Exhibit 2.1
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STOCK EXCHANGE AGREEMENT
DATED AS OF NOVEMBER 4, 2002
by and between
American Pulp Exchange, Inc.
and
General Media International, Inc.
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STOCK EXCHANGE AGREEMENT
This STOCK EXCHANGE AGREEMENT dated as of November 4, 2002 (this
"Agreement") has been entered into by and between American Pulp Exchange, Inc.,
a Florida corporation ("Acquirer") and General Media International, Inc., a New
York corporation ("GMI").
W I T N E S S E T H :
A. Acquirer is engaged in a review of favorable acquisition
opportunities. Pursuant to such review, Acquirer has expressed an interest in
acquiring a controlling interest in General Media, Inc., a Delaware corporation
("GM"). GM is engaged, directly or through its subsidiaries, in (among other
activities) the (a) publication and sale of Penthouse(R) Magazine and other
men's magazines, (b) the sale of adult-oriented on-line and other entertainment
products and services, and (c) the licensing of the Penthouse(R) trademark to
publishers in foreign countries and for use in various consumer products and
services.
B. GMI is the holder of 99.5% of the outstanding shares of common
stock, par value $.01 per share, of GM (the "GM Common Stock"), amounting to
475,000 of such outstanding shares (all such shares of GM Common Stock held by
GMI, the "GM Shares"). GMI.
C. Acquirer and GMI wish to enter into this Agreement to provide
for the purchase and sale of the GM Shares in exchange for newly issued
securities of Acquirer, assumption of certain liabilities and certain other
consideration.
D. GM is the obligor under certain Series C 15% Senior Secured
Notes due 2004 (the "Series C Notes") issued under that certain Indenture dated
December 21, 1993 between GM and IBJ Xxxxxxxx Bank & Trust Company, as
supplemented (the "Indenture"). The Series C Notes are secured by a security
interest in substantially all of the assets of GM in favor of the holders of the
Series C Notes, and GM is subject to a number of restrictive operating covenants
under the Indenture the effect of which, in the aggregate, is to confer upon
non-affiliates of GMI the ability to influence certain business decisions of GM.
E. GM is the issuer of 9,905 shares of Series A Convertible
Redeemable Preferred Stock (the "GM Preferred Stock"). The GM Preferred Stock
carries a liquidation preference of $10 million and is convertible at the option
of the holders thereof, commencing in 2003, into 10% of the GM Common Stock on a
fully diluted basis during the third year, 12.5% of the GM Common Stock on a
fully diluted basis during the fourth year, and 15% of the GM Common Stock on a
fully diluted basis during the fifth year. The GM Preferred Stock is mandatorily
redeemable by GM at its liquidation preference, including "paid in kind"
dividends, in 2006. The effect of such provisions, in the aggregate, is to
confer upon non-affiliates of GMI the ability to influence certain business
decisions of GM.
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F. In connection with the closing of the transaction contemplated
by this Agreement, the Parties contemplate that Acquirer will enter into the
Series B Purchase Agreement (as defined herein), by which it will issue and sell
shares of its Series B Preferred Stock to certain investor(s). The effect of the
rights, preferences and privileges of the Series B Preferred Stock, in the
aggregate, is to confer upon non-affiliates of GMI the ability to influence
certain business decisions of GM.
G. Acquirer's acquisition of the GM Shares is to be consummated
subject to the operation and management control provisions described in recitals
D, E and F above.
H. The Parties hereto intend that the purchase and sale of the GM
Shares be treated as a transfer described in Section 351(a) of the Internal
Revenue Code of 1986, as amended (the "Code").
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
ARTICLE I
EXCHANGE OF STOCK
Section 1.1 Exchange of Stock. Subject to the terms and conditions
herein stated, on the Closing Date Acquirer shall purchase and acquire from GMI,
and GMI shall sell and assign to Acquirer, the GM Shares for the consideration
set forth in Section 1.2 (the "Exchange").
Section 1.2 Exchange Consideration. The Parties acknowledge that GMI
intends to carry out the transactions contemplated hereunder in consideration
of, and in reliance upon, all rights and benefits to be provided by Acquirer
pursuant to the transactions contemplated under this Agreement, including (a)
the issuance by Acquirer to GMI of 42,500,000 shares of Acquirer Common Stock,
(b) the issuance by Acquirer to GMI of 5,000 shares of Series A Preferred Stock,
(c) the assumption by Acquirer of the Assumed Liabilities, (d) the assignment by
VP to GMI of its rights under the Stock Purchase Agreement, (e) Acquirer's
obtaining of MBP's legal obligations to invest in Acquirer pursuant to the
Series B Purchase Agreement, (f) Acquirer's obtaining of VP's legal obligations
pursuant to the VP Option Agreement and the PH Capital Option Agreement,
respectively, and (g) Acquirer's entering into the Shareholders Agreement (such
rights and benefits, the "Exchange Consideration").
Section 1.3 Closing. The closing of the transaction referred to in
Section 1.1 hereof (the "Closing") shall take place at the Los Angeles offices
of Xxxxxxxxx, Stang, Ziehl, Young & Xxxxx Professional Corporation, at 10:00
a.m. Pacific time on November 8, 2002, or at such other time and place as the
Parties may agree upon. Such time and date are herein referred to as the
"Closing Date."
Section 1.4 Closing Deliveries.
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(a) At the Closing, GMI shall deliver to Acquirer the following
(the "GMI Closing Deliveries"):
(i) certificate(s) representing the GM Shares, duly
endorsed in blank or accompanied by stock powers duly executed in blank by
GMI as of the Closing Date and bearing any required legend;
(ii) the articles of incorporation of GM, certified by the
Secretary of State of Delaware;
(iii) the bylaws of GM;
(iv) a corporate good standing certificate for GM by the
Secretary of State of Delaware;
(v) the articles of incorporation of GMI, certified by the
Secretary of State of New York;
(vi) the bylaws of GMI, certified by the Secretary of GMI as
of the Closing Date;
(vii) a corporate good standing certificate for GMI by the
Secretary of State of New York;
(viii) resolutions of the board of directors of GMI approving
this Agreement and the transactions contemplated hereby, certified by the
Secretary of GMI as of the Closing Date;
(ix) resolutions of the shareholders of GMI approving this
Agreement and the transactions contemplated hereby, certified by the
Secretary of GM as of the Closing Date;
(x) the Shareholders Agreement, dated as of the Closing
Date, executed by GMI and PH Capital;
(xi) an incumbency certificate, dated as of the Closing
Date, in form reasonably satisfactory to Acquirer, executed by the
Secretary of GMI; and
(xii) a closing certificate, dated as of the Closing Date, in
form reasonably satisfactory to Acquirer, executed by an officer of GMI.
(b) At the Closing, Acquirer shall deliver to GMI the following
(the "Acquirer Closing Deliveries"):
(i) certificate(s) representing 42,500,000 shares of
Acquirer Common Stock, duly executed by the President and Secretary of
Acquirer as of the Closing Date and bearing any required legend;
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(ii) certificates(s) representing 5,000 shares of Series A
Preferred Stock, duly executed by the President and Secretary of Acquirer
as of the Closing Date and bearing any required legend;
(iii) the articles of incorporation of Acquirer, including
any amendment thereto required to increase the authorized number of shares
of Acquirer Common Stock or otherwise to consummate the transactions
contemplated by this Agreement;
(iv) the bylaws of Acquirer, certified by the Secretary of
Acquirer as of the Closing Date;
(v) resolutions of the board of directors of Acquirer
approving this Agreement and the transactions contemplated hereby,
certified by the Secretary of Acquirer as of the Closing Date;
(vi) resolutions of the shareholders of Acquirer approving
this Agreement and the transactions contemplated hereby, certified by the
Secretary of Acquirer as of the Closing Date;
(vii) the PH Capital Option Agreement, dated as of the
Closing Date, executed by PH Capital;
(viii) the VP Option Agreement, dated as of the Closing Date,
executed by VP;
(ix) the Assignment Agreement, dated as of the Closing Date,
executed by VP;
(x) the Assumption Agreement, dated as of the Closing Date,
executed by Acquirer;
(xi) the Series B Purchase Agreement, dated as of the
Closing Date, executed by MBP and Acquirer;
(xii) the Shareholders Agreement, dated as of the Closing
Date, executed by Acquirer and VP;
(xiii) an incumbency certificate, dated as of the Closing
Date, in form reasonably satisfactory to GMI, executed by the Secretary of
Acquirer; and
(xiv) a closing certificate, dated as of the Closing Date, in
form reasonably satisfactory to GMI, executed by an officer of Acquirer.
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ARTICLE II
REPRESENTATIONS OF GMI
Except as otherwise set forth in the Disclosure Schedule attached
hereto as Exhibit G or as otherwise disclosed in any report or statement filed
by GM with the SEC, GMI hereby represents and warrants as follows:
Section 2.1 Ownership of GM Shares. GMI is the lawful owner of the
475,000 shares of the GM Common Stock comprising the GM Shares. The GM Shares
are free and clear of all Encumbrances, other than the Encumbrance, if any, that
may arise by the execution by GMI of this Agreement. The GM Shares constitute
99.5% of the issued and outstanding shares of GM Common Stock. The delivery to
Acquirer of the GM Shares pursuant to the provisions of this Agreement will
transfer to Acquirer valid title thereto, free and clear of any and all
Encumbrances.
Section 2.3 Authorization and Validity of Agreement. GMI has full
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by GMI and, assuming
the due execution of this Agreement by Acquirer, is a valid and binding
obligation of GMI, enforceable against GMI in accordance with its terms, except
to the extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization and similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles.
Section 2.4 Consents and Approvals; No Violations. The execution and
delivery of this Agreement by GMI and the consummation by GMI of the exchange of
the GM Shares as contemplated herein and the other transactions contemplated
hereby (a) will not violate the provisions of the articles of incorporation or
bylaws of GMI or GM, (b) will not violate any statute, rule, regulation, order
or decree of any Governmental Authority by which GMI or GM is or any of their
respective properties or assets are bound, (c) will not require GMI or GM to
make any filing with, or obtain any permit, consent or approval from, or give
any notice to, any Governmental Authority on or prior to the Closing Date, and
(d) will not result in a violation or breach by GMI or GM of, conflict with,
constitute (with or without due notice or lapse of time or both) a default by
GMI or GM (or give rise to any right of termination, cancellation, payment or
acceleration against GMI or GM) under, or result in the creation of any
Encumbrance upon any of the properties or assets of GMI or GM under, the terms,
conditions or provisions of any Material Instrument of GMI or GM.
Section 2.5 Existence and Good Standing. GMI and GM each is a
corporation duly organized, validly existing and in good standing under the laws
of its respective state of incorporation and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted. GMI and GM each is duly qualified or licensed
as a foreign corporation to conduct its business, and is in good standing in
each jurisdiction in which the character or location of the property owned,
leased or operated by
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it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to be so duly qualified or licensed would
not have a Material Adverse Effect.
Section 2.6 Capital Stock. GM has an authorized capitalization
consisting of 1,670,000 shares of common stock, par value $.01 per share, of
which 477,401 shares are issued and outstanding, and 330,000 shares of preferred
stock, of which 30,000 shares are Class A Preferred Stock, par value $.01 per
share and 300,000 are undesignated Preferred Stock, par value $.01 per share. An
aggregate of 9,905 shares of Series A Convertible Redeemable Preferred Stock
have been issued and are outstanding. All such outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. There are no
outstanding subscriptions, options, warrants, rights, calls, commitments,
conversion rights, rights of exchange, plans or other agreements providing for
the purchase, issuance or sale of any shares of the capital stock of GM, other
than pursuant to this Agreement.
Section 2.7 Financial Statements. The consolidated balance sheet of
GM as at June 30, 2002, the related statements of income and cash flows for the
quarter then ended, have been filed with the SEC (the "Financial Statements").
The Financial Statements, including the footnotes thereto, have been prepared in
accordance with generally accepted accounting principles and fairly present in
all material respects the financial position of GM and the results of its
operations and cash flows at such dates and for such periods.
Section 2.8 Litigation. There are no (i) actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or to the
Knowledge of GMI, threatened against GM except for such actions, suits or
proceedings that, if determined adversely to GM would, individually or in the
aggregate, not be likely to have a Material Adverse Effect on GM or (ii)
judgments, injunctions, writs, rulings or orders by any Governmental Authority
against GM that, individually or in the aggregate, are likely to have a Material
Adverse Effect on GM.
Section 2.9 Taxes. GMI has filed all Federal, state and foreign
income tax returns and all other material tax returns that are required to be
filed by it and GM and has paid or cause to be paid all taxes due pursuant to
such returns or pursuant to any assessment received by it in writing and all
other related penalties and charges other than those being contested in good
faith and by appropriate proceedings. The charges, accruals and reserves on the
other governmental charges are, in the opinion of GMI, adequate. GMI has not
given or been requested to give a waiver of the statute of limitations relating
to the payment of Federal or other taxes.
Section 2.10 Investor Status. GMI is an "accredited investor" within
the meaning of Rule 501 of Regulation D under the Securities Act. The Acquirer
Common Stock included within the Exchange Consideration have not been offered to
GMI by means of any general solicitation or general advertising.
Section 2.11 Restricted Securities. GMI understands that the shares
of Acquirer Common Stock included within the Exchange Consideration are
"restricted securities" under the Securities Act inasmuch as they are being
acquired in a transaction not involving a public offering and that under the
Securities Act and applicable regulations thereunder such securities
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may be resold without registration under the Securities Act only in certain
limited circumstances. In this connection, GMI represents that it is familiar
with Rule 144 of the SEC, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. GMI understands that
Acquirer is under no obligation to register any of the securities sold
hereunder.
Section 2.12 Broker's or Finder's Fees. No agent, broker, firm or
other person acting on behalf of GMI or GM is, or will be, entitled to any
commission or broker's or finder's fees from any of the Parties hereto, or from
any Person Controlling, Controlled by or under common Control with any of the
Parties hereto, in connection with any of the transactions contemplated herein.
ARTICLE III
REPRESENTATIONS OF ACQUIRER
Acquirer represents and warrants as follows:
Section 3.1 Issuance of Acquirer Common Stock. Upon the execution
and delivery of this Agreement, and the issuance of the shares of Acquirer
Common Stock and the Series A Preferred Stock included within the Exchange
Consideration, all the shares of Acquirer Common Stock and the Series A
Preferred Stock included within the Exchange Consideration shall be duly
authorized, validly issued, fully paid and nonassessable.
Section 3.2 Authorization and Validity of Agreement. Acquirer has
full corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Acquirer and, assuming the due execution of this Agreement by GMI, is a valid
and binding obligation of Acquirer, enforceable against Acquirer in accordance
with its terms, except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization and similar laws affecting the
enforcement of creditors' rights generally and to general equitable principles.
Section 3.3 Consents and Approvals; No Violations. The execution and
delivery of this Agreement by Acquirer and the consummation by Acquirer of the
transactions contemplated hereby (a) will not violate the provisions of the
certificate of incorporation or bylaws of Acquirer, (b) will not violate any
statute, rule, regulation, order or decree of any Governmental Authority by
which Acquirer is or any of its properties or assets are bound, (c) will not
require Acquirer to make any filing with, or obtain any permit, consent or
approval from, or give any notice to, any Governmental Authority on or prior to
the Closing Date, and (d) will not result in a violation or breach by Acquirer
of, conflict with, constitute (with or without due notice or lapse of time or
both) a default by Acquirer (or give rise to any right of termination,
cancellation, payment or acceleration against Acquirer) under, or result in the
creation of any Encumbrance upon any of the properties or assets of the Acquirer
under, any of the terms, conditions or provisions of any Material Instrument of
Acquirer.
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Section 3.4 Existence and Good Standing. Acquirer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. Acquirer is duly qualified or licensed as a foreign corporation to
conduct its business, and is in good standing in each jurisdiction in which the
character or location of the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification necessary,
except where the failure to be so duly qualified or licensed would not have a
Material Adverse Effect.
Section 3.5 Capital Stock. Acquirer has an authorized capitalization
consisting of 250,000,000 shares of common stock, par value $.0025 per share
(referred to herein as the Acquirer Common Stock), of which 7,500,000 shares are
issued and outstanding, and 20,000,000 shares of preferred stock, par value
$.0025 per share (referred to herein as the Acquirer Preferred Stock), of which
no shares are outstanding. An aggregate of 4,120,000 shares of the Acquirer
Common Stock (the "VP Shares") are held by VP. All such outstanding shares have
been duly authorized and validly issued in accordance with applicable laws,
including, without limitation, the anti-fraud provisions of applicable federal
and state securities laws, and are fully paid and nonassessable. There are no
outstanding subscriptions, options, warrants, rights, calls, commitments,
conversion rights, rights of exchange, plans or other agreements providing for
the purchase, issuance or sale of any shares of the capital stock of Acquirer,
other than the Shareholders Agreement and Consultants Stock Plan, under which no
shares have been issued.
Section 3.6 Financial Statements. The consolidated balance sheet of
Acquirer as at July 31, 2002 and the related statements of income and cash flows
for the quarter then ended have been filed with the SEC (the "Acquirer Financial
Statements"). The Acquirer Financial Statements, including the footnotes
thereto, and all financial statements contained in any Acquirer SEC Reports
(defined in Section 3.7 below) have been prepared in accordance with generally
accepted accounting principles and fairly and accurately present in all material
respects the financial position of Acquirer and the results of its operations
and cash flows at such dates and for such periods. Since July 31, 2002, there
has been no material adverse change in the financial condition, operations, or
business of Acquirer.
Section 3.7 Securities Filings. Since the initial filing of the
registration statement on Form SB-2 by Acquirer, and prior to the execution and
delivery of this Agreement, Acquirer has filed all forms, reports, statements
and other documents required to be filed with the SEC and all state securities
regulatory agencies, if any, including, without limitation, (A) all Annual
Reports on Form 10-KSB, (B) all Quarterly Reports on Form 10-QSB, (C) all proxy
statements relating to meetings of stockholders (whether annual or special), (D)
all Reports on Form 8-K, (E) the Form 10 described above, and (E) all other
reports or registration statements (collectively, the "Acquirer SEC Reports").
The Acquirer SEC Reports (i) were prepared in all material respects in
accordance with the requirements of the Securities Act and the Exchange Act, and
the rules and regulations of the SEC thereunder applicable to such Acquirer SEC
Reports and (ii) did not at the time they were filed and as of the date hereof,
and, with respect to registration statements as of their effective dates,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading.
Section 3.8 Indebtedness. Acquirer has no outstanding liabilities or
Indebtedness of any kind (including contingent obligations, tax assessments and
unusual forward or long-term commitments), other than miscellaneous payables and
accrued expenses not to exceed $10,000.
Section 3.9 Litigation. There are no (i) actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or to the
Knowledge of Acquirer, threatened against Acquirer, nor, to the Knowledge of
Acquirer, is there any basis for any of the foregoing or (ii) judgments,
injunctions, writs, rulings or orders by any Governmental Authority against
Acquirer.
Section 3.10 Taxes. Acquirer has filed all Tax Returns that are
required to be filed by it. All such Tax Returns are correct and complete in all
respects. Acquirer has paid all taxes due pursuant to such returns or otherwise
or pursuant to any assessment received by it in writing and all other related
penalties and charges on a timely basis other than those being contested in good
faith and by appropriate proceedings. No claim has ever been made by a
governmental authority in a jurisdiction where Acquirer does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction. Acquirer
has not requested or obtained any extension of time within which to file any Tax
Return, which Tax Return has not since been filed. There are no Encumbrances on
any of the assets of Acquirer that arose in connection with any failure (or
alleged failure) to pay any tax. Acquirer has not given or been requested to
give a waiver of the statute of limitations relating to the payment of Federal
or other taxes.
Section 3.11 Investment Experience. The GM Shares have not been
offered to Acquirer by means of any general solicitation or general advertising.
Acquirer understands that the acquisition of the GM Shares involves substantial
risk. Acquirer has, or is relying on the professional advisors who have,
experience in investing in securities of companies and such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of this investment in the GM Shares and protecting its own
interests in connection with this investment. Acquirer acknowledges that it can
bear the economic risk of its investment in the GM Shares.
Section 3.12 Restricted Securities. Acquirer understands that the GM
Shares are characterized as "restricted securities" under the Securities Act
inasmuch as they are being acquired in a transaction not involving a public
offering and that under the Securities Act and applicable regulations thereunder
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. In this connection, Acquirer represents that
it is familiar with Rule 144 of the SEC, as presently in effect, and understands
the resale limitations imposed thereby and by the Securities Act. Acquirer
understands that GM is under no obligation to register any of the securities
sold hereunder. Acquirer understands that no public market now exists for any of
the GM Shares and that it is uncertain whether a public market will ever exist
for the GM Shares.
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Section 3.13 Broker's or Finder's Fees. No agent, broker, firm or
other person acting on behalf of Acquirer is, or will be, entitled to any
commission or broker's or finder's fees from any of the Parties hereto, or from
any person Controlling, Controlled by or under common Control with any of the
Parties hereto, in connection with any of the transactions contemplated herein.
Section 3.14 Accuracy of Information. None of the representations
and warranties of Acquirer contained herein or in the documents furnished by it
pursuant hereto contain any material misstatement of fact, or omit to state any
material fact necessary to make the statements herein or therein in light of the
circumstances in which they were made not misleading.
ARTICLE IV
CERTAIN AGREEMENTS
Section 4.1 Reasonable Best Efforts. Each of the Parties hereto
agrees to use its commercially reasonable best efforts to take, or cause to be
taken, all action to do or cause to be done, and to assist and cooperate with
the other Party hereto in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement, including the obtaining of any
required waiver, consent or approval from, the giving of any required notice to,
and the making of any required registration or filing with, any Governmental
Authority and the obtaining of any required waiver, consent, or approval from
and the giving of any required notice or disclosure to stockholders and other
third Parties; provided, however, that no Party shall be required to expend any
funds to defend any lawsuit seeking to have any temporary restraining order
entered by any court or administrative authority vacated or reversed or any
other legal proceeding, whether judicial or administrative, challenging this
Agreement or the consummation of the transactions contemplated hereby.
Section 4.3 Tax Matters. Each Party hereto shall take all reasonable
actions necessary to cause the transfer of the GM Shares and any other property
transferred to Acquirer to qualify as a tax-free transfer of property under the
provisions of Section 351(a) of the Code to the extent permitted by law. Each
Party agrees that it will not take any action, either before or after the
Closing Date, which would cause the transfer of such property to Acquirer
pursuant to this Agreement to fail to qualify as transfer described in Section
351(a) of the Code. The Parties hereto agree that they will report in their
respective federal income Tax Returns for the taxable year including the Closing
Date that the transfers of such property did so qualify under Section 351(a) of
the Code, and will properly file with such Tax Returns all information required
by Treasury Regulations Section 1.351-3. No Party hereto, unless required by
law, will take any Tax reporting position inconsistent with the characterization
of the transactions contemplated by this Agreement as transfer described in
Section 351(a) of the Code.
Section 4.4 Confidentiality and Press Release. Unless (i) otherwise
expressly provided in this Agreement, (ii) required by applicable law, (iii)
necessary to secure any required consents as to which the other party has been
advised or (iv) consented to in writing by
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Purchaser and the Company, any information or documents furnished in connection
herewith shall be kept strictly confidential by Acquirer, GMI, and their
respective officers, directors, employees and agents. Prior to any disclosure
pursuant to the preceding sentence, the party intending to make such disclosure
shall consult with the other party regarding the nature and extent of the
disclosure. Nothing contained herein shall preclude disclosures to the extent
necessary to comply with accounting, SEC and other disclosure obligations
imposed by applicable law. To the extent required by such disclosure
obligations, Acquirer, after consultation with GMI, may file with the SEC a
Report on Form 8-K pursuant to the Securities Exchange Act with respect to the
transactions contemplated hereby, which report may include, among other things,
all such financial statements and pro forma financial information as may be
required by such report. In connection with any filing with the SEC of a
registration statement or amendment thereto under the Securities Act, Acquirer,
after consultation with GMI, may include a prospectus containing any information
required to be included therein with respect to the Exchange, including, but not
limited to, any financial statements or pro forma financial information required
in connection therewith, and thereafter distribute said prospectus. Acquirer and
GMI shall cooperate with the other and provide such information and documents as
may be required in connection with any such filings. In the event the Exchange
is not consummated, each party shall return to the other any documents furnished
by the other and all copies thereof any of them may have made and will hold in
absolute confidence any information obtained from the other party except to the
extent (i) such party is required to disclose such information by Law or such
disclosure is necessary or desirable in connection with the pursuit or defense
of a claim, (ii) such information was known by such party prior to such
disclosure or was thereafter developed or obtained by such party independent of
such disclosure or (iii) such information becomes generally available to the
public other than by breach of this Section 4.4. Prior to any disclosure of
information pursuant to the exception in clause (i) of the preceding sentence,
the party intending to disclose the same shall so notify the party which
provided the name in order that such party may seek a protective order or other
appropriate remedy should it choose to do so.
ARTICLE V
CONDITIONS TO ACQUIRER'S OBLIGATIONS
Acquirer's obligation to consummate the Exchange at the Closing is
conditioned upon the satisfaction or waiver, on or before the Closing Date, of
the following conditions:
Section 5.1 Truth of Representations and Warranties. The
representations and warranties of GMI contained in this Agreement or in any
Schedule delivered pursuant hereto shall be true and correct in all material
respects on and as of the Closing Date with the same effect as though such
representations and warranties have been made on and as of such date (except to
the extent that any such representation and warranty is stated in this Agreement
to be made as of a specific date, in which case such representation and warranty
shall be true and correct as of such specified date).
Section 5.2 Closing Deliveries. Each and all of the GMI Closing
Deliveries shall have been made in accordance with Section 1.4(a) hereof.
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Section 5.3 Performance of Covenants. Each and all of the covenants
of GMI to be performed at or prior to the Closing Date pursuant to the terms
hereof shall have been duly performed in all material respects.
Section 5.4 No Injunction. No Government Authority shall have issued
an order which shall then be in effect restraining or prohibiting the completion
of the transactions contemplated hereby.
Section 5.5 No Litigation. There shall not be any action, suit or
proceeding pending or threatened that seeks to (i) make the consummation of the
transactions contemplated hereby illegal or otherwise restrict or prohibit
consummation thereof or (ii) impose any material limitation on the ability of
Acquirer, GMI or GM to conduct their respective business or to own or exercise
control of any of their respective assets, properties or stock and which (in the
reasonable, good faith determination of Acquirer) has a significant likelihood
of having a Material Adverse Effect on Acquirer.
Section 5.6 Warrant Agreement. The Warrant Agreement shall have been
fully executed and delivered by Acquirer and VP.
Section 5.7 Assignment Agreement. The Assignment Agreement shall
have been fully executed and delivered by VP and GMI.
ARTICLE VI
CONDITIONS TO GMI'S OBLIGATIONS
GMI's obligation to consummate the Exchange at the Closing is
conditioned upon the satisfaction or waiver, on or before the Closing Date, of
the following conditions:
Section 6.1 Truth of Representations and Warranties. The
representations and warranties of Acquirer contained in this Agreement shall be
true and correct in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made on and
as of such date.
Section 6.2 Closing Deliveries. Each and all of the Acquirer Closing
Deliveries shall have been made in accordance with Section 1.4(b) hereof.
Section 6.3 Performance of Covenants. Each and all of the covenants
of Acquirer to be performed at or prior to the Closing Date pursuant to the
terms hereof shall have been duly performed in all material respects.
Section 6.4 No Injunction. There shall not be any action, suit or
proceeding pending or threatened that seeks to (i) make the consummation of the
transactions contemplated hereby illegal or otherwise restrict or prohibit
consummation thereof or (ii) impose any material limitation on the ability of
(a) Acquirer, GMI or GM to conduct their respective businesses or (b)
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Acquirer, GMI or GM to own or exercise control of their assets, properties or
stock and which (in the reasonable, good faith determination of GMI) has a
significant likelihood of having a Material Adverse Effect on Acquirer, GMI, or
GM.
Section 6.5 Due Diligence. The board of directors of GMI shall be
satisfied, in its sole but reasonable discretion, with the condition (business,
financial, legal and otherwise), of Acquirer.
Section 6.6 Proxies. Before the Closing, the holder(s) of not less
than 3,845,000 shares of Acquirer Common Stock shall have executed and delivered
to GMI a proxy or proxies, in form reasonably satisfactory to GMI, appointing
GMI as proxy with respect to such shares (which proxy or proxies shall terminate
upon the Closing).
Section 6.7 No Encumbrances. There shall be no Encumbrances on any
assets of Acquirer or the Acquirer Common Stock (including, without limitation,
any Encumbrance on after-acquired property of Acquirer).
Section 6.8 Regulatory Filings. GMI shall have approved, in its
reasonable discretion and prior to filing, all filings on behalf of Acquirer
with any Governmental Authority (including, without limitation, the SEC, NASDAQ,
the NASD, or any state securities regulatory agency).
Section 6.9 Tax-Free Transaction. GMI shall be satisfied, in its
sole discretion, that the Exchange shall qualify for non-recognition of gain
pursuant to Section 351(a) of the Code so that the transfer of the GM Shares for
issuance of the Acquirer Common Stock shall not result in any tax liability to
GMI.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 7.1 Survival of Representations. The representations and
warranties set forth in this Agreement shall survive for three years after the
Closing Date.
Section 7.2 Indemnities.
(a) GMI hereby agrees to indemnify and hold harmless Acquirer, VP,
PH Capital, and their respective officers, directors, attorneys, accountants and
consultants from and against any and all Damages actually suffered or paid by
any of such Persons as a result of the breach of any representation or warranty
made by GMI in this Agreement. To the extent that GMI's undertakings set forth
in this Section 7.2(a) may be unenforceable, GMI shall contribute the maximum
amount that they are permitted to contribute under applicable law to the payment
and satisfaction of all Damages incurred by any Person entitled to
indemnification hereunder.
(b) Acquirer hereby agrees to indemnify and hold harmless GMI, VP,
PH Capital, and their respective officers, directors, attorneys, accountants and
consultants against Damages actually suffered or paid by any of such Persons as
a result of the breach of any
14
representation or warranty made by Acquirer in this Agreement. To the extent
that Acquirer's undertakings set forth in this Section 7.2(b) may be
unenforceable, Acquirer and GMI shall contribute the maximum amount that they
are permitted to contribute under applicable law to the payment and satisfaction
of all Damages incurred by any Person entitled to indemnification hereunder.
(c) Any Person seeking indemnification under this Article VII (an
"Indemnified Party") shall give each Party from whom indemnification is being
sought (each, an "Indemnifying Party") notice of any matter for which such
Indemnified Party is seeking indemnification, stating the amount of the Damages,
if known, and method of computation thereof, and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification
is claimed or arises. The obligations of an Indemnifying Party under this
Article VII with respect to Damages arising from any claims of any third party
which are subject to the indemnification provided for in this Article VII
(collectively, "Third Party Claims") shall be governed by and contingent upon
the following additional terms and conditions: if an Indemnified Party shall
receive, after the Closing Date, initial notice of any Third Party Claim, the
Indemnified Party shall give the Indemnifying Party notice of such Third Party
Claim within such time frame as is necessary to allow for a timely response and
in any event within 30 days of the receipt by the Indemnified Party of such
notice; provided, however, that the failure to provide such timely notice shall
not release the Indemnifying Party from any of its obligations under this
Article VII except to the extent the Indemnifying Party is materially prejudiced
by such failure. The Indemnifying Party shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within 30 days of the receipt of such notice from the Indemnified Party;
provided, however, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the reasonable judgment
of the Indemnified Party (upon advice of counsel) for the same counsel to
represent both the Indemnified Party and the Indemnifying Party, then the
Indemnified Party shall be entitled to retain its own counsel, at the expense of
the Indemnifying Party, provided that the Indemnified Party and such counsel
shall contest such Third Party Claims in good faith. In the event the
Indemnifying Party exercises the right to undertake any such defense against any
such Third Party Claim as provided above, the Indemnified Party shall cooperate
with the Indemnifying Party in such defense and make available to the
Indemnifying Party, at the Indemnifying Party's expense, all witnesses,
pertinent records, materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating thereto as is
reasonably required by the Indemnifying Party. Similarly, in the event the
Indemnified Party is, directly or indirectly, conducting the defense against any
such Third Party Claim, the Indemnifying Party shall cooperate with the
Indemnified Party in such defense and make available to the Indemnified Party,
at the Indemnifying Party's expense, all such witnesses, records, materials and
information in the Indemnifying Party's possession or under the Indemnifying
Party's control relating thereto as is reasonably required by the Indemnified
Party. The Indemnifying Party shall not, without the written consent of the
Indemnified Party, (i) settle or compromise any Third Party Claim or consent to
the entry of any judgment which does not include as an unconditional term
thereof the delivery by the claimant or plaintiff to the Indemnified Party of a
written release from all liability in respect of such Third Party Claim or (ii)
settle or compromise any Third Party Claim in any
15
manner that may adversely affect the Indemnified Party. No Third Party Claim
which is being defended in good faith by the Indemnifying Party or which is
being defended by the Indemnified Party as provided above in this Section 7.2(c)
shall be settled by the Indemnified Party without the written consent of the
Indemnifying Party.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Expenses. Except as otherwise provided in this
Agreement, each Party to this Agreement will bear its respective fees and
expenses incurred in connection with the preparation, negotiation, execution and
performance of this Agreement and the transactions contemplated herein. If this
Agreement is terminated, the obligation of each Party to pay its own fees and
expenses will be subject to any rights of such Party arising from a breach of
this Agreement by another Party.
Section 8.2 Waiver; Remedies Cumulative. The rights and remedies of
the Parties to this Agreement are cumulative and not alternative. Neither any
failure nor any delay by any Party in exercising any right, power or privilege
under this Agreement or any of the documents referred to in this Agreement will
operate as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement or any of the documents
referred to in this Agreement can be discharged by one Party, in whole or in
part, by a waiver or renunciation of the claim or right unless in writing signed
by the other Party; (b) no waiver that may be given by a Party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one Party will be deemed to be a waiver of any obligation
of that Party or of the right of the Party giving such notice or demand to take
further action without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.
Section 8.3 Entire Agreement and Modification. This Agreement
supersedes all prior agreements, whether written or oral, between the Parties
with respect to its subject matter and constitutes (along with the Exhibits and
other documents delivered pursuant to this Agreement) a complete and exclusive
statement of the terms of the agreement between the Parties with respect to its
subject matter. This Agreement may not be amended, supplemented, or otherwise
modified except by a written agreement executed by the Party to be charged with
the amendment.
Section 8.4 Assignments, Successors and No Third-Party Rights. No
Party may assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of the other Parties. Subject to the
preceding sentence, this Agreement will apply to, be binding in all respects
upon and inure to the benefit of the successors and permitted assigns of the
Parties. Except with respect to Article VII, nothing expressed or referred to in
this Agreement will be construed to give any Person other than the Parties to
this Agreement any legal or equitable right, remedy or claim under or with
respect to this Agreement or any
16
provision of this Agreement, except such rights as shall inure to a successor or
permitted assignee pursuant to this Section.
Section 8.5 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
Section 8.6 Construction. The headings of Articles and Sections in
this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Articles" and "Sections"
refer to the corresponding Articles and Sections of this Agreement. All
references to "include" or "including" mean "including without limitation." All
dollar amounts refer to US currency.
Section 8.7 Time of Essence. With regard to all dates and time
periods set forth or referred to in this Agreement, time is of the essence.
Section 8.8 Notices. All notices, consents, waivers and other
communications required or permitted by this Agreement shall be in writing and
shall be deemed given to a Party when (a) delivered to the appropriate address
by hand or by nationally recognized overnight courier service (costs prepaid);
(b) sent by facsimile or e-mail with confirmation of transmission by the
transmitting equipment, so long as such facsimile or e-mail is followed by a
copy sent by mail; or (c) received or rejected by the addressee, if sent by
certified mail, return receipt requested, in each case to the following
addresses, facsimile numbers or e-mail addresses and marked to the attention of
the person (by name or title) designated below (or to such other address,
facsimile number, e-mail address or person as a Party may designate by notice to
the other Parties):
if to Acquirer, at:
American Pulp Exchange, Inc.
Attention: Xxxxx Xxxxxxx, President
0000 X Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
With a copy to:
Meltzer, Lippe, Xxxxxxxxx & Schlissell, LLP
Attn: Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
if to GMI, at:
General Media International, Inc.
Attention:__________________________
17
00 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxxxxx, Stang, Ziehl, Young & Xxxxx P.C.
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
000 0xx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Section 8.9 Governing Law; Consent to Jurisdiction.
(a) The interpretation and construction of this Agreement, and all
matters relating hereto, shall be governed by the laws of the State of New York
applicable to contracts made and to be performed entirely within the State of
New York.
(b) Any proceeding, action, litigation or claim (a "Proceeding")
arising out of or relating to this Agreement or any of the transactions
contemplated herein may be brought in the courts of the State of New York,
Borough of Manhattan, or, if it has or can acquire jurisdiction, in the United
States District Court for the Southern District of New York, and each of the
Parties irrevocably submits to the exclusive jurisdiction of each such court in
any such Proceeding, waives any objection it may now or hereafter have to venue
or to convenience of forum, agrees that all claims in respect of the Proceeding
shall be heard and determined only in any such court and agrees not to bring any
Proceeding arising out of or relating to this Agreement or any of the
transactions contemplated herein in any other court. The Parties agree that
either or both of them may file a copy of this paragraph with any court as
written evidence of the knowing, voluntary and bargained agreement between the
Parties irrevocably to waive any objections to venue or to convenience of forum.
Each Party hereto hereby consents to process being served in any such action or
proceeding by the mailing of a copy thereof to the address set forth opposite
its name below and agrees that such service upon receipt shall constitute good
and sufficient service of process or notice thereof. Nothing in this paragraph
shall affect or eliminate any right to serve process in any other manner
permitted by law.
Section 8.10 WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE ANY
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE
PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT
AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG
THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING
WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE SITTING WITHOUT A JURY.
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Section 8.11 Execution of Agreement. This Agreement may be executed
in one or more counterparts, each of which will be deemed to be an original copy
of this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement. The exchange of copies of this Agreement
and of signature pages by facsimile transmission shall constitute effective
execution and delivery of this Agreement as to the Parties and may be used in
lieu of the original Agreement for all purposes. Signatures of the Parties
transmitted by facsimile shall be deemed to be their original signatures for all
purposes.
Section 8.12 Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below unless the context otherwise
requires:
"Acquirer Common Stock" means the 250,000,000 authorized shares of
the common stock, par value $.0025 per share, of Acquirer.
"Acquirer Preferred Stock" means all authorized shares of preferred
stock of Acquirer.
"Assignment Agreement" means that certain Assignment and Assumption
Agreement in the form attached hereto as Exhibit H.
"Assumed Indebtedness" means the Secura Indebtedness, the Xxxx
Indebtedness, and the Target Management Indebtedness.
"Assumed Liabilities" means (a) all costs, liabilities and expenses
of GMI, GM or VP incurred in connection with this Agreement and the transactions
contemplated hereby, including legal, accounting and other professional fees and
other costs and expenses and (b) the Assumed Indebtedness.
"Assumption Agreement" means that certain Assumption of Liabilities
Agreement in the form attached hereto as Exhibit F.
"Consultants Stock Plan" means Acquirer's 2002 Consultant
Compensation Stock Plan.
"Control" of Person other than an individual means the power to
direct or cause the direction of the management of such Person.
"Damages" means any claims, losses, costs, or expenses (including
reasonable attorneys' fees and expenses) actually suffered or paid, exclusive of
loss of profits, consequential damages, or punitive damages.
"Encumbrance" means any lien, encumbrance, security interest,
restriction or claim of any kind and character.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
19
"Xxxx Indebtedness" means all Indebtedness, including principal,
interest, service charges, penalties, late fees or otherwise, under the Secured
Promissory Note dated as of October 7, 2002 of Xxxxxx X. Xxxxxxxx and/or GMI in
favor of Xxxxxx Xxxx and/or Metropolitan Lumber Company in the original
principal amount of $1,500,000, as amended from time to time.
"Governmental Authority" means any state or Federal court or other
governmental or regulatory body, agency or authority.
"Indebtedness" means, with respect to any person, any obligation of
such person for borrowed money, or for payment for services rendered or tangible
or intangible property acquired or leased, including without limitation (A) any
obligation owed for all or any part of the purchase price of any assets, (B)
accounts payable, (C) any obligations secured by any Encumbrance (including,
without limitation, any Encumbrance on after-acquired property) in respect of
property even though the person owning the property has not assumed or become
liable for the payment of such obligation, (D) any guarantee with respect to any
of the foregoing indebtedness of another person, (E) obligations in respect of
letters of credit, and (F) liabilities of any kind to any present or former
stockholders.
"Knowledge" means the knowledge of a ordinary Person after
reasonable investigation.
"Material Adverse Effect" means, with respect to a person, any
circumstance, change in or effect on such person that is materially adverse to
the business, operations, properties, financial condition or results of
operations of such person and its Subsidiaries, taken as a whole.
"Material Instrument" means, with respect to a person, any note,
bond, mortgage, indenture, license, franchise, permit, agreement, lease,
franchise agreement or other instrument or obligation to which such person is a
Party or by which such person or any of its properties or assets are bound.
"MBP" means Xxxxxx Xxxxxxx Partners, LLC.
"Party" to this Agreement refers to GMI or Acquirer when used in the
singular and both GMI and Acquirer when used in the plural.
"Person" means any individual, partnership, corporation, limited
liability company, or other legal entity.
"PH Capital" means PH Capital Holdings, LLC, a California limited
liability company.
"PH Capital Option Agreement" means the Option Agreement between PH
Capital, as Option Grantor, and GMI, as Option Holder, substantially in the form
attached hereto as Exhibit C.
"SEC" means the United States Securities and Exchange Commission.
20
"Secura Indebtedness" means all Indebtedness, including principal,
interest, service charges, penalties, late fees or otherwise, of Xxxxxx X.
Xxxxxxxx, GMI, or General Media Fine Arts, Inc. arising under the Amended and
Restated Master Trust Agreement dated July 29, 2002 between Xxxxxx X. Xxxxxxxx,
GMI and Secura Mortgage Management, LLC, as agent for the Lenders therein, as
amended from time to time or any promissory note or guaranty entered into in
connection therewith, as amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Stock" means Series A Preferred Stock of
Acquirer.
"Series B Purchase Agreement" means the Series B Preferred Stock
Purchase Agreement between Acquirer and MBP, substantially in the form attached
hereto as Exhibit A.
"Shareholders Agreement" means the Shareholders Agreement between
VP, PH Capital and GMI substantially in the form attached hereto as Exhibit B.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated
October 22, 2002 by and among VP, Acquirer, Xx Xxxxxx and Xxxxx Xxxxxxx.
"Subsidiary" of a Person means a corporation, limited liability
company, or other legal entity, over 50% of the beneficial ownership of which,
or over 50% of the voting power of the capital stock or membership interests of
which, are Controlled, directly or indirectly, by such Person.
"Target Management Indebtedness" means all Indebtedness, including
principal, interest, service charges, penalties, late fees or otherwise, under
the Promissory Note dated as of October 16, 2002 of Xxxxxx X. Xxxxxxxx and/or
GMI in favor of Target Management, LLC in the original principal amount of
$210,000, as amended from time to time.
"Tax Return" means any Federal, state or foreign income tax return
or other material tax return.
"Tax" means all requisite taxes, levies, imposts, tariffs and
assessments of any nature whatsoever payable to a Governmental Authority,
including unemployment and social security taxes, income tax withholding and
interest and penalties with respect to any of the foregoing.
"VP Option Agreement" means the Option Agreement between VP, as
Option Grantor, and GMI, as Option Holder, substantially in the form attached
hereto as Exhibit D.
"Warrant Agreement" means the Warrant Agreement between Acquirer, as
the Company, and VP, as the Warrant Holder, substantially in the form attached
hereto as Exhibit E.
21
IN WITNESS WHEREOF, each of the Parties have caused this Agreement
to be executed by their respective officers who have been duly authorized, all
as of the day and year first above written.
American Pulp Exchange, Inc., General Media International, Inc.,
a Florida corporation a New York corporation
By: s/s Xxxxx Xxxxxxx By: s/s X. Xxxxxxxx
----------------- ---------------
Xxxxx Xxxxxxx Xxxxxx X. Xxxxxxxx
Chairman, President, CFO and Chairman and President
Secretary
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EXHIBITS
Name Exhibit
---- -------
Series B Purchase Agreement A
Shareholders Agreement B
PH Capital Option Agreement C
VP Option Agreement D
Warrant Agreement E
Assumption Agreement F
Disclosure Schedule G
Assignment Agreement H
