebv.
(b) Brounley Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article V, Brounley and/or Brounley Stockholder's shall
deliver to TTL at Closing all the following:
(i) A certificate of good standing from the secretary of state of
Florida, issued as of a date within five days prior to the Closing Date
certifying that Brounley is in good standing as a corporation in the State of
Florida;
(ii) Incumbency and specimen signature certificates dated the
Closing Date with respect to the officers of Brounley executing this Agreement
and any other document delivered pursuant hereto on behalf of Brounley;
(iii) Copies of resolutions of the board of directors and of the
stockholders of Brounley authorizing the execution and performance of this
Agreement and the contemplated transactions, certified by the secretary or an
assistant secretary of Brounley as of the Closing Date;
(iv) The certificate contemplated by Section 5.03, executed by the
chief operating officer of Brounley; and
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(v) The certificate contemplated by Section 5.04, dated the Closing
Date, signed by the chief operating officer of Brounley.
In addition to the above deliveries, Brounley shall take all steps and
actions as TTL may reasonably request or as may otherwise be reasonably
necessary to consummate the transactions contemplated hereby.
1.07. Termination.
(a) This Agreement may be terminated by the board of directors of either
TTL or Brounley at any time prior to the Closing Date if:
(i) There shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this Agreement and
which, in the reasonable judgment of such board of directors, made in good faith
and based upon the advice of its legal counsel, makes it inadvisable to proceed
with the transactions contemplated by this Agreement;
(ii) Any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate such
transactions or in the reasonable judgment of such board of directors, made in
good faith and based on the advice of counsel, there is substantial likelihood
that any such approval will not be obtained or will be obtained only on a
condition or conditions which would be unduly burdensome, making it inadvisable
to proceed with the exchange;
In the event of termination pursuant to this paragraph (a) of Section
1.07, no obligation, right, or liability shall arise hereunder, and each party
shall bear all of the expenses incurred by it in connection with the
negotiation, preparation, and execution of this Agreement and the transactions
contemplated hereby.
(b) This Agreement may be terminated at any time prior to the
Closing Date by action of the board of directors of TTL if (i) Brounley shall
fail to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties of
Brounley contained herein shall be inaccurate in any material respect or (ii)
TTL determines that there has been or is likely to be any material adverse
change in the financial or legal condition of Brounley. In the event of
termination pursuant to this paragraph (b) of this Section 1.07, no obligation,
right, remedy, or liability shall arise hereunder. All parties shall bear their
own costs incurred in connection with the negotiation, preparation, and
execution of this Agreement and the transactions contemplated hereby.
(c) This Agreement may be terminated at any time prior to the
Closing Date by action of the board of directors of Brounley if (i) TTL shall
fail to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties of
TTL contained herein shall be inaccurate in any material respect, or (ii)
Brounley determines that there has been or is likely to be any adverse change in
the financial or legal condition of TTL. In the event of termination pursuant to
this paragraph (c) of this Section 1.07. no obligation, right, remedy, or
liability shall arise hereunder. All parties shall each bear their own costs
incurred in connection with the negotiation, preparation, and execution of this
Agreement and the transactions contemplated hereby.
1.08 Registration of TTL Shares. Concurrent with the Closing of this
Agreement, or immediately thereafter, TTL shall file a form SB-2 registration
statement to register certain of its equity securities with the Securities and
Exchange Commission ("SEC") pursuant to the Securities Act of 1933, as amended
("xxx 0000 Xxx") and shall use its best efforts to have said registration
statement approved by the S.E.C. Out of the total shares being registered by
TTL, 105,000 of those shares shall be the TTL Common Stock being transferred to
the Brounley Stockholders pursuant to this Agreement. Thus, TTL shall submit
for registration 105,000 out of the 900,000 ITT shares in total being
transferred to Brounley Stockholders (hereinafter "Registered Shares"). The
Registered Shares shall be issued and held as set forth in Exhibit A-1 opposite
the respective Brounley Stockholders' names.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF TTL
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As an inducement to, and to obtain the reliance of Brounley, TTL
represents and warrants as follows:
2.01 Organization. TTL is, and will be on the Closing Date, a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida and has the corporate power and is and will be duly authorized,
qualified, franchised, and licensed under all applicable laws, regulations,
ordinances, and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted, and there are no other jurisdictions in which it is not so qualified
in which the character and location of the assets owned by it or the nature of
the material business transacted by it requires qualification, except where
failure to do so would not have a material adverse effect on its business,
operations, properties, assets or condition. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement in accordance with the terms hereof will not, violate any
provision of TTL's articles of incorporation or bylaws, or other agreement to
which it is a party or by which it is bound.
2.02 Approval of Agreement. TTL has full power, authority, and legal right
and has taken, or will take, all action required by law, its articles of
incorporation, bylaws, and otherwise to execute and deliver this Agreement and
to consummate the transactions herein contemplated. The board of directors of
TTL has authorized and approved the execution, delivery, and performance of this
Agreement and the transactions contemplated hereby; subject to the approval of
the TTL stockholders and compliance with state and federal corporate and
securities laws.
2.03 Capitalization. The authorized capitalization of TTL consists of
20,000,000 shares of common stock, $0.001 par value, of which 15,595,454 shares
are issued and outstanding. All issued and outstanding shares of TTL are legally
issued, fully paid, and nonassessable and not issued in violation of the
preemptive or other right of any person. There are no dividends or other amounts
due or payable with respect to any of the shares of capital stock of TTL.
2.04 Financial Statements.
(a) Included in Schedule 2.04 are the financial statements which
were filed by TTL in connection with TTL's Form 10-SB, as well as quarterly
audited financial statements for the periods ending March 31, 1998 and June 30,
1998 (collectively "l0Qs"), which financial statements have been duly filed with
the Securities and Exchange Commission ("SEC") as required by the 0000 Xxx.
(b) The financial statements of TTL delivered pursuant to Section
2.04(a) have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved as explained in
the notes to such financial statements. The TTL financial statements present
fairly, in all material respects, as of their respective dates, the financial
position of TTL. TTL did not have, as of the date of any such financial
statements, except as and to the extent reflected or reserved against therein,
any liabilities or obligations (absolute or contingent) which should be
reflected therein in accordance with generally accepted accounting principles,
and all assets reflected therein present fairly the assets of TTL in accordance
with generally accepted accounting principles.
(c) TTL has filed or will file as of the Closing Date all tax
returns required to be filed by it from inception to the Closing Date. All such
returns and reports are accurate and correct in all material respect. TTL has no
material liabilities with respect to the payment of any federal, state, county,
local, or other taxes (including any deficiencies, interest, or penalties)
accrued for or applicable to the period ended on the date of the most recent
balance sheet of TTL, except to the extent reflected on such balance sheet and
all such dates and years and periods prior thereto and for which TTL may at said
date have been liable in its own right or as transferee of the assets of, or as
successor to, any other corporation or entity, except for taxes accrued but not
yet due and payable, and to the best knowledge of TTL, no deficiency assessment
or proposed adjustment of any such tax return is pending, proposed or
contemplated. To the best knowledge of TTL, none of such income tax returns has
been examined or is currently being examined by the Internal Revenue Service and
no deficiency assessment or proposed adjustment of any such return is pending,
proposed or contemplated. TTL has not made any election pursuant to the
provisions of any applicable tax laws (other than elections that relate solely
to methods of accounting, depreciation, or amortization) that would have a
material adverse affect on TTL, its financial condition, its business as
presently conducted or proposed to be conducted, or any of its respective
properties or material assets. There are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any tax return of
TTL.
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2.05 Outstanding Warrants and Options. TTL has no existing warrants or
options, calls, or commitments of any nature relating to the authorized and
unissued TTL Common Stock, except as disclosed in documents which are publicly
filed by TTL.
2.06 Information. The information concerning TTL set forth in this
Agreement is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading. TTL shall cause the schedules delivered by it
pursuant hereto and the instruments delivered to Brounley hereunder to be
updated after the date hereof up to and including the Closing Date.
2.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement or the schedules hereto, since the date of the most recent TTL balance
sheet described in Section 2.04 and included in the information referred to in
Section 2.06:
(a) There has not been (i) any material adverse change in the
business, operations, properties, level of inventory, assets, or financial
condition of TTL or (ii) any damage, destruction, or loss to TTL (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or conditions of TTL;
(b) To the best knowledge of TTL, it has not become subject to any
law or regulation which materially and adversely affects, or in the future would
be reasonably expected to adversely affect, the business, operations,
properties, assets, or condition of TTL.
2.08 Litigation and Proceeding. There are no material actions, suits, or
administrative or other proceedings pending or, to the knowledge of TTL,
threatened by or against TTL or adversely affecting TTL or its properties, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind. TTL
does not have any knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality.
2.09 Compliance With Laws and Regulations. TTL has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance (i) could not
materially and adversely affect the business, operations, properties, assets, or
condition of TTL or (ii) could not result in the occurrence of any material
liability for TTL. To the best knowledge of TTL, the consummation of this
transaction will comply with all applicable statutes and regulations, subject to
the preparation and filing of any forms required by state and federal securities
laws.
2.10 Compliance with Security Laws. TTL has complied with all applicable
security statutes and regulation of any federal, state or other governmental
entity or agency thereof, including the filing of any required documents in
regards to all sales of TTL Stock. TTL makes the additional following securities
disclosures as a material inducement to Brounley to enter into this transaction:
a) TTL's common stock is currently traded on the OTC Bulletin Board ("OTC"
or "Over-the Counter") and TTL is in compliance with all applicable securities
rules and regulations regarding the OTC trading of its securities; and
b) TTL voluntarily became a reporting company pursuant to section 12(g) of
the Securities Exchange Act of 1934 by virtue of filing a Form 10-SB
registration statement which was approved by the SEC and is currently effective;
and
c) TTL has filed for and been approved for a manual filing exemption with
Standard & Poor's (S&P) for 1998, and to the best of TTL's knowledge, its
securities have been and are currently trading in compliance with applicable
federal and state blue sky securities laws; and
d) TTL, through its approved market maker(s), has filed a current Form 211
with the N.A.S.D.R. pursuant to Rule 15(c)-211, and has otherwise maintained
and updated the Form 211 as required by applicable securities laws and
regulations; and
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e) TTL has met all current reporting requirements of Rule 12(g) and any
other applicable securities law or regulation applicable to TTL's trading
market.
2.11 Material Contract Defaults. TTL is not in default in any material
respect under the terms of any outstanding contract, agreement, lease, or other
commitment which is material to the business, operations, properties, assets, or
condition of TTL, and there is no event of default or other event which, with
notice or lapse of time or both, would constitute a default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which TTL has not taken adequate steps to prevent such a default from
occurring.
2.12 No Conflict With Other Instruments. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement will not
result in the breach of any term or provision of, or constitute an event of
default under, any material indenture, mortgage, deed of trust, or other
material contract, agreement, or instrument to which TTL is a party or to which
any of its properties or operations are subject.
2.13 TTL Schedules. TTL has delivered to Brounley the following schedules,
which are collectively referred to as the "TTL Schedules" and which consist of
the following separate schedules dated as of the date of execution of this
Agreement, all certified by a duly authorized officer of TTL as complete, true,
and accurate:
(a) A schedule including copies of the articles of incorporation and
bylaws of TTL in effect as of the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the board
of directors of TTL approving this Agreement and the transactions herein
contemplated;
(c) A schedule setting forth the financial statements required
pursuant to Section 2.04(a) hereof, and
(d) A schedule setting forth any other information, together with
any required copies of documents, required to be disclosed the TTL Schedules by
Sections 2.01 through 2 13. TTL shall cause the TTL Schedules and the
instruments delivered to Brounley hereunder to be updated after the date hereof
up to and including a specified date not more than three business days prior to
the Closing Date. Such updated TTL Schedules, certified in the same manner as
the original TTL Schedules, shall be delivered prior to and as a condition
precedent to the obligation of Brounley to close.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF
BROUNLEY
As an inducement to, and to obtain the reliance of, TTL, Brounley
represents and warrants as follows:
3.01 Organization. Brounley is, and will be on the Closing Date, a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida and has the corporate power and is and will be duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, and there are no other jurisdictions in which it is
not so qualified in which the character and location of the assets owned by it
or the nature of the material business transacted by it requires qualification,
except where failure to do so would not have a material adverse effect on its
business, operations, properties, assets or condition of Brounley. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of Brounley's articles of incorporation or
bylaws, or other material agreement to which it is a party or by which it is
bound.
3.02 Approval of Agreement. Brounley has full power, authority, and legal
right and has taken, or will take, all action required by law, its articles of
incorporation, bylaws, or otherwise to execute and deliver this Agreement and to
consummate the transactions herein contemplated. The board of directors of
Brounley have authorized and
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approved the execution, delivery, and performance of this Agreement and the
transactions contemplated hereby; subject to the approval of the Brounley
Stockholders and compliance with state and federal corporate and securities
laws.
3.03 Capitalization. The authorized capitalization of Brounley consists of
100,000 shares of common stock, $1.00 par value, of which as of the date hereof
22,222 shares are issued and outstanding. All issued and outstanding shares of
Brounley are legally issued, fully paid, and nonassessable and not issued in
violation of the preemptive or other right of any person. There are no dividends
or other amounts due or payable with respect to any of the shares of capital
stock of Brounley.
3.04 Financial Statements.
(a) Included in Schedule 3.04 are the federal and state corporate
tax returns of Brounley for the fiscal years ended 1996 and 1997 as well as the
unaudited balance sheet and income statement prepared by management of Brounley
for the period ending August 31,1998.
(b) The financial statements of Brounley present fairly, as of their
respective dates, the financial position of Brounley. Brounley did not have, as
of the date of any such balance sheets, except as and to the extent reflected or
reserved against therein, any liabilities or obligations (absolute or
contingent) which should be reflected in any financial statements or the notes
thereto and all assets reflected therein present fairly the assets of Brounley.
(c) Brounley has filed or will have filed as of the Closing Date all
tax returns required to be filed by it from inception to the Closing Date. All
such returns and reports are accurate and correct in all material respects.
Brounley has no material liabilities with respect to the payment of any federal,
state, county, local, or other taxes (including any deficiencies, interest, or
penalties) accrued for or applicable to the period ended on the date of the most
recent unaudited balance sheet of Brounley, except to the extent reflected on
such balance sheet and adequately provided for, and all such dates and years and
periods prior thereto and for which Brounley may at said date have been liable
in its own right or as transferee of the assets of, or as successor to, any
other corporation or entity, except for taxes accrued but not yet due and
payable, and to Brounley's knowledge no deficiency assessment or proposed
adjustment of any such tax return is pending, proposed or contemplated. Proper
and accurate amounts of taxes have been withheld by or on behalf of Brounley
with respect to all material compensation paid to employees of Brounley for all
periods ending on or before the date hereof, and all deposits required with
respect to compensation paid to such employees have been made, in complete
compliance with the provisions of all applicable federal, state, and local tax
and other laws. To Brounley's knowledge, none of such income tax returns has
been examined or is currently being examined by the Internal Revenue Service,
and no deficiency assessment or proposed adjustment of any such return is
pending, proposed, or contemplated. Brounley has not made any election pursuant
to the provisions of any applicable tax laws (other than elections that relate
solely to methods of accounting, depreciation, or amortization) that would have
a material adverse affect on Brounley, its financial condition, its business as
presently conducted or proposed to be conducted, or any of its properties or
material assets. There are no tax liens upon any of the assets of Brounley.
There are no outstanding agreements or waivers extending the statutory period of
limitation applicable to any tax return of Brounley.
3.05 Outstanding Warrants and Options. Brounley has no issued warrants or
options, calls, or commitments of any nature relating to the authorized and
unissued Brounley Common Stock.
3.06 Information. The information concerning Brounley set forth in this
Agreement and in the schedules delivered by Brounley pursuant hereto is complete
and accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were made, not
misleading. Brounley shall cause the schedules delivered by Brounley pursuant
hereto to TTL hereunder to be updated after the date hereof up to and including
the Closing Date.
3.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement since the date of the most recent Brounley balance sheet described in
Section 3.04 and included in the information referred to in Section 3.06:
(a) There has not been (i) any material adverse change in the
business, operations, properties, level of inventory, assets, or condition of
Brounley or (ii) any damage, destruction, or loss to Brounley materially and
adversely affecting the business, operations, properties, assets, or conditions
of Brounley; and
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(b) Brounley has not (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to stockholders
or purchased or redeemed, or agreed to purchase or redeem, any of its capital
stock; (iii) waived any rights of value which in the aggregate are extraordinary
and material considering the business of Brounley; (iv) made any material change
in its method of accounting; (v) entered into any other material transactions
other than those contemplated by this Agreement; (vi) made any material accrual
or material arrangement for or payment of bonuses or special compensation of any
kind or any severance or termination pay to any present or former officer or
employee; or (vii) made any material increase in any profit-sharing, bonus,
deferred compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement made to, for, or with their officers, directors,
or employees; and
(c) Brounley has not (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other corporate securities
calling for the issuance thereof, (ii) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability (absolute
or contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent) other
than current liabilities reflected in or shown on the most recent Brounley
balance sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or transfer, any
of its material assets, properties, or rights, or agreed to cancel, any material
debts or claims; (v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such amendment or
termination is material, considering the business of Brounley; or (vi) issued,
delivered, or agreed to issue or deliver any stock, bonds, or other corporate
securities including debentures (whether authorized and unissued or held as
treasury stock); and
(d) To the best knowledge of Brounley, it has not become subject to
any law or regulation which materially and adversely affects, or in the future
would be reasonably expected to adversely affect, the business, operations,
properties, assets, or condition of Brounley.
3.08 Title and Related Matters. Except as provided herein or disclosed in
the most recent Brounley balance sheet of its properties, inventory, interests
in properties, technology, whether patented or unpatented and assets, which are
reflected in the most recent Brounley balance sheet or acquired after that date
(except properties, interests in properties, and assets sold or otherwise
disposed of since such date in the ordinary course of business), free and clear
of all mortgages, liens, pledges, charges, or encumbrances, except (i) statutory
liens or claims not yet delinquent, and (ii) such imperfections of title and
easements as do not, and will not, materially detract from or interfere with,
the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties. To the best knowledge of Brounley, its technology does not infringe
on the copyright, patent, trade secret, know-how, or other proprietary right of
any other person or entity and comprises all such fights necessary to permit the
operation of the business of Brounley as now being conducted or as contemplated.
3.09 Litigation and Proceedings. There are no material actions, suits, or
proceedings pending or, to the knowledge of Brounley, threatened by or against
Brounley or adversely affecting Brounley, at law or in equity, before any court
or other governmental agency or instrumentality domestic or foreign, or before
any arbitrator of any kind. Brounley does not have any knowledge of any default
on its part with respect to any judgment, order, writ, injunction, decree,
award, rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality.
3.10 Material Contract Defaults. Brounley is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations, properties,
assets, or condition of Brounley, and there is no event of default or other
event which, with notice or lapse of time or both, would constitute a default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Brounley has not taken adequate steps to prevent
such a default from occurring.
3.11 No Conflict With Other Instruments. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement will not
result in the breach of any term or provision of, or constitute an event of
default under, any material indenture, mortgage, deed of trust, or other
material contract, agreement, or instrument to which Brounley is a party or to
which any of its properties or operations are subject.
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3.12 Governmental Authorizations. Brounley has all licenses, franchises,
permits, and other governmental authorizations that are legally required to
enable it to conduct its business in all material respects as conducted on the
date of this Agreement. Except for compliance with federal and state securities
and corporation laws, as hereinafter provided, no authorization, approval,
consent, or order of or registration, declaration, or filing with, any court or
other governmental body is required in connection with the execution and
delivery by Brounley of this Agreement and the consummation by Brounley of the
transactions contemplated hereby.
3.13 Compliance With Laws and Regulations. Brounley has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets, or
condition of Brounley or except to the extent that noncompliance would not
result in the occurrence of any material liability for Brounley. To the best
knowledge of Brounley, the consummation of this transaction will comply with all
applicable statutes and regulations, subject to the preparation and filing of
any forms required by state and federal security laws.
3.14 Subsidiary. Brounley does not own, beneficially or of record, any
equity securities in any other entity.
3.15 Brounley Schedules. Brounley has delivered to TTL the following
schedules, which are collectively referred to as the "Brounley Schedules" and
which consist of the following separate schedules dated as of the date of
execution of this Agreement, and instruments and TTL as of such date, all
certified by the chief executive officer of Brounley as complete, true, and
accurate:
(a) A schedule including copies of the articles of incorporation and
bylaws of Brounley and all amendments thereto in effect as of the date of this
Agreement;
(b) A schedule containing copies of resolutions adopted by the board
of directors of Brounley approving this Agreement and the transactions herein
contemplated as referred to in Section 3.02;
(c) A schedule setting forth a description of any material adverse
change in the business, operations, property, inventory, assets, or condition of
Brounley since the most recent Brounley balance sheet, required to be provided
pursuant to Section 3.04 hereof,
(d) A schedule setting forth the financial statements required
pursuant to Section 3.0(a) hereof, and
(e) A schedule setting forth any other information, together with
any required copies of documents, required to be disclosed in the Brounley
Schedules by Sections 3.01 through 3.14.
Brounley shall cause the Brounley Schedules and the instruments delivered
to TTL hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date. Such
updated Brounley Schedules, certified in the same manner as the original
Brounley Schedules, shall be delivered prior to and as a condition precedent to
the obligation of TTL to close.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF
BROUNLEY
The obligations of Brounley under this Agreement are subject to the
satisfaction of Brounley, at or before the Closing Date, of the following
conditions:
4.01 Shareholder Approval. TTL shall obtain the written consent of a
majority of its stockholders to approve the transactions contemplated by this
Agreement, including the acquisition of Brounley through the issuance of TTL
common stock for all of the issued and outstanding Shares. Said written consent
shall be provided to Brounley at closing.
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4.02 Accuracy of Representations. The representations and warranties made
by TTL in this Agreement were true when made and shall be true at the Closing
Date with the same force and affect as if such representations and warranties
were made at and as of the Closing Date (except for changes therein permitted by
this Agreement), and TTL shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by TTL
prior to or at the Closing. Brounley shall be furnished with certificates,
signed by duly authorized officers of TTL and dated the Closing Date, to the
foregoing effect.
4.03 Officer's Certificates. Brounley shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
executive officer of TTL to the effect that to such officers best knowledge no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of TTL threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement.
Furthermore, based on certificates of good standing, representations of
government agencies, and TTL's own documents and information, the certificate
shall represent, to the best knowledge of the officer, that:
(a) This Agreement has been duly approved by TTL's board of
directors and stockholders and has been duly executed and delivered in the name
and on behalf of TTL by its duly authorized officers pursuant to, and in
compliance with, authority granted by the board of directors of TTL pursuant to
a unanimous consent;
(b) There have been no material adverse changes in TTL up to and
including the date of the certificate;
(c) All conditions required by this Agreement have been met,
satisfied, or performed by TTL;
(d) All authorizations, consents, approvals, registrations, and/or
filings with any governmental body, agency, or court required in connection with
the execution and delivery of the documents by TTL have been obtained and are in
full force and effect or, if not required to have been obtained, will be in full
force and effect by such tine as may be required; and
(e) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body pending or
threatened against TTL, wherein an unfavorable decision, ruling, or finding
could have an adverse effect on the financial condition of TTL, the operation of
TTL, or the acquisition and reorganization contemplated herein, or any agreement
or instrument by which TTL is bound or in any way contests the existence of TTL.
4.04 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business, or operations of TTL, nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business, or operations of TTL.
4.05 Good Standings. Brounley shall have received a certificate of good
standing from the secretary of State of Florida, certifying that TTL is in good
standing as a corporation in the State of Florida.
4.06 Other Items. Brounley shall have received such further documents,
certificates, or instruments relating to the transactions contemplated hereby as
Brounley may reasonably request.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF
TTL
The obligations of TTL under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
5.01 Shareholder Approval. TTL shall obtain through a majority written
consent of its stockholders, authorization and approval for this Agreement and
the transactions contemplated hereby.
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5.02 Brounley Stockholders. Holders of all of the issued and outstanding
Brounley Shares shall agree to this Agreement and the exchange of shares
contemplated by this Agreement.
5.03 Accuracy of Representations. The representations and warranties made
by Brounley and the Brounley Stockholders in this Agreement were true when made
and shall be true at the Closing Date with the same force and affect as if such
representations and warranties were made at and as of the Closing Date (except
for changes therein permitted by this Agreement), and Brounley shall have
performed or compiled with all covenants and conditions required by this
Agreement to be performed or complied with by Brounley prior to or at the
Closing. TTL shall be furnished with a certificate, signed by a duly authorized
officer of Brounley and dated the Closing Date, to the foregoing effect.
5.04 Officer's Certificates. TTL shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
operating officer of Brounley to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of Brounley,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement. Furthermore,
based on certificates of good standing, representations of government agencies,
and Brounley's own documents, the certificate shall represent, to the best
knowledge of the officer, that:
(a) This Agreement has been duly approved by Brounley's board of
directors and stockholders and has been duly executed and delivered in the name
and on behalf of Brounley by its duly authorized officers pursuant to, and in
compliance with, authority granted by the board of directors of Brounley
pursuant to a unanimous consent of its board of directors and a majority vote of
its stockholders;
(b) Except as provided or permitted herein, there have been no
material adverse changes in Brounley up to and including the date of the
certificate;
(c) All authorizations, consents, approvals, registrations, and/or
filing with any governmental body, agency, or court required in connection with
the execution and delivery of the documents by Brounley have been obtained and
are in full force and effect or, if not required to have been obtained will be
in full force and effect by such time as may be required; and
(d) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body pending or
threatened against Brounley, wherein an unfavorable decision, ruling, or finding
would have an adverse affect on the financial condition of Brounley, the
operation of Brounley, or the acquisition and reorganization contemplated
herein, or any material agreement or instrument by which Brounley is bound or
would in any way contest the existence of Brounley.
5.05 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business or operations of Brounley, nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause of create any material
adverse change in the financial condition, business, or operations of Brounley.
5.06 Good Standing. TTL shall have received a certificate of good standing
from the appropriate authority in the State of Florida, dated as of a date with
five days prior to the Closing Date, certifying that the Brounley is in good
standing as a corporation in the State of Florida.
5.07 Other Items. TTL shall have received such further documents
certificates or instruments relating to the transactions contemplated hereby as
TTL may reasonably request.
ARTICLE VI
SPECIAL COVENANTS
6.01 Activities of TTL and Brounley.
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(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the respective schedules to be delivered by TTL and
Brounley pursuant hereto or as permitted or contemplated by this Agreement, TTL
and Brounley will each:
(i) Carry on its business in substantially the same manner as
it has heretofore;
(ii) Maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by it;
(iii) Perform in all material respects all of its obligations
under material contracts, leases, and instruments relating to or affecting its
assets, properties, and business;
(iv) Use its best efforts to maintain and preserve it business
Organization intact, to retain its key employees, and to maintain its
relationships with its material suppliers and customers;
(v) Duly and timely file for all taxable periods ending on or
prior to the Closing Date all federal, state, county, and local tax returns
required to be filed by or on behalf of such entity or for which such entity may
be held responsible and shall pay, or cause to pay, all taxes required to be
shown as due and payable on such returns, as well as all installments of tax due
and payable during the period commencing on the date of this Agreement and
ending on the Closing Date; and
(vi) Fully comply with and perform in all material respects
all obligations and duties imposed on it by all federal and state laws and all
rules, regulations, and orders imposed by federal or state governmental
authorities.
(b) From and after the date of this Agreement and except as provided
herein until the Closing Date, TTL and Brounley will not:
(i) Make any change in its articles of incorporation or
bylaws;
(ii) Enter into or amend any material contract, agreement, or
other instrument of any of the types described in such party's schedules, except
that a party may enter into or amend any contract, agreement, or other
instrument in the ordinary course of business; and
(iii) Enter into any agreement for the sale of Brounley
securities without the prior approval of the other party.
6.02 Access to Properties and Records. Until the Closing Date, Brounley
and TTL will afford to the other party's officers and authorized representatives
full access to the properties, books, and records of the other party in order
that each party may have full opportunity to make such reasonable investigation
as it shall desire to make of the affairs of Brounley or TTL and will furnish
the other party with such additional financial and other information as to the
business and properties of Brounley or TTL as each party shall from time to time
reasonably request.
6.03 Indemnification by Brounley. Brounley will indemnify and hold
harmless TTL and its directors and officers, and each person, if any, who
controls TTL within the meaning of the Securities Act, from and against any and
all losses, claims, damages, expenses, liabilities, or actions to which any of
them may become subject under applicable law (including the Securities Act and
the Securities Exchange Act) and will reimburse them for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any claims or actions, whether or not resulting in liability, insofar
as such losses, claims, damages, expenses, liabilities, or actions arise out of
or are based upon any untrue statement or alleged untrue statement of material
fact contained in any application or statement filed with a governmental body or
arising out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary in order to
make the statements therein not misleading, but only insofar as any such
statement or omission was made in reliance upon and in conformity with
information furnished in writing by Brounley expressly for use therein. The
indemnity agreement contained in this Section 6.03 shall remain operative
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and in full force and effect, regardless of any investigation made by or on
behalf of TTL and shall survive the consummation of the transactions
contemplated by this Agreement for a period of one year.
6.04 Indemnification by TTL. TTL will indemnify and hold harmless
Brounley, the Brounley Stockholders, Brounley's directors and officers, and each
person, if any, who controls Brounley within the meaning of the Securities Act,
from and against any and all losses, claims, damages, expenses, liabilities, or
actions to which any of them may become subject under applicable law (including
the Securities Act and the Securities Exchange Act) and will reimburse them for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any claims or actions, whether or not resulting in
liability, insofar as such losses, claims, damages, expenses, liabilities, or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any application or statement filed
with a governmental body or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary in order to make the statements therein not misleading, but only
insofar as any such statement or omission was made in reliance upon and in
conformity with information furnished in writing by TTL expressly for use
therein. The indemnity agreement contained in this Section 6.04 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of Brounley and shall survive the consummation of the transactions
contemplated by this Agreement for a period of one year.
6.05 The Acquisition of TTL Common Stock. TTL and Brounley understand and
agree that the consummation of this Agreement including the issuance of the TTL
Common Stock to Brounley in exchange for the Brounley Shares as contemplated
hereby, constitutes the offer and sale of securities under the Securities Act
and applicable state statutes. TTL and Brounley agree that such transactions
shall be consummated in reliance on exemptions from the registration and
prospectus delivery requirements of such statutes which depend, among other
items, on the circumstances under which such securities are acquired.
(a) In order to provide documentation for reliance upon exemptions
from the registration and prospectus delivery requirements for such
transactions, the signing of this Agreement and the delivery of appropriate
separate representations shall constitute the parties acceptance of, and
concurrence in, the following representations and warranties:
(i) The Brounley Stockholders acknowledge that neither the SEC
nor the securities commission of any state or other federal agency has made any
determination as to the merits of acquiring TTL Common Stock, and that this
transaction involves certain risks.
(ii) Brounley Stockholders have such knowledge and experience
in business and financial matters that they are capable of evaluating such
business risks.
(iii) All information which the Brounley Stockholders have
provided to TTL or their representatives concerning their suitability and intent
to hold shares in TTL following the transactions contemplated hereby is
complete, accurate, and correct.
(iv) The Brounley Stockholders understand that the TTL Common
Stock has not been registered, but is being acquired by reason of a specific
exemption under the Securities Act as well as under certain state statutes for
transactions not involving any public offering and that any disposition of the
subject TTL Common Stock may, under certain circumstances, be inconsistent with
this exemption and may make Brounley or TTL an "underwriter", within the meaning
of the Securities Act. It is understood that the definition of "underwriter"
focuses upon the concept of "distribution" and that any subsequent disposition
of the subject TTL Common Stock can only be effected in transactions which are
not considered distributions. Generally, the term "distribution" is considered
synonymous with "public offering" or any other offer or sale involving general
solicitation or general advertising. Under present law, in determining whether a
distribution occurs when securities are sold into the public market, under
certain circumstances one must consider the availability of public information
regarding the issuer, a holding period for the securities sufficient to assure
that the persons desiring to sell the securities without registration first bear
the economic risk of their investment, and a limitation on the number of
securities which the stockholder is permitted to sell and on the manner of sale,
thereby reducing the potential impact of the sale on the trading markets. These
criteria are set forth specifically
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in rule 144 promulgated under the Securities Act, and, after one year after the
date the TTL Common Stock or Brounley Shares is fully paid for, as calculated in
accordance with rule 144(d) sales of securities in reliance upon rule 144 can
only be made in limited amounts in accordance with the terms and conditions of
that rule. After two years from the date the securities are fully paid for, as
calculated in accordance with rule 144(d) they can generally be sold without
meeting those conditions, provided the holder is not (and has not been for the
preceding three months) an affiliate of the issuer.
(v) The Brounley Stockholders acknowledge that the shares of
TTL Common Stock must be held and may not be sold, transferred, or otherwise
disposed of for value unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. TTL is not
under any obligation to register the TTL Common Stock under the Securities Act
except as stated in this Agreement. If rule 144 is available after one year and
prior to two years following the date the shares are fully paid for, only
routine sales of such TTL Common Stock in limited amounts can be made in
reliance upon rule 144 in accordance with the terms and conditions of that rule.
TTL is not under any obligation to make rule 144 available except as set forth
in this Agreement and in the event rule 144 is not available, compliance with
Regulation A or some other disclosure exemption may be required before Brounley
Stockholders can sell, transfer, or otherwise dispose of such TTL Common Stock
without registration under the Securities Act. Subject to compliance with
federal and state securities laws, TTL's registrar and transfer agent will
maintain a stop transfer order against the registration of transfer of the TTL
Common Stock held by Brounley Stockholders and the certificates representing the
TTL Common Stock will bear a legend in substantially the following form so
restricting the sale of such securities:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING
OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
(vi) TTL will require Brounley Stockholders to provide an
opinion of counsel reasonably acceptable to TTL stating that the transfer is
proper. TTL agrees to provide Brounley with assistance and cooperation in good
faith when Brounley seeks to sell any shares which are free from restrictions or
exempt therefrom.
(b) In connection with the transaction contemplated by this
Agreement, TTL shall file, with the assistance of its legal counsel, such
notices, applications, reports, or other instruments as may be deemed by it to
be necessary or appropriate in an effort to document reliance on such
exemptions, and with the appropriate regulatory authority in the states where
the Brounley Stockholders reside unless an exemption requiring no filing is
available in such jurisdictions, all to the extent and in the manner as may be
deemed by TTL to be appropriate.
(c) The Brounley Stockholders acknowledge that the basis for relying
on exemptions from registration or qualifications are factual, depending on the
conduct of the various parties, and that no legal opinion or other assurance
will be required or given to the effect that the transactions contemplated
hereby are in fact exempt from registration or qualification.
6.06 Securities Filings. TTL shall be responsible for the preparation and
filing of any required forms, or documents, deemed necessary by TTL and its
legal counsel, with the Securities and Exchange Commission and in any
jurisdiction which would require a filing with a governmental agency as a result
of the transactions contemplated in this Agreement.
6.07 Sales of Securities Under Rule 144, If Applicable.
(a) TTL will use its best efforts to at all times satisfy the
current public information requirements of rule 144 promulgated under the
Securities Act so that its stockholders can sell restricted securities that have
been held for one year or more or such other restricted period as required by
rule 144 as it is from time to time amended.
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(b) Upon being informed in writing by any person holding restricted
stock of TTL as of the date of this Agreement that such person intends to sell
any shares under rule 144 promulgated under the Securities Act (including any
rule adopted in substitution or replacement thereof), TTL will certify in
writing to such person that it is in compliance with rule 144 current public
information requirements to enable such person to sell such person's restricted
stock under rule 144, as may be applicable under the circumstances.
(c) If any certificate representing any such restricted stock is
presented to TTL's transfer agent for registration or transfer in connection
with any sales theretofore made under rule 144, provided such certificate is
duly endorsed for transfer by the appropriate person(s) or accompanied by a
separate stock power duly executed by the appropriate person(s) in each case
with reasonable assurances that such endorsements are genuine and effective, and
is accompanied by an opinion of counsel satisfactory to TTL and its counsel that
such transfer has complied with the requirements of rule 144, as the case may
be, TTL will use its best efforts to cooperate with the shareholder and/or
transfer agent with the registration or transfer in connection with any sales
made under rule 144.
ARTICLE VII
MISCELLANEOUS
7.01 Brokers. The Brounley Stockholders have agreed to issue 45,000 shares
of their TTL Common Stock to certain finders in this transaction. Except as
provided herein, TTL and Brounley agree that there were no other finders or
brokers involved in bringing the parties together or who were instrumental in
the negotiation, execution, or consummation of this Agreement. Further, TTL and
Brounley each agree to indemnify the other against any claim by any third person
for any commission, brokerage, or finder's fee or other payment with respect to
this Agreement or the transactions contemplated hereby based on any alleged
agreement or understanding between such party and such third person, whether
express or implied, from the actions of such party.
The covenants set forth in this section shall survive the Closing
Date and the consummation of the transactions herein contemplated.
7.02 No Representation Regarding Tax Treatment. No representation or
warranty is being made by any party to any other regarding the treatment of this
transaction for federal or state income taxation. Each party has relied
exclusively on its own legal, accounting, and other tax adviser regarding the
treatment of this transaction for federal and state income taxes and on no
representation, warranty, or assurance from any other party or such other
party's legal, accounting, or other adviser.
7.03 Governing Law. This Agreement shall be governed by, enforced and
construed under and in accordance with the laws of the State of Florida.
7.04 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered, if sent by
facsimile or telecopy transmission or other electronic communication confirmed
by registered or certified mail, postage prepaid, or if sent by prepaid
overnight courier addressed as follows:
If to TTL, to: 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
If to Brounley, to: 0000 000xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices, hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered or sent by facsimile or
telecopy transmission or other electronic communication, or one day after the
date so sent by overnight courier.
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7.05 Attorney's Fees. In the event that any party institutes any action or
suit to enforce this Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall reimburse the nonbreaching
party or parties for all costs, including reasonable attorneys' fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
7.06 Schedules, Knowledge. Whenever in any section of this Agreement
reference is made to information set forth in the schedules provided by TTL or
Brounley such reference is to information specifically set forth in such
schedules and clearly marked to identify the section of this Agreement to which
the information relates. Whenever any representation is made to the "knowledge"
of any party, it shall be deemed to be a representation that no officer or
director of such party, after reasonable investigation, has any knowledge of
such matters.
7.07 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof All previous
agreements between the parties, whether written or oral, have been merged into
this Agreement. This Agreement alone fully and completely expresses the
agreement of the parties relating to the subject matter hereof. There are no
other courses of dealing, understandings, agreements, representations, or
warranties, written or oral, except as set forth herein.
7.08 Survival; Termination. The representations, warranties, and covenants
of the respective parties shall survive the Closing Date and the consummation of
the transactions herein contemplated for a period of six months from the Closing
Date, unless otherwise provided herein.
7.09 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
7.10 Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and such remedies may be enforced concurrently, and no waiver by
any party of the performance of any obligation by the other shall be construed
as a waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this Agreement may
be amended by a writing signed by all parties hereto, with respect to any of the
terms contained herein, and any term or condition of this Agreement may be
waived or the time for performance thereof may be extended by a writing signed
by the party or parties for whose benefit the provision is intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first above written.
XXXXX TECHNOLOGY LICENSING, INC., BROUNLEY ASSOCIATES, INC.,
a Florida corporation a Florida corporation
By: /s/ [ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ ------------------------------
Name: Name: Xxxxxx X. Xxxxxxxx
---------------------------- ----------------------------
As: President As: Vice-President
------------------------------ ------------------------------
STATE OF FLORIDA
COUNTY OF PINELLAS
On this 30th day of September, 1998, personally appeared before me Xxxxxx X.
Xxxxxxxx, whose identity is personally known to me and who by me duly sworn, did
say that he is the ________________________ of Xxxxx Technology Licensing, Inc.
and that said document was signed by him of behalf of said corporation by
authority of its bylaws, and said _________________ acknowledged to me that said
corporation executed the same.
/s/ XXXXXXX X. XXXXXXXXX
[NOTARY PUBLIC SEAL ------------------------
OF XXXXXXX X. XXXXXXXXX]
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NOTARY PUBLIC
STATE OF FLORIDA
COUNTY OF PINELLAS
On this 30th day of September, 1998, personally appeared before me Xxxx X.
Xxxxx, whose identity is personally known to me and who by me duly sworn, did
say that he is the __________________________ of Brounley Associates, Inc. and
that said document was signed by him of behalf of said corporation by authority
of its bylaws, and said __________________ acknowledged to me that said
corporation executed the same.
/s/ XXXXXXX X. XXXXXXXXX
[NOTARY PUBLIC SEAL ------------------------
OF XXXXXXX X. XXXXXXXXX]
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Exhibit X-x
Xxxxxxxx Associates, Inc.
List of Stockholders
and Designees
No. of TTL Shares
to be Received Number of Shares
Name of Shareholder in Exchange to be Registered Signature
------------------- ----------- ---------------- ---------
Xxxx X. Xxxxxxxxxxxx 461,700 20,000 /s/ Xxxx X. Xxxxxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxx 222,300 20,000 /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx 85,500 10,000 /s/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxx X. Xxxx 85,500 10,000
--------------------
Xxxxx X. Xxxxxx 45,000 45,000 /s/ Xxxxx X. Xxxxxx
------ ------ ------------------------
TOTAL SHARES 900,000 105,000
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Exhibit X-x
Xxxxxxxx Associates, Inc.
List of Stockholders
and Designees
No. of TTL Shares
to be Received Number of Shares
Name of Shareholder in Exchange to be Registered Signature
------------------- ----------- ---------------- ---------
Xxxx X. Xxxxxxxxxxxx 461,700 20,000
------------------------
Xxxxxxx X. Xxxxxxxx 222,300 20,000
------------------------
Xxxxxx X. Xxxxxxxx 85,500 10,000
------------------------
Xxxx X. Xxxx 85,500 10,000 /s/ Xxxx X. Xxxx
------------------------
Xxxxx X. Xxxxxx 45,000 45,000
------ ------ ------------------------
TOTAL SHARES 900,000 105,000
19
20
SECRETARY'S CERTIFICATE
AND
CERTIFICATE OF INCUMBENCY
OF
BROUNLEY ASSOCIATES, INC.
I, Xxxx X. Xxxxxxxxxxxx, hereby certify that I am now, and at all times
mentioned herein have been, the duly elected, qualified, and acting Secretary of
BROUNLEY ASSOCIATES, INC. ("Brounley" or the "Corporation"), a corporation duly
organized and validly existing under the laws of the State of Florida, and as
such officer, I have access to the records of Brounley, which records reflect
that:
1. Resolutions. Attached hereto as Annex I and incorporated herein by
reference is a true and correct copy of resolutions which have been duly adopted
by the unanimous written consent of the members of the Board of Directors and
Shareholders of the Corporation; none of such resolutions have been amended,
modified, or repealed in any respect, and all of such resolutions are in full
force and effect on the date hereof.
2. Incumbency. The following named individuals are duly elected, qualified
and acting officers of the Corporation holding the offices set forth opposite
their respective names as of the date hereof, and the signatures set opposite
the respective names and titles of said officers are their true, authentic and
genuine signatures.
Name Title Specimen Signature
Xxxx X. Xxxxxxxxxxxx Vice /s/ Xxxx X. Xxxxxxxxxxxx
President/ --------------------------------
Secretary
Xxxxxx X. Xxxxxxxx Vice President /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
3. Articles and Bylaws. True and complete copies of the articles of
incorporation and the bylaws of the Corporation, as amended to date and which
are presently in full force and effect, are attached hereto as Annex 2 and Annex
3, respectively, and incorporated herein by reference.
4. No resolution has been adopted by the Board of Directors nor has action
been taken by the Corporation, its officers, directors, or shareholders in
contemplation of the dissolution of the Corporation.
{The balance of this page was intentionally left blank.}
21
IN WITNESS WHEREOF, I have duly executed this Certificate effective this
30th day of September, 1998.
/s/ Xxxx X. Xxxxxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxxxxx
Secretary
22
ANNEX I
Resolutions of Board of Directors
and Shareholders of BROUNLEY ASSOCIATES, INC.
The undersigned, being the entire Board of Directors and Shareholders of
BROUNLEY ASSOCIATES, INC., a Florida corporation ("Brounley" or the
"Corporation"), hereby consent to and unanimously adopt the following
resolutions by written action, acting without meeting pursuant to the Florida
Business Corporation Act and the Corporation's Bylaws.
WHEREAS, the Shareholders of Brounley desire to enter into that certain
Share Exchange Agreement ("Share Exchange") with Xxxxx Technology Licensing,
Inc. ("TTL"), whereby TTL will acquire all of the issued and outstanding stock
of Brounley totaling 22,222 shares, in exchange for 900,000 unregistered shares
of stock of TTL in a transaction intended to qualify as a tax-free exchange
pursuant to ss. 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
WHEREAS, in connection with the Share Exchange, the Board of Directors and
Shareholders have reviewed all of the documentation encompassing the transaction
which includes the Agreement and the Exhibits and Schedules to the Agreement
(the "Transaction Documents"); and
WHEREAS, the Board of Directors and Shareholders deem it to be in the best
interest of the Corporation to enter into the Transaction Documents on behalf of
the Corporation and to consummate the Share Exchange contemplated between the
parties.
NOW THEREFORE, it is
RESOLVED, that the Board of Directors hereby approves, adopts and ratifies
the Transaction Documents and all of their terms and conditions and shall cause
the Transaction Documents to be executed together with all necessary consents;
and
RESOLVED, that the Shareholders hereby approve, adopt and ratify the
Transaction Documents and all of their terms and conditions and shall cause the
Transaction Documents to be executed together with all necessary consents; and
RESOLVED, that Xxxx X. Xxxxxxxxxxxx or Xxxxxx X. Xxxxxxxx, the Vice
Presidents of Brounley is hereby authorized and directed to execute and deliver
the Transaction Documents for and on behalf and in the name of the Corporation,
with such changes in the terms and provisions thereof as the officer executing
the same shall, in such officer's sole discretion, deem necessary or desirable
and in the best interest of the Corporation, such officer's signature being
conclusive evidence that such officer did so deem any such changes to be
necessary or desirable and in the best interest of the Corporation; and
FURTHER RESOLVED, that the Vice President of the Corporation is hereby
authorized, empowered and directed to perform all acts and do all things which
such officer may deem necessary
23
or desirable to consummate the Share Exchange contemplated by the Transaction
Documents; and
FURTHER RESOLVED, that the Secretary of the Corporation is hereby
authorized, empowered and directed to certify and attest any documents which the
Secretary may deem necessary or appropriate to consummate the Reorganization
contemplated by the Transaction Documents on behalf of the Corporation; and
FURTHER RESOLVED, that the Secretary of the Corporation is directed to
certify this written consent and the contents of these resolutions and deliver
such certification in support of the authority of the above officers to act on
behalf of the Corporation; and
FURTHER RESOLVED, that the Directors and Shareholders are hereby
authorized to execute this Written Action and that upon such execution, this
Written Action is approved, adopted and ratified as the act and deed of the
Directors and Shareholders of the Corporation.
DATED this 30th day of September, 1998.
/s/ Xxxx X. Xxxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxxx
Director, Vice President, Secretary
Shareholder
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
Director, Vice President, Shareholder
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
Director, Shareholder
-----------------------------------
Xxxx X. Xxxx
Shareholder
24
or desirable to consummate the Share Exchange contemplated by the Transaction
Documents; and
FURTHER RESOLVED, that the Secretary of the Corporation is hereby
authorized, empowered and directed to certify and attest any documents which the
Secretary may deem necessary or appropriate to consummate the Reorganization
contemplated by the Transaction Documents on behalf of the Corporation; and
FURTHER RESOLVED, that the Secretary of the Corporation is directed to
certify this written consent and the consents of these resolutions and deliver
such certification in support of the authority of the above officers to act on
behalf of the Corporation; and
FURTHER RESOLVED, that the Directors and Shareho1ders are hereby
authorized to execute this Written Action that upon such execution, this Written
Action is approved, adopted and ratified as the act and deed of the Directors
and Shareholders of the Corporation.
DATED this 27th day of September, 1998.
-----------------------------------
Xxxx X. Xxxxxxxxxxxx
Director, Vice President, Secretary
Shareholder
-----------------------------------
Xxxxxx X. Xxxxxxxx
Director, Vice President, Shareholder
-----------------------------------
Xxxxxxx X. Xxxxxxxx
Director, Shareholder
/s/ Xxxx X. Xxxx
-----------------------------------
Xxxx X. Xxxx
Shareholder
25
OFFICER'S CERTIFICATE
I, Xxxx X. Xxxxxxxxxxxx, the Vice President of BROUNLEY ASSOCIATES, INC.,
a Florida corporation ("Brounley"), hereby certify, pursuant to that certain
Share Exchange Agreement by and between Brounley and XXXXX TECHNOLOGY LICENSING,
a Florida corporation, dated the 30th day of September, 1998 (the "Agreement")
as follows:
The representations and warranties made by Brounley in this Agreement were
true when made and shall be true at the Closing Date with the same force and
effect as if such representations were made at and as of the Closing Date
(except for changes therein permitted by this Agreement or by mutual consent of
the parties), and Brounley shall have performed or complied with all covenants
and conditions required by this Agreement to be performed or complied with by
Brounley prior to or at the Closing.
Dated this 30th day of September, 1998.
/s/ Xxxx X. Xxxxxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxxxxx
Secretary
