Exhibit 1
1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made this
30th day of June 1997, by and among Gemstar Enterprises, Inc., a Nevada
corporation ("GEI"); Roli Ink Corporation, a Wisconsin corporation ("RIC");
and the persons listed in Exhibit A-1 hereof who are the owners of record of
all the issued and outstanding stock of RIC who execute and deliver the
Agreement ("RIC Stockholders"), based on the following:
Recitals
GEI wishes to acquire all the issued and outstanding stock of RIC in
exchange for stock of GEI in a transaction intended to qualify as a tax-free
exchange pursuant to section 368(a)(1)(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 RIC Stockholders shall assign, transfer, and deliver to GEI, free
and clear of all liens, pledges, encumbrances, charges, restriction, or known
claims of any kind, nature, or description, all issued and outstanding shares
of common stock of RIC (the "RIC Shares") held by RIC Stockholders which
shares shall represent all issued and outstanding shares of RIC common stock,
and GEI agrees to acquire such shares on such date by issuing and delivering
in exchange therefor one hundred thirty and eight tenths (130.8) restricted
shares (post reverse split pursuant to Section 4.01 hereafter referred to as
the "Reverse Stock Split") of GEI common stock, par value $0.001 per share,
(the "GEI Common Stock") for every share of RIC issued and outstanding shares
of common stock or an aggregate of 2,200,056 post split shares of Common
Stock. Such shares of GEI Common Stock shall be issued pro rata based on the
number of RIC Shares held and as set forth opposite the RIC Stockholders
respective names in Exhibit A-1. All 2,200,056 shares of GEI 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 GEI Common Stock which may
occur between the date of the execution of this Agreement and the Closing Date
except for the proposed Reverse Stock Split set forth in Section 4.01.
1.02 Delivery of Certificates by RIC Stockholders. The transfer of
RIC Shares by the RIC Stockholders shall be effected by the delivery to GEI at
the Closing (as set forth in Section 1.05 hereof) of certificates representing
the transferred shares 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
RIC Stockholders' expense.
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1.03 Operation as Wholly-Owned Subsidiary. After giving effect to
the transaction contemplated hereby, GEI will own all the issued and
outstanding shares of RIC and RIC will be a wholly-owned subsidiary of GEI
operating under the name Roli Ink Corporation
1.04 Further Assurances. At the Closing and from time to time
thereafter, the RIC Stockholders shall execute such additional instruments and
take such other action as GEI may reasonably request, without undue cost to
the RIC Stockholders in order to more effectively sell, transfer, and assign
clear title and ownership in the RIC Shares to GEI.
1.05 Closing and Parties. The Closing contemplated hereby shall be
held at a mutually agreeable time and place on or before July 12, 1997, or on
another date not later than thirty (30) days following the date of this
Agreement (the "Closing Date"). The Agreement may be closed at any time
following approval by a majority in interest of the shareholders of GEI's
Common Stock as set forth in Section 5.01 hereof and RIC Stockholders as set
forth in Section 5.02 hereof. All RIC Stockholders who execute and deliver a
copy of the Agreement shall be deemed to be parties to the Agreement and bound
by all the terms, conditions, and covenants hereof. 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. The Closing shall be in conjunction with and
conditioned upon the closing of the acquisition of Safe Environment
Corporation set for in section 6.10 hereof.
1.06 Closing Events.
(a) GEI Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article IV, GEI shall deliver to RIC and RIC
Stockholders at Closing all of the following:
(i) Certificates of good standing from the Secretary of State, issued
as of a date within five days prior to the Closing Date, certifying that GEI
is in good standing as a corporation in the State of Nevada;
(ii) Copies of the resolutions of GEI'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 GEI as of the Closing Date;
(iii) The certificate contemplated by Section 4.03, duly executed by
a duly authorized officer of GEI;
(iv) The certificate contemplated by Section 4.04, dated the Closing
Date, signed by the chief executive officer and principal accounting and
financial officer of GEI; and
In addition to the above deliveries, GEI shall take all steps and actions
as RIC and RIC Stockholders may reasonably request or as may otherwise be
necessary to consummate the transactions contemplated hereby.
(b) RIC's and RIC Stockholders' Deliveries. Subject to fulfillment
or waiver of the conditions set forth in Article V and section 6.10, RIC
and/or RIC Stockholder's shall deliver to GEI at Closing all the following:
(i) Certificate of good standing from the Secretary of State, issued
as of a date within five days prior to the Closing Date certifying that RIC is
in good standing as a corporation in the State of Wisconsin;
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(ii) Incumbency and specimen signature certificates dated the Closing
Date with respect to the officers of RIC executing this Agreement and any
other document delivered pursuant hereto on behalf of RIC;
(iii) Copies of resolutions of the board of directors and of the
stockholders of RIC authorizing the execution and performance of this
Agreement and the contemplated transactions, certified by the secretary or an
assistant secretary of RIC as of the Closing Date;
(iv) The certificate contemplated by Section 5.03, executed by a duly
authorized officer of RIC; and
(v) The certificate contemplated by Section 5.04, dated the Closing
Date, signed by the chief executive officer and principal accounting and
financial officer of RIC.
In addition to the above deliveries, RIC and RIC Stockholders shall take all
steps and actions as GEI may reasonably request or as may otherwise be
necessary to consummate the transactions contemplated hereby.
1.07. Termination
(a) This Agreement may be terminated by the board of directors of
either GEI or RIC 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 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 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 GEI if either RIC or RIC
Stockholders shall fail to comply in any material respect with any of their
covenants or agreements contained in this Agreement or if any of the
representations or warranties of RIC or RIC Stockholders contained herein
shall be inaccurate in any material respect. 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.
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(c) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of RIC (i) if shareholders of RIC
owning more than ten percent (10%) of the issued and outstanding shares of RIC
Stock perfect their dissenter's rights with respect to the approval of this
Agreement and the transactions contemplated hereby, or (ii) if GEI 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
GEI contained herein shall be inaccurate in any material respect. 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.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF GEI
As an inducement to, and to obtain the reliance of RIC and the RIC
Stockholders, GEI represent and warrant as follows:
2.01 Organization. GEI 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 Nevada 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 GEI'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. GEI 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
GEI has authorized and approved the execution, delivery, and performance of
this Agreement and the transactions contemplated hereby; subject to the
approval of the GEI shareholders and compliance with state and federal
corporate and securities laws.
2.03 Capitalization. The authorized capitalization of GEI
consists of 100,000,000 shares of common stock, $0.001 par value, of which
10,758,614 shares are issued and outstanding and 5,000,000 shares of preferred
stock, $0.001 par value, none of which is issued and outstanding. All issued
and outstanding shares of GEI 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 GEI.
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2.04. Financial Statements.
(a) Included in Schedule 2.04 are the audited balance sheets of GEI
as of September 30, 1996, and 1995, and the related statements of operations,
stockholders' equity (deficit), and cash flows for the year ended September
30, 1996, and 1995, and from the date of inception as a development stage
company (April 10, 1993) through September 30, 1996, including the notes
thereto, and the accompanying report of Xxxxxx, Xxxxxxx & Xxxxxxx, independent
certified public accountants. The information in Schedule 2.04 also includes
the balance sheet of GEI as of March 31, 1997, and 1996, and the related
statements of operations, stockholders' equity (deficit), and cash flows for
the six months ended March 31, 1997, and 1996, together with the notes thereto
and representations by the principal accounting and financial officer of GEI
to the effect that such financial statements contain all adjustments (all of
which are normal recurring adjustments) necessary to present fairly the
results of operations and financial position for the periods and as of the
dates indicated.
(b) The audited financial statements 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 GEI balance sheets present fairly, in all material respects, as of their
respective dates, the financial position of GEI. GEI 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 a balance sheet or the notes thereto
prepared in accordance with generally accepted accounting principles under
which they were prepared, and all assets reflected therein presently fairly
the assets of GEI in accordance with generally accepted accounting principles
under which they were prepared. The statements of operations, stockholders'
equity and cash flows present fairly the financial position and result of
operations of GEI as of their respective dates and for the respective periods
covered thereby.
(c) The books and records, financial and otherwise, of GEI are in all
material respects complete and correct and have been maintained in accordance
with sound business and bookkeeping practices so as to accurately and fairly
reflect, in reasonable detail, the transactions and dispositions of the assets
of GEI. GEI has maintained a system of internal accounting controls, under
GEI's circumstances, sufficient to provide reasonable assurances that (i)
transactions have been and are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit the preparation of financial statements in conformity with generally
accepted accounting principles or any other criteria applicable to such
statements and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals, and appropriate action is
taken with respect to any differences.
(d) GEI has filed or will file as 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. GEI
has no 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
audited balance sheet of GEI, except to the extent reflected on such balance
sheet and all such dates and years and periods prior thereto and for which GEI
may at said date have been liable in its own right or as transferee of the
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assets of, or as successor to, any other corporation or entity, except for
taxes accrued but not yet due and payable, and no deficiency assessment or
proposed adjustment of any such tax return is pending, proposed or
contemplated. 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. GEI 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 GEI, 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 GEI.
2.05 Outstanding Warrants and Options. GEI has 551,145 Series "A"
warrants outstanding which entitle the holders thereof to purchase a like
number of shares of Common Stock at an exercise price of $1.60 per share and
548,864 Series "B" warrants outstanding which entitle the holders thereof to
purchase a like number of shares of Common Stock at an exercise price of $4.00
per share. GEI has no outstanding options, calls, or commitments of any
nature relating to the authorized and unissued GEI Common Stock.
2.06 Information. The information concerning GEI 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. GEI shall cause the schedules delivered
by it pursuant hereto and the instruments delivered to RIC 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 GEI
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 condition of
GEI or (ii) any damage, destruction, or loss to GEI (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or conditions of GEI;
(b) GEI 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 or material considering the business of GEI; (iv) made any
material change in its method of management, operation, or accounting; (v)
entered into any other material transactions; (vi) made any accrual or
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;
(vii) increased the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its employees whose monthly
compensation exceeds $1,000; or (viii) made any 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;
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(c) GEI 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 except as stated herein; (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 GEI 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 assets, properties, or rights (except assets,
properties, or rights not used or useful in its business which, in the
aggregate have a value of less than $5,000 or canceled, or agreed to cancel,
any debts or claims (except debts and claims which in the aggregate are of a
value of less than $5,000); (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 GEI and its
subsidiaries; 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 GEI it has not become subject to any law
or regulation which materially and adversely affects, or in the future may
adversely affect, the business, operations, properties, assets, or condition
of GEI.
2.08 Litigation and Proceedings. There are no actions, suits, or
administrative or other proceedings pending or, to the knowledge of GEI,
threatened by or against GEI or affecting GEI 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. GEI 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 Governmental Authorizations. GEI 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 GEI of this Agreement and the consummation by GEI of
the transactions contemplated hereby.
2.10 Compliance With Laws and Regulations. GEI 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 GEI or except to the extent that
noncompliance would not result in the occurrence of any material liability for
GEI.
2.11 GEI Schedules. GEI has delivered to RIC the following
schedules, which are collectively referred to as the "GEI Schedules" and which
consist of separate schedules dated as of the date of execution of this
Agreement, all certified by a duly authorized officer of GEI as complete,
true, and accurate:
(a) A schedule including copies of the articles of incorporation and
bylaws of GEI in effect as of the date of this Agreement;
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(b) A schedule containing copies of resolutions adopted by the board
of directors of GEI approving this Agreement and the transactions herein
contemplated;
(c) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the GEI Schedules by
§§2.01 through 2.10.
GEI shall cause the GEI Schedules and the instruments delivered to RIC
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 GEI Schedules, certified in the same manner as the original GEI
Schedules, shall be delivered prior to and as a condition precedent to the
obligation of RIC to close.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF RIC
As an inducement to, and to obtain the reliance of, GEI, RIC represents
and warrants as follows:
3.01 Organization. RIC 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 Wisconsin 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 RIC.
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 RIC's articles of incorporation or
bylaws, or other agreement to which it is a party or by which it is bound.
3.02 Approval of Agreement. RIC and the RIC Stockholders have full
power, authority, and legal right and have 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 RIC have authorized and approved the
execution, delivery, and performance of this Agreement and the transactions
contemplated hereby; subject to the approval of the RIC Stockholders and
compliance with state and federal corporate and securities laws.
3.03 Capitalization. The authorized capitalization of RIC consists
of five hundred sixty thousand (560,000) shares, $0.10 par value, of which as
of the date hereof sixteen thousand eight hundred and twenty (16,820) shares
are issued and outstanding. All issued and outstanding shares of RIC 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
RIC.
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3.04 Financial Statements.
(a) Included in Schedule 3.04 are the audited balance sheet of RIC as
of December 31, 1996, and 1995, and the related statements of operations, cash
flows, and stockholders' equity for the period from inception in 1985, to
December 31, 1996, including the notes thereto, and the accompanying report
of Xxxxx & Xxxxxxxxx, S.C., independent certified public accountants. At or
prior to the Closing Date, RIC shall deliver the unaudited balance sheet of
RIC as of March 31, 1997, and 1996, and the related statements of operations,
stockholders' equity (deficit), and cash flows for the three months ended
March 31, 1997, and 1996, together with the notes thereto and representations
by the chief operating officer of RIC to the effect that such financial
statements contain all adjustments (all of which are normal recurring
adjustments) necessary to present fairly the results of operations and
financial position for the periods and as of the dates indicated.
(b) The audited financial statements delivered pursuant to Section
3.04(a) have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. The
financial statements of RIC present fairly, as of their respective dates, the
financial position of RIC. RIC 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 prepared in
accordance with generally accepted accounting principles, and all assets
reflected therein present fairly the assets of RIC, in accordance with
generally accepted accounting principles. The statements of revenue and
expenses and cash flows present fairly the financial position and result of
operations of RIC as of their respective dates and for the respective periods
covered thereby.
(c) RIC 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.
RIC 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 RIC, 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 RIC 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 RIC'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 RIC
with respect to all material compensation paid to employees of RIC 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 RIC'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. RIC 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 RIC, 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 RIC. There
are no outstanding agreements or waivers extending the statutory period of
limitation applicable to any tax return of RIC.
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(d) The books and records, financial and otherwise, of RIC are in all
material respects complete and correct and have been maintained in accordance
with sound business and bookkeeping practices so as to accurately and fairly
reflect, in reasonable detail, the transactions and dispositions of the assets
of RIC. RIC has maintained a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions have been
and are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit the
preparation of financial statements in conformity with generally accepted
accounting principles or any other criteria applicable to such statements and
to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals, and appropriate action is taken with respect
to any differences.
3.05 Information. The information concerning RIC set forth in this
Agreement and in the schedules delivered by RIC 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. RIC shall cause the schedules delivered by RIC pursuant
hereto and the instruments delivered to GEI hereunder to be updated after the
date hereof up to and including the Closing Date.
3.06 Absence of Certain Changes or Events. Except as set forth in
this Agreement since the date of the most recent RIC balance sheet described
in Section 3.04 and included in the information referred to in Section 3.05:
(a) There has not been (i) any material adverse change in the
business, operations, properties, level of inventory, assets, or condition of
RIC or (ii) any damage, destruction, or loss to RIC (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or conditions of RIC.
(b) RIC 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 or material considering the business of RIC; (iv) made any
material change in its method of management, operation, or accounting; (v)
entered into any other material transactions; (vi) made any accrual or
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;
(vii) increased the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its employees whose monthly
compensation exceeds $1,000; or (viii) made any 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;
(c) RIC 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 RIC balance
11
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 assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, in the aggregate have a value of less
than $5,000 or canceled, or agreed to cancel, any debts or claims (except
debts and claims which in the aggregate are of a value of less than $5,000);
(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 RIC; 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 RIC, it has not become subject to any
law or regulation which materially and adversely affects, or in the future may
adversely affect, the business, operations, properties, assets, or condition
of RIC.
3.07 Title and Related Matters. Except as provided herein or
disclosed in the most recent RIC balance sheet and the notes thereto, RIC has
good and marketable title to all of its properties, inventory, interests in
properties, and assets, which are reflected in the most recent RIC 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.
3.08 Litigation and Proceedings. Except as otherwise disclosed in
Schedule 3.08, there are no actions, suits, or proceedings pending or, to the
knowledge of RIC, threatened by or against RIC or affecting RIC, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. RIC 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.
3.09 Material Contract Defaults. RIC 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 RIC, 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 RIC has not taken adequate steps to
prevent such a default from occurring.
3.10 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 RIC is
a party or to which any of its properties or operations are subject.
PAGE
12
3.11 Governmental Authorizations. RIC 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 RIC of this Agreement and the consummation by RIC of
the transactions contemplated hereby.
3.12 Compliance With Laws and Regulations. RIC 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 RIC or except to the extent that
noncompliance would not result in the occurrence of any material liability for
RIC.
3.13 Insurance. All of the insurable properties of RIC are insured
for full replacement value (subject to reasonable deductibles) against losses
due to fire and other casualty, with extended coverage, and other risks
customarily insured against by persons operating similar properties in the
localities where such properties are located and under valid and enforceable
policies issued by insurers of recognized responsibility. Such policy or
policies containing substantially equivalent coverage will be outstanding and
in full force at the Closing Date, as hereinafter defined.
3.14 RIC Schedules. RIC has delivered to GEI the following
schedules, which are collectively referred to as the "RIC Schedules" and which
consist of separate schedules dated as of the date of execution of this
Agreement, all certified by the chief executive officer of RIC as complete,
true, and accurate:
(a) A schedule including copies of the articles of incorporation and
bylaws of RIC 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 RIC 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 RIC since the most recent RIC balance sheet, required to be provided
pursuant to Section 3.04 hereof; and
(d) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the RIC Schedules by
Sections 3.01 through 3.13.
RIC shall cause the RIC Schedules and the instruments delivered to GEI
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 RIC Schedules, certified in the same manner as the original RIC
Schedules, shall be delivered prior to and as a condition precedent to the
obligation of GEI to close.
PAGE
13
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF RIC AND THE RIC STOCKHOLDERS
The obligations of RIC and the RIC Stockholder under this Agreement are
subject to the satisfaction, at or before the Closing Date, of the following
conditions:
4.01. Reverse Split. GEI shall call and hold a meeting of its
shareholders, or obtain the written consent of a majority of its shareholders,
to approve a 5 to 1 reverse split of its issued and outstanding Common Stock
which reverse split shall be implemented prior to the Closing of the
transaction contemplated in this Agreement. The reverse split shall not
affect the authorized but unissued shares of the Company but will have the
effect of increasing the exercise price of the outstanding warrants and
reducing the shares issueable on exercise of the outstanding warrants of the
Company.
4.02 Shareholder Approval. GEI shall call and hold a meeting of
its shareholders, or obtain the written consent of a majority of its
shareholders, to approve the transactions contemplated by this agreement
including the acquisition of RIC through the issuance of GEI Common Stock for
all of the issued and outstanding RIC Shares and a change in the name of GEI
to "CG Industries, Inc."
4.03 Accuracy of Representations. The representations and warranties
made by GEI 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 GEI shall have performed or complied with
all covenants and conditions required by this Agreement to be performed or
complied with by GEI prior to or at the Closing. RIC shall be furnished with
certificates, signed by duly authorized officers of GEI and dated the Closing
Date, to the foregoing effect.
4.04 Officer's Certificates. RIC shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
executive officer of GEI to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of GEI
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 GEI's own documents, the certificate shall represent that:
(a) This Agreement has been duly approved by GEI's board of directors
and has been duly executed and delivered in the name and on behalf of GEI by
its duly authorized officers pursuant to, and in compliance with, authority
granted by the board of directors of GEI pursuant to a unanimous consent.
(b) The representations and warranties of GEI set forth in this
Agreement are true and correct as of the date of the certificate.
(c) There have been no material adverse changes in GEI up to and
including the date of the certificate.
(d) All conditions required by this Agreement have been met,
satisfied, or performed by GEI.
PAGE
14
(e) 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 GEI 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.
(f) There is no action, suit, proceeding, inquiry, or investigation
at law or in equity by any public board or body Pending or threatened against
GEI, wherein an unfavorable decision, ruling, or finding would have an adverse
effect on the financial condition of GEI, the operation of GEI, or the
acquisition and reorganization contemplated herein, or any material agreement
or instrument by which GEI is bound or would in any way contest the existence
of GEI.
4.05 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial
conditions, business, or operations of GEI, 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
GEI.
4.06 Good Standings. RIC shall have received certificates of good
standing from the appropriate authorities, dated as of the date within five
days prior to the Closing Date, certifying that GEI is in good standing as a
corporation in the State of Nevada.
4.07 Other Items. RIC shall have received such further documents
certificates, or instruments relating to the transactions contemplated hereby
as RIC may reasonably request.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF GEI
The obligations of GEI under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
5.01. Shareholder Approval. GEI shall call and hold a meeting of its
shareholders, or obtain through a majority written consent of its
shareholders, whereby the shareholders of GEI authorize and approve this
Agreement and the transactions contemplated hereby.
5.02 RIC Shareholders. Holders of all of the issued and
outstanding RIC Shares shall agree to this Agreement and the exchange of
shares.
5.03 Accuracy of Representations. The representations and warranties
made by RIC 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 RIC shall have performed or complied with
all covenants and conditions required by this Agreement to be performed or
complied with by RIC prior to or at the Closing. GEI shall be furnished with
a certificate, signed by a duly authorized officer of RIC and dated the
Closing Date, to the foregoing effect.
5.04 Officer's Certificates. GEI shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
executive officer of RIC to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of RIC,
threatened, which might result in an action to enjoin or prevent the
15
consummation of the transactions contemplated by this Agreement. Furthermore,
based on certificates of good standing, representations of government
agencies, and RIC's own documents, the certificate shall represent that:
(a) This Agreement has been duly approved by RIC's board of directors
and shareholders and has been duly executed and delivered in the name and on
behalf of RIC by its duly authorized officers pursuant to, and in compliance
with, authority granted by the board of directors of RIC pursuant to a
unanimous consent of its board of directors and a majority vote of its
stockholders;
(b) The representations and warranties of RIC set forth in this
Agreement are true and correct as of the date of the certificate;
(c) Except as provided or permitted herein, there have been no
material adverse changes in RIC up to and including the date of the
certificate;
(d) 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 RIC 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
(e) Except as otherwise disclosed in Schedule 3.08, there is no action,
suit, proceeding, inquiry, or investigation at law or in equity by any public
board or body Pending or threatened against RIC, wherein an unfavorable
decision, ruling, or finding would have an adverse affect on the financial
condition of RIC, the operation of RIC, or the acquisition and reorganization
contemplated herein, or any material agreement or instrument by which RIC is
bound or would in any way contest the existence of RIC.
5.05 No Material Adverse Change. Except as provided or permitted
herein, prior to the Closing Date, there shall not have occurred any material
adverse change in the financial condition, business or operations of RIC, 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 RIC.
5.06 Good Standing. GEI shall have received a certificate of good
standing from the appropriate authority, dated as of a date within five days
prior to the Closing Date, certifying that the RIC is in good standing as a
corporation in the State of Wisconsin.
5.07 Other Items. GEI shall have received such further documents
certificates, or instruments relating to the transactions contemplated hereby
as GEI may reasonably request.
ARTICLE VI
SPECIAL COVENANTS TO BE SATISFIED PRIOR TO CLOSING
6.01 Activities of GEI and RIC.
(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 GEI and
RIC pursuant hereto or as permitted or contemplated by this Agreement, GEI and
RIC will each:
16
(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 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. All such tax returns shall be prepared in a manner
consistent with the preparation of prior years' tax returns except as required
by law or as agreed to by the parties hereto prior to the filing thereof; 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, GEI and RIC will not:
(i) Make any change in its articles of incorporation or bylaws;
(ii) Enter into or amend any 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 RIC securities without
the prior approval of GEI.
6.02 Access to Properties and Records. RIC will afford to the
officers and authorized representatives of GEI full access to the properties,
books, and records of RIC in order that GEI may have full opportunity to make
such reasonable investigation as it shall desire to make of the affairs of RIC
and will furnish GEI with such additional financial and operating GEI and
other information as to the business and properties of RIC as GEI shall from
time to time reasonably request.
6.03 Indemnification by RIC. RIC will indemnify and hold harmless
GEI and its directors and officers, and each person, if any, who controls GEI
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
17
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 RIC expressly for
use therein. The indemnity agreement contained in this Section 6.03 shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of GEI and shall survive the consummation of the
transactions contemplated by this Agreement for a period of two years.
6.04. Indemnification by GEI. GEI will indemnify and hold harmless
RIC, the RIC Stockholders, RIC's directors and officers, and each person, if
any, who controls RIC 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 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 GEI 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 RIC and shall survive the consummation of the
transactions contemplated by this Agreement for a period of two years.
6.05 The Acquisition of GEI Common Stock. GEI, RIC and the RIC
Stockholders agree and understand that the consummation of this Agreement
including the issuance of the GEI Common Stock to the shareholders of RIC in
exchange for the RIC Common Stock as contemplated hereby, constitutes the
offer and sale of securities under the Securities Act and applicable state
statutes. GEI, RIC and RIC Stockholders agree 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) RIC 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 GEI Common Stock, and that this
transaction involves certain risks.
(ii) RIC Stockholders have received and read the Agreement and
understand the risks related to the consummation of the transactions herein
contemplated.
PAGE
18
(iii) RIC Stockholders have such knowledge and experience in business
and financial matters that they are capable of evaluating each business.
(iv) RIC Stockholders have been provided with copies of all materials
and information requested by the RIC Stockholders or their representatives,
including any information requested to verify any information furnished (to
the extent such information is available or can be obtained without
unreasonable effort or expense), and the parties have been provided the
opportunity for direct communication regarding the transactions contemplated
hereby.
(v) All information which RIC Stockholders have provided to GEI or
their representatives concerning their suitability and intent to hold shares
in GEI following the transactions contemplated hereby is complete, accurate,
and correct.
(vi) RIC Stockholders have not offered or sold any securities of GEI
or interest in this Agreement and have no present intention of dividing the
GEI Common Stock to be received or the rights under this Agreement with others
or of reselling or otherwise disposing of any portion of such stock or rights,
either currently or after the passage of a fixed or determinable period of
time or on the occurrence or nonoccurrence of any predetermined event or
circumstance.
(vii) RIC Stockholders understand that the GEI 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 GEI
Common Stock may, under certain circumstances, be inconsistent with this
exemption and may make RIC Stockholders 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 GEI 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 in rule 144 promulgated under the Securities Act, and, after one
year after the date the GEI Common Stock or RIC Shares are 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.
(viii) RIC Stockholders acknowledge that the shares of GEI 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. GEI is not under any
obligation to register the GEI Common Stock under the Securities Act. If rule
144 is available after one year and prior to two years following the date the
19
shares are fully paid for, only routine sales of such GEI Common Stock in
limited amounts can be made in reliance upon rule 144 in accordance with the
terms and conditions of that rule. GEI is not under any obligation to make
rule 144 available, except as may be expressly agreed to by it in writing 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 RIC
Stockholders can sell, transfer, or otherwise dispose of such GEI Common Stock
without registration under the Securities Act. GEI's registrar and transfer
agent will maintain a stop transfer order against the registration or transfer
of the GEI Common Stock, and the certificates representing the GEI 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.
(ix) GEI may refuse to register further transfers or resales of the
GEI Common Stock in the absence of compliance with rule 144 unless the RIC
Stockholders furnish the GEI with a "no-action" or interpretive letter from
the SEC or an opinion of counsel reasonably acceptable to GEI stating that the
transfer is proper. Further, unless such letter or opinion states that the
shares of GEI Common Stock are free of any restrictions under the Securities
Act, GEI may refuse to transfer the securities to any transferee who does not
furnish in writing to GEI the same representations and agree to the same
conditions with respect to such GEI Common Stock as set forth herein. GEI may
also refuse to transfer the GEI Common Stock if any circumstances are present
reasonably indicating that the transferee's representations are not accurate.
(b) In connection with the transaction contemplated by this
Agreement, RIC, the RIC Stockholders, and GEI shall each file, with the
assistance of the other and their respective legal counsel, such notices,
applications, reports, or other instruments as may be deemed by them to be
necessary or appropriate in an effort to document reliance on such exemptions,
and the appropriate regulatory authority in the states where the RIC
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
such parties to be appropriate.
(c) In order to more fully document reliance on the exemptions as provi
ded herein, RIC, the RIC Stockholders, and GEI shall execute and deliver to
the other, at or prior to the Closing, such further letters of representation,
acknowledgment, suitability, or the like as GEI or RIC and its counsel may
reasonably request in connection with reliance on exemptions from registration
under such securities laws including but not limited to an investment letter.
(d) RIC, the RIC Stockholders, and GEI 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 GEI Liabilities. Immediately prior to the Closing Date, GEI
shall have no material assets and no liabilities, and all expenses related to
this Agreement or otherwise shall have been paid.
20
6.07 Securities Filings. GEI shall be responsible for the
preparation and filing of a form D with the Securities and Exchange Commission
and RIC shall be responsible for all filing in any state where its RIC
Shareholders shall reside and all future filings required as a result of the
transaction contemplated by this Agreement necessary to comply with any
federal, state or regulatory security laws.
6.09 New Board of Directors and Officers. Upon closing of the
transactions contemplated by this Agreement, the current board of directors
and officers of GEI shall resign and in their place nominees of RIC shall be
appointed.
6.10 Acquisition of Safe Environmental, Inc. Prior to closing, GEI
shall enter into agreements substantially similar to this Agreement, to
purchase all of the issued and outstanding stock of Safe Environment, Inc., an
Illinois corporation for 2,750,000 post reverse split shares of GEI common
stock, respectively.
ARTICLE VII
MISCELLANEOUS
7.01 Brokers. GEI, RIC and RIC Stockholders agree that there were no
finders or brokers involved in bringing the parties together or who were
instrumental in the negotiation, execution, or consummation of this
Agreement. Further, GEI and RIC 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 United States of
America and, with respect to matters of state law, with the laws of the state
of Nevada.
PAGE
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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 GEI, to: Xxxxx Xxxxxxxxx If to RIC, to: Xxxx Xxxxx
Gemstar Enterprises, Inc. Roli Ink Corporation
X.X. Xxx 0000 8400 Brookfield Avenue
Palm Desert, California 92261 Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
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.
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 GEI or
RIC 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.
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
22
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.
7.11 GEI's Materiality Threshold. It is understood by the parties
that GEI has no operations and only limited assets. Accordingly, the parties
to this Agreement hereby agree that the term "materiality" as used in this
Agreement relative to GEI, shall represent a dollar amount in excess of
$25,000.
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.
GEMSTAR ENTERPRISES, INC., ROLI INK CORPORATION,
a Nevada corporation a Wisconsin corporation
By:/S/ Xxxxx Xxxxxxxxx, President By: /S/ Xxxx Xxxxx, Pres.
A Duly Authorized Officer
STATE OF UTAH )
ss.
COUNTY OF SALT LAKE)
On this 30th day of June, 1997, personally appeared before me Xxxxx
Xxxxxxxxx, whose identity is personally known to me and who by me duly sworn,
did say that he is the President of Gemstar Enterprises, Inc. and that said
document was signed by him of behalf of said corporation by authority of its
bylaws, and said Xxxxx Xxxxxxxxx acknowledged to me that said corporation
executed the same.
/S/ Xxxxxx X. Xxxxxxx, Notary Public [Seal]
000 Xxxxx 000 Xxxx Xxx. X-0
XXX, XX 00000
My Commission Expires August 10, 0000
Xxxxx xx Xxxx
XXXXX XX XXXXXXXX)
ss.
COUNTY OF XXXX )
On this 3rd day of July, 1997 personally appeared before me Xxxx Xxxxx,
whose identity is personally known to me and who by me duly sworn, did say
that he is the president of Roli Ink Corporation and that said document was
signed by him of behalf of said corporation by authority of its bylaws, and
said Xxxx Xxxxx acknowledged to me that said corporation executed the same.
/S/ Xxxxx Xxxxx
"Official Seal"
Notary Public, State of Illinois
My Commission Expires 6-2-99
PAGE
23
Exhibit A-1
Roli Ink Corporation
List of Shareholders
Number
Of GEI
Number Shares
Of SAFE To be
Shares Received
Name of Shareholder Owned In Exchange Signature
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