EXHIBIT 2.1
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made as
of March 6, 1998, by and among THE FURIA ORGANIZATION, INC., a
Delaware corporation ("Purchaser"), and XXXX XXXXXXX GROUP (as
herein defined) and XXXX XXXXXXX SKIP XXXXXX the holders of an
aggregate of 100% of the outstanding shares of capital stock of
AMERICOM TELECOMMUNICATIONS CORPORATION , a Delaware corporation
(individually a "Shareholder" and collectively the
"Shareholders"), and AMERICOM TELECOMMUNICATIONS CORPORATION
("ATC" and with the Shareholders collectively the "ATC Parties").
RECITALS OF THE PARTIES:
WHEREAS, as of the date hereof, the Shareholders own all of
the issued and outstanding shares of the capital stock of
Americom Telecommunications Corporation ("ATC"); and
WHEREAS, Purchaser desires to acquire such shares of capital
stock of ATC held by the Shareholders, and the Shareholders
desire to sell to Purchaser or its designee all of said shares of
capital stock pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to
be derived and the representations and warranties, conditions and
promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
AGREEMENTS:
1. DEFINITIONS
1.1 General Definitions. Unless otherwise stated in this
Agreement, the following terms shall have the following meanings:
"Acquisition Shares": As defined in Section 2.2 hereof.
"Affiliate": Any Person that, directly or indirectly, controls,
or is controlled by or under common control with, another Person.
For the purposes of this definition, "control" (including the
terms "controlled by" and "under common control with"), as used
with respect to any Person, means the power to direct or cause
the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities or by contract or otherwise.
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"Assets": As defined in Section 3.10 hereof.
"ATC": Means Americom Telecommunications Corporation.
"ATC Balance Sheet". As defined in Section 3. 9 (a) hereof.
"ATC Bank Accounts". As defined in Section 3.10 (e) hereof.
"ATC Financial Statements". As defined in Section 3.9(a) hereof.
"ATC Shares". The shares of ATC Common Stock (par value $0.0001)
owned by the Shareholders and to be purchased by the Purchaser.
"Business": Means the business acquired or to be acquired by
Purchaser pursuant to this Agreement which may be more
particularly described as all of the business operations of ATC
including the business operations which have been conducted by
ATC since their respective dates of formation.
"Damages ": As defined in Section 6.2 hereof.
"Debt": All obligations for borrowed money.
"Disclosure Schedules: The package of disclosure schedules to
this Agreement delivered by the Shareholders and/or ATC to
Purchaser upon execution hereof and incorporated by reference to
the Section of this Agreement to which each such schedule
relates.
"Environmental Laws": All federal, state and local environmental,
health and safety laws, codes and ordinances and all rules and
regulations promulgated thereunder, governing (a) air emissions,
(b) discharges to surface water or ground water, (c) solid or
liquid waste disposal, (d) the use, storage, generation,
handling, transport, discharge, release, or disposal of toxic or
hazardous substances or wastes, or (e) other environmental,
health or safety matters, including, without limitation, the
Comprehensive Environmental Response Compensation and Liability
Act, the Resource Conservation and Recovery Act, the Federal
Water Pollution Control Act, the Clean Air Act, the Occupational
Safety and Health Act of 1970 ("OSHA"), the Safe Drinking Water
Act, the Toxic Substances Control Act, the Superfund Amendments
and Reauthorization Act of 1986, and other environmental
conservation or protection laws.
"Exchange Act": Means the Securities Exchange Act of 1934, as
amended.
"FOI Acquisition Shares": As defined in Section 2.2 hereof.
"FOI Balance Sheet": As defined in Section 4.4(a) hereof.
"FOI Financial Statements": As defined in Section 4.4(a) hereof.
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"GAAP": As defined in Section 1.2 hereof.
"Governmental Body": Any court or any federal, state, municipal
or other governmental department, commission, board, bureau,
agency, authority or instrumentality, domestic or foreign.
"Hazardous Materials": Means waste, substance, materials, smoke,
gas or particulate matter designated as hazardous, toxic or
dangerous under any Environmental Law.
"Indemnification Claim": As defined in Section 6.5 hereof.
"Indemnification Notice": As defined in Section 6.5 hereof.
"Indemnitor": As defined in Section 6.5 hereof.
"Insolvency Laws": Means bankruptcy, insolvency, fraudulent
conveyance, moratorium or other similar laws affecting the
enforcement of creditors' rights generally.
"Leases": As defined in Section 3.9(d) hereof.
"Lien": All mortgages, deeds of trust, claims, liens, security
interests, pledges, conditional sale contracts, claims, rights of
first refusal, options, charges, liabilities, obligations,
agreements, privileges, liberties, easements, rights-of-way,
powers of attorney, limitations, reservations, restrictions and
other encumbrances of any kind.
"Material Adverse Effect": Any change, development or effect
(individually or in the aggregate) in the general affairs,
management, business, goodwill, results of operations, condition
(financial or otherwise), assets, liabilities or prospects
(whether or not the result thereof would be covered by insurance)
that will or can reasonably be expected to result in a cost,
expense, charge, liability, loss of revenue or diminution in
value equal to or greater than $ 10,000.00.
"Material Contracts": As defined in Section 3.8 hereof.
"Order": Any order, writ, injunction, decree, judgment, award or
determination of any Governmental Body.
"Xxxx Xxxxxxx Group". Those persons listed in Exhibit 1.1
hereof.
"Permits": All permits, authorizations, certificates, approvals,
registrations, variances, exemptions, rights-of-way, franchises,
privileges, immunities, grants, ordinances, licenses and other
rights of every kind and character (a) under any (1) federal,
state, local or foreign statute, ordinance or regulation, (2)
Order or (3) contract with any Governmental Body or (b) granted
by any Governmental Body.
"Permitted Encumbrances": (a) Liens for Taxes and assessments
not yet due and payable and (b) such Liens, minor imperfections
of title and easements on real property, which do not in any
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material respect detract from the value of such real property and
do not interfere with the present use of the property.
"Person": An individual, partnership, joint venture,
corporation, company, limited liability company, bank, trust,
unincorporated organization, Governmental Body or other entity or
group.
"Proceeding": Any action, order, claim, suit, proceeding,
litigation, investigation, inquiry, review or notice.
"Property": That property both real and personal owned by ATC
and used in connection with the operation of the Business;
specifically property referred to in ATC Financial Statements.
"Purchaser": As defined in the Introduction hereof, together
with the designee of such Purchaser, if any, as permitted by
Section 7.7(c) hereof.
"Purchaser Indemnitee": As defined in Section 6.2 hereof.
"SEC": Means the U.S. Securities and Exchange Commission.
"Securities Act": Means the Securities Act of 1933, as amended.
"Shareholders": Means Xxxx Xxxxxxx Group and Xxxx Xxxxxxx Skip
Xxxxxx.
"Subsidiary" or "Subsidiaries" with respect to any corporation
shall mean any other corporation of which at least a majority of
the securities having by their terms ordinary voting power to
elect a majority of the Board of Directors of such other
corporation is at the time directly or indirectly owned or
controlled by such first corporation, or by such first
corporation and one or more of its Subsidiaries.
"Taxes": Any federal, state, local or foreign income, sales,
excise, real or personal property or other taxes, assessments,
fees, levies, imposts, duties, deductions or other charges of any
nature whatsoever (including, without limitation, interest and
penalties) imposed by any law, rule or regulation.
"Transaction" or "Transactions": The acquisition of stock and the
performance of the other covenants and transactions contemplated
by this Agreement.
"Transaction Expenses": Means legal fees and accounting fees
incurred in connection with the preparation, negotiation,
execution and performance of this Agreement and the Transactions.
"U.S.": The United States of America.
Other terms shall have the meaning ascribed to elsewhere herein.
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1.2 Accounting Terms and Definitions. Unless otherwise
specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with generally
accepted accounting principles as in effect from time to time,
applied on a consistent basis (except for changes concurred in by
the preparing party's independent accountants) ("GAAP").
1.3 Closing. The delivery, and the purchase and acceptance
of the FOI Acquisition Shares and the ATC Shares and the
confirmation of the transaction contemplated herein (the
"Closing") shall take place at the offices of Xxxxx & Xxxxxx,
0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, at 11:00 a.m.
on the Closing Date, which shall be February 26, 1998 (the
"Closing Date"), or any other date, place or time agreed upon by
the parties.
2. PURCHASE AND SALE OF STOCK
2.1 Agreement to Purchase and Sell. Subject to the terms
and conditions of this Agreement, the Shareholders shall sell,
transfer and deliver to Purchaser or its designee, and Purchaser
or such designee shall purchase, all of the outstanding shares of
capital stock of ATC (the "Stock").
2.2 Exchange. On the terms and subject to the conditions
herein expressed, and based upon the representations, warranties
and agreements contained herein, the Purchaser agrees to transfer
and assign an aggregate of 75,000,000 fully paid, non-assessable
shares (the "Acquisition Shares") of common stock, par value
$0.0001 per share, of the Purchaser (the "FOI Common Stock") to
the Shareholders in the following specific amounts to each such
Shareholder:
Shareholder Acquisition Shares
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Xxxx Xxxxxxx Group 56,805,000
Xxxx Xxxxxxx Skip Xxxxxx 18,195,000
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TOTAL 75,000,000
2.3 Deliveries By Shareholders. Upon execution of this
Agreement, each of the Shareholders shall deliver to Purchaser,
or cause ATC to deliver, (i) certificates representing all of the
shares of Stock held of record by such Shareholder, duly endorsed
in blank and accompanied by duly executed instruments of
transfer, which shall transfer to Purchaser good title to the
Stock, free and clear of all Liens, and (ii) the corporate minute
books, stock transfer ledgers, blank certificate books and
corporate seals of ATC and any predecessor companies, if any. In
addition, upon execution of this Agreement, Purchaser shall issue
and deliver to each of the Shareholders, an original stock
certificate executed in accordance with the Bylaws of the
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Purchaser for that number of Acquisition Shares set forth in, or
by reference to, Section 2.2 hereof. None of the deliveries
contemplated in this Section shall be complete until all such
deliveries are complete.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each of the Shareholders, jointly and severally, hereby
represents and warrants to Purchaser that the following are true
and correct as of the date of this Agreement, regardless of what
investigations, if any, Purchaser shall have made prior hereto:
3.1 Organization; Qualification. ATC is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware. ATC has full corporate power and
authority to own and lease all of the properties and assets it
now owns and leases and to carry on its ,0 as now being
conducted. ATC is duly qualified as a foreign corporation and is
in good standing to do business in each jurisdiction in which 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 so to qualify would not have a Material
Adverse Effect on ATC.
3.2 Authority Relative to this Agreement. This Agreement
has been duly and validly executed and delivered by the
Shareholders, and constitutes a legal, valid and binding
obligation of the Shareholders, enforceable against each of them
in accordance with its terms except as enforcement hereof may be
limited by Insolvency Laws. Neither of the Shareholders is
suffering under any legal disability which would prevent him from
executing, delivering or performing his obligations under the
this Agreement or consummating the Transactions, make such
execution, delivery, performance or consummation voidable or
subject to necessary ratification and no signature or consent of
any third party is necessary in connection therewith for the
Transactions to be binding upon and enforceable against the
Shareholders and their property.
3.3 Capitalization. The authorized capital stock of ATC
consists of 20,000,000 shares of Common Stock, of which, as of
the date hereof, 20,000,000 shares of Common Stock are validly
issued and outstanding, fully paid and nonassessable. As of the
date hereof, there are no shares of Common Stock held in the
treasury of ATC. The Common Stock is the only issued and
outstanding class of Stock of ATC. There is no outstanding
subscription, contract, convertible or exchangeable security,
option, warrant, call or other right obligating ATC to issue,
sell, exchange or otherwise dispose of, or to purchase, redeem or
otherwise acquire any ownership interest of ATC or any securities
convertible into any ownership interest of ATC. There are no
voting trusts, shareholders agreements or other voting
arrangements by or between the shareholders of ATC, whether or
not ATC is a party thereto. No shares of Stock, have been issued
or disposed of in violation of any preemptive rights of any
Person or applicable federal or state securities laws. Except as
set forth in this Agreement or pursuant to the laws of Florida
applicable to corporations generally, there are no restrictions,
including but not limited to, self-imposed restrictions, on the
retained earnings of ATC or on the ability of ATC to declare and
pay dividends. There are no stock appreciation rights, equity
appreciation plans, stock valuation plans
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or similar agreements or arrangements pursuant to which any
Person shall have the right to receive any money or property with
respect to the equity securities, capital structure or
shareholders equity, or any increase in the value of any of them,
of ATC
3.4 Title to ATC Shares. Each of the Shareholders has full
record and beneficial ownership of the number of shares of Common
Stock set forth opposite his name below. Each Shareholder holds
all such shares of Common Stock free and clear of all Liens, and
possesses full legal power to convey same to Purchaser free and
clear of Liens.
Number of Shares
Shareholder of Common Stock
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Xxxx Xxxxxxx Group 14,828,000
Xxxx Xxxxxxx Skip Xxxxxx 5,172,000
3.5 Subsidiaries; Shareholder Loans. ATC does not have any
Subsidiaries. Furthermore, ATC does not own any equity, profit
sharing, participation or other interest in any Person. ATC does
not have any loans outstanding to or from any of its Shareholders
or other Affiliates.
3.6 Consents and Approvals. Except as set forth in or
otherwise required by this Agreement, the execution, delivery and
performance by each of the Shareholders of this Agreement and the
consummation of the Transactions by them requires no consent,
approval, waiver, order or authorization of, action by or in
respect of, or registration or filing with, any Governmental Body
or other Person.
3.7 No Violations. The execution, delivery and performance
of this Agreement by each of the Shareholders, the consummation
by each of the Shareholders of the Transactions or compliance by
each of the Shareholders with any of the provisions of this
Agreement does not and will not (a) conflict with or result in
any breach or violation of any provision of the Articles of
Incorporation or Bylaws of ATC, (b) result in a default, or give
rise to any right of termination, cancellation or acceleration or
loss of any material benefit (with or without the giving of
notice or lapse of time or both), under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, trust (constructive or otherwise), agreement, lease (of
real or personal property) or other instrument or obligation to
which either Shareholder or ATC is a party or by which either
Shareholder or ATC may be bound, (c) result in the creation or
imposition of any Lien, on any of the property of ATC, (d)
violate any Order, statute, rule or regulation applicable to any
Shareholder or ATC, or (e) violate any territorial restriction on
the Business of ATC or any noncompetition or similar arrangement
binding upon ATC.
3.8 Instruments in Full Force and Effect. Schedule 3.8
contains a complete and accurate list of all ATC's material
contracts, agreements, understandings, commitments and
obligations, whether written or oral and ATC has provided copies
of such material contracts to
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Purchaser prior to the date hereof (including, without
limitation, Leases, customer and vendor contracts, licenses,
royalties, operating and capital leases, assignments and similar
agreements) of ATC (the "Material Contracts"). ATC is not a
party to any agreement, contract or covenant limiting the freedom
of ATC or any party contracting with ATC from competing in any
line of business with any Person in any geographic area. The
Material Contracts are valid, binding and in full force and
effect against ATC and have not been amended or supplemented in
any manner or respect except as disclosed on Schedule 3.8.
Except as set forth on Schedule 3.8, there are no defaults by ATC
under the Material Contracts and the Shareholders know of no
defaults thereunder by any other party thereto, and no event has
occurred that with the lapse of time or action or inaction by any
party thereto would result in a violation thereof or a default
thereunder. Subject to any required third party consents, none
of the rights under the Material Contracts will be impaired by
the consummation of the Transactions, and all such rights will
inure to and be enforceable by Purchaser after the date hereof
without the authorization, consent, approval, or filing with, any
other Person.
3.9 Financial Statements, Undisclosed Liabilities, Etc.
(a) Shareholders have delivered to Purchaser the
unaudited balance sheet of ATC dated as of February 26, 1998
(the "Balance Sheet") and the unaudited statements of
operations for the periods then ended (such Balance Sheet
and the related statements of operations being hereinafter
collectively referred to as the "Financial Statements").
Schedule 3.9 of the Disclosure Schedules contains a true and
correct copy of the Financial Statements.
(b) The Financial Statements have been prepared in
conformity with GAAP, consistently applied, and on that
basis fairly present the financial position of ATC as of the
respective dates thereof and for the respective periods
indicated. The Financial Statements are true, complete and
correct in all material respects and have been prepared from
the books and records of ATC consistently with ATC's past
practices.
(c) The trade accounts and other receivables of ATC
which are classified as current assets on the Balance Sheet
are or were bona fide receivables, were acquired in the
ordinary course of business, are stated in accordance with
GAAP and, subject to the reserve for doubtful accounts, if
any, are good and collectible. There are no receivables of
ATC owed by Affiliates thereof which are not disclosed in
the Financial Statements.
(d) ATC has no liabilities (contingent or otherwise)
other than:
(i) those set forth and adequately reserved
against in the Balance Sheet, and
(ii) those incurred since the date of the Balance
Sheet in the ordinary course of business, consistent
with past practices and listed in the Disclosure
Schedule which do not, in the aggregate, exceed $
5,000.00.
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(e) ATC has no Debt other than as disclosed in the
Financial Statements and the Disclosure Schedule.
(f) The ATC books of account have been accurately kept
in the ordinary course of business, the transactions entered
therein represent bona fide transactions, and the revenues,
expenses, assets and liabilities have been properly recorded
in such books.
(g) The inventories of ATC reflected on the Balance
Sheet have been valued in accordance with GAAP, and the
value of obsolete materials and materials of below standard
quality has been written down or reserved against in
accordance with GAAP. There have been no write-ups of
inventories or other assets.
(h) The aggregate fair market value of the equipment
used in the operation of the Business is at least equal to
the aggregate net book value thereof as set forth on the
Balance Sheet.
3.10 Title to and Condition of Assets and Property.
(a) Except for assets sold in the ordinary course of
business consistent with prior practice since the date of
the Balance Sheet, the assets currently held by ATC (the
"Assets") are all of the assets (whether real, personal,
tangible or intangible), privileges, rights, interests and
properties of ATC, that were used in, or intended for use
in, or that are necessary for the continued conduct of the
Business (including, without limitation, all personal
property reflected on the Balance Sheet). Except as
specifically set forth herein, ATC has good and marketable
title (in fee simple) to all Assets and such Assets are free
and clear of all Liens, except for the Permitted
Encumbrances. All material tangible Assets (i) are currently
in good operating condition and repair, ordinary wear and
tear excepted, (ii) are suitable for the use to which the
same are customarily put, (iii) are free from defects other
than minor defects that do not interfere with or detract
from the use or value thereof, (iv) are merchantable and not
obsolete, (v) are of a quality and quantity presently usable
in the ordinary course of the operation of the Business,
(vi) conform in all material respects with all applicable
legal requirements, and (vii) have been maintained in
accordance with the highest of industry practice. All of the
material fixed assets reflected in the Balance Sheet are
stated at cost less aggregate allowances for depreciation
and amortization, which have been provided for based upon
the estimated useful lives of the assets currently used in
the operation of the Business.
(b) Since the date of the Balance Sheet, ATC has not
sold, transferred, leased, distributed or otherwise disposed
of any of its assets or properties, or agreed to do so
except for sales of products in the ordinary course of
business or the disposition of immaterial assets in the
ordinary course of business or which in the reasonable
judgment of management are not necessary or advisable to the
efficient operations of the Business.
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(c) Set forth in the exhibit attached is a true and
complete description of all real and personal property
currently leased or otherwise occupied or used but not owned
by ATC, true, correct and complete copies of which leases
and other agreements, including all amendments and
modifications thereto have been provided to Purchaser
(collectively, the "Leases"). Each of the Leases is a valid
and binding obligation of the parties thereto and neither
ATC nor the lessor thereunder has been or is in default
thereunder, and no condition exists that with notice or
lapse of time or both would constitute a default under any
such Lease. ATC enjoys peaceful and undisturbed possession
under all such Leases to which it is a party. None of the
rights of ATC under any Lease will be impaired by the
consummation of the Transactions.
(d) Set forth in the exhibit attached is a true and
correct list of the names of each bank, savings and loan or
other financial institution in which ATC has an account of
any kind or nature whatsoever, including checking accounts,
cash contribution accounts, safe deposit boxes and lock-box
arrangements (each a "Bank Account"), together with a list
of account numbers and the names of all Persons authorized
to draw thereon or to have access thereto. ATC does not
maintain a Bank Account other than as set forth below.
3.11 Investigation, Litigation and Compliance with Laws.
Except as set forth in this Section 3.11, there is no Proceeding
pending or threatened against, relating to or affecting ATC or
any of its Assets or any officer or director of ATC, at law or in
equity, before any Governmental Body nor is there any basis for
asserting the foregoing. The Proceedings listed in this
Section 3.11, if any, (i) pertain to routine claims by Persons
other than Governmental Bodies that are covered by insurance
(subject to applicable insurance deductibles), (ii) pertain to
normal product warranty claims arising in the usual and ordinary
course of business for replacement of products processed by ATC
which in the aggregate may be satisfied at nominal cost to ATC
and (iii) will not, singularly or in the aggregate, have, if
prosecuted to judgment against ATC or its Assets, a Material
Adverse Effect. Neither ATC nor any of its Assets is
specifically by name, subject to any currently existing Order.
ATC has not violated or failed to comply with any statute, law,
ordinance, regulation, rule or order of any foreign, federal,
state or local government or any other Governmental Body or any
Order of any Governmental Body, applicable to its Business,
except where such violations or failure to comply would not have
a Material Adverse Effect. The Business is in conformity with
all federal, state and local energy, public utility, health, and
OSHA requirements and all other federal, state and local
governmental and regulatory requirements. There is no basis for
the assertion of any Proceeding by any Governmental Body or any
Person regarding any violation of the Environmental Laws, federal
or state securities laws or any other law, which, if determined
adversely to ATC, could have a Material Adverse Effect on ATC.
3.12 Absence of Changes. Since incorporation, the Business
of ATC has been operated in the ordinary course consistent with
past practice and, except as set forth in this Section 3.12,
there has not been (a) any material adverse change in the
Business, operations, properties, condition (financial or
otherwise), prospects, assets or liabilities of ATC (contingent
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or otherwise, whether due or to become due, known or unknown);
(b) any dividend declared or paid or distribution made on the
Stock of ATC, or any capital stock of ATC, redeemed or
repurchased; (c) any incurrence of Debt by ATC; (d) any salary,
bonus or compensation increases to any officers, employees or
agents of ATC; (e) any pending or threatened litigation or
disputes affecting ATC or any of its respective assets; (f) any
transaction or contract, or amended or terminated any transaction
or contract by ATC, except normal transactions or contracts
consistent in nature and scope with prior practices and entered
into in the ordinary course of business consistent with past
practices; (g) any mortgage, sale, transfer, distribution or
other disposition of any material assets by ATC; (h) any damage,
destruction or loss by ATC to or of its respective assets except
in the ordinary course of business and except to the extent that
any asset damaged, destroyed or lost has been repaired or
replaced; (i) except in the ordinary course of business and
consistent with past practice, any capital expenditures for
additions to property, plant or equipment; (j) any grant or
credit to any customer or distributor on terms materially more
favorable than the terms on which credit has been extended to
such customer or distributor in the past nor changed the terms of
any credit previously extended; (k) any order accepted by a
customer that is more than 60 days delinquent in an account
receivable of ATC; or (l) any other change in the nature of, or
the manner of conducting, the Business, other than changes that
neither have had, nor reasonably may be expected to have, a
Material Adverse Effect.
3.13 Environmental Matters. No Hazardous Material exists in
any structure located on, or exists on or under the surface of,
the Real Property or any other real property owned, leased or
otherwise used by ATC, any predecessor or successor of ATC or any
affiliate of ATC in connection with the Business. Except to the
extent specifically set forth in this Section 3.13, ATC has never
been in violation of any Environmental Law. Except as set forth
in this Section 3.13, there are not any environmental assessments
or audits of either of ATC or any of their respective assets.
There is no Proceeding pending or threatened against ATC relating
to the environment nor is there a basis for the assertion against
ATC of any Proceeding. Except as set forth in this Section 3.13,
ATC has not received notice of, nor does it know of, any past,
present or future events, conditions, facts, circumstances,
activities, practices, incidents, actions or plans that may
interfere with or prevent compliance or continued compliance or
that might constitute a violation of any Environmental Laws which
relate to the use, ownership or occupancy of the Real Property or
the operation of the Business. There are no underground storage
tanks, pits, sumps or impoundments (as defined under the
Environmental Laws) located on or under the Real Property or on
any other real property owned, leased or otherwise used by ATC,
any predecessor or successor to ATC or Affiliate of ATC in its
Business.
3.14 Permit Matters. ATC maintains all Permits required to
operate as a business or to operate the Business. Each of such
Permits and ATC's rights with respect thereto (a) is valid and
subsisting, in full force and effect, and enforceable by ATC and
(b) following consummation of the Transactions, will continue to
be valid and subsisting in full force and effect and enforceable
by Purchaser without any consent or approval of any Governmental
Body or third party; or, in lieu of such existing Permits,
replacement or substitute Permits will be available to or
obtainable by Purchaser at little or no cost in the ordinary
course without any interruption
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of the conduct of the Business following the date hereof,
assuming timely applications therefor and reasonable diligence in
pursuit thereof by Purchaser. ATC is in compliance in all
material respects with the terms of the Permits. None of such
Permits have been, or to the knowledge of the Shareholders, are
threatened to be, revoked, canceled, suspended or modified.
3.15 Taxes. All Taxes, assessments and other governmental
charges that are due and payable by ATC, other than those
presently payable without penalty or interest, have been timely
paid, and ATC has timely filed all federal, state and other Tax
returns required by law to be filed by it. All such Tax reports
or returns are true, complete and correct in all respects with
regard to ATC for the periods covered thereby. ATC is not
delinquent in the payment of any Tax, assessment or governmental
charge. There is no Tax deficiency asserted against ATC, and
there is no unpaid assessment, proposal for additional Taxes,
deficiency or delinquency in the payment of any of the Taxes of
ATC or any violation of any federal, state, local or foreign Tax
law that could be asserted by any taxing authority. There are no
Tax Liens upon any Assets. No Internal Revenue Service, state or
local, audit, investigation or Proceeding of ATC is pending or
threatened, and the results of any completed audits are properly
reflected in the Financial Statements. ATC has not granted any
extension to any taxing authority of the limitation period during
which any Tax liability may be asserted. ATC has not committed
any material violation of any federal, state, local or foreign
Tax laws. All monies required for the payment of Taxes not yet
due and payable with respect to the operations of ATC through and
including the date hereof have been approved, reserved against
and entered upon the books and Financial Statements. All monies
required to be withheld by ATC from employees or collected from
customers for income taxes, social security and unemployment
insurance taxes and sales, excise and use taxes, and the portion
of any such taxes to be paid by ATC to governmental agencies or
set aside in accounts for such purpose have been approved,
reserved against and entered upon the books and Financial
Statements.
3.16 Product Warranties. There is no claim against or
liability of ATC on account of product warranties or with respect
to the manufacture, process or sale of products, and there is no
basis for any such claim on account of products heretofore
manufactured, processed or sold.
3.17 Transactions with Affiliates. Except as set forth
herein since the date of the Balance Sheet, ATC has not engaged
in any loans, leases, contracts or other transactions with any
director, officer or key employee of ATC, or any member of any
such individual's immediate family or any other Affiliate
thereof.
3.18 Disclosure.
(a) The Shareholders have delivered or made available
to Purchaser true, complete and correct copies of all
documents listed herein and all other information requested
for deciding whether to consummate the Transaction
contemplated hereby. No representation or warranty of
Shareholders or contained in this Agreement contains any
untrue statement. No representation or warranty of the
Shareholders contained in this
-12-
Agreement or statement in the Disclosure Schedules attached
hereto omits to state a material fact necessary in order to
make the statements herein or therein, in light of the
circumstances under which they were made, not misleading.
(b) There is no fact known to any of the Shareholders
which has specific application to the Business and which
could have a Material Adverse Effect but which has not been
set forth in this Agreement.
(c) The disclosures in the Disclosure Schedules
attached hereto shall relate only to the representations and
warranties in the Section of this Agreement to which they
expressly relate and to no other representation or warranty
in this Agreement.
(d) In the event of any inconsistency between the
statements in the body of this Agreement and those in the
Disclosure Schedules attached hereto (other than an
exception expressly set forth as such in the Disclosure
Schedule in relation to a specifically identified
representation or warranty), those in this Agreement shall
control.
3.19 Investment in Acquisition Shares. Each of the
Shareholders represents that he is purchasing the Acquisition
Shares for investment, without any view to the sale or further
distribution of any part thereof. THE SHAREHOLDERS RECOGNIZE THAT
THE ACQUISITION SHARES ARE HIGHLY SPECULATIVE AND THAT THE RISK
OF LOSS OF ALL OR A PORTION OF ANY INVESTMENT THEREIN IS HIGH.
Each of the Shareholders represents that he has adequate means
for providing for his current and future contingencies, has no
need for liquidity with regard to his investment in the
Acquisition Shares and is able to bear the economic risk of the
investment therein including, but not limited to, complete loss
of such investment or possible adverse tax consequences. Each of
the Shareholders represents, warrants and covenants that he will
not dispose of any of the Acquisition Shares being acquired
pursuant to the Transactions unless and until (i) he has
delivered to the Purchaser an opinion of counsel in form and
substance, and from counsel reasonably acceptable to counsel for
the Purchaser, to the effect that the contemplated transfer of
the Acquisition Shares is exempt from the registration
requirements of and otherwise in compliance with the Securities
Act and any applicable state securities laws or (ii) such
Acquisition Shares have been validly registered with the SEC and
any and all applicable state securities boards.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Shareholders that
the following are true and correct as of the date of this
Agreement, regardless of what investigations, if any, the
Shareholders shall have made prior hereto:
4.1 Organization; Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Purchaser has full
corporate power and authority to own and lease all of the
properties and assets it now owns and leases and to carry on its
business as now being conducted. Purchaser is duly qualified as a
-13-
foreign corporation and is in good standing to do business in
each jurisdiction in which 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 so to qualify
would not have a Material Adverse Effect on Purchaser.
4.2 Authority Relative to this Agreement. Purchaser has
full corporate power and authority to execute, deliver and
perform this Agreement and to consummate the Transactions
contemplated hereby. The execution and delivery by the Purchaser
of this Agreement and the consummation of the Transactions
contemplated hereby and thereby, have been duly and validly
authorized by the Board of Directors of the Purchaser and no
other corporate proceedings on the part of the Purchaser are
necessary with respect thereto. This Agreement has been duly and
validly executed and delivered by the Purchaser and constitutes a
legal, valid and binding obligation of the Purchaser, enforceable
against it in accordance with its terms, except as enforcement
hereof may be limited by Insolvency Laws. Purchaser will take
all corporate action that is necessary for Purchaser to complete
the Transactions and that is required to be completed by
Purchaser pursuant to this Agreement.
4.3 Acquisition Shares. The Acquisition Shares to be
issued to the Shareholders upon execution of this Agreement shall
be validly issued and outstanding, fully paid and nonassessable.
The Acquisition Shares will be "restricted securities" (as such
term is defined in Rule 144 promulgated under the Securities Act)
and will not be registered with the SEC under the Securities Act.
4.4 Financial Statements.
(a) Purchaser will use its best efforts to delivered
to Shareholders the audited balance sheets of the Purchaser
dated as of June 30, 1997 (the "FOI Balance Sheet") and the
audited statement of operations for the period then ended
(such FOI Balance Sheet and the related statement of
operation being hereinafter collectively referred to as the
"FOI Financial Statements"); however, Purchaser represents
and Shareholders acknowledge, Purchaser has no assets, no
operations, no employees, and no income or revenue.
(b) The FOI Financial Statements have been prepared in
conformity with GAAP, consistently applied, and on that
basis fairly present the financial position of the Purchaser
(subject to the absence of footnotes and to normal,
recurring year-end adjustments, which do not, and will not,
have a Material Adverse Effect on the Purchaser), as of the
date thereof and for the period indicated. The FOI Financial
Statements are true, complete and correct in all material
respects and have been prepared for the books and records of
the Purchaser consistently with the Purchaser's past
practices.
4.5 Investment in Stock. Purchaser represents that it is
purchasing the Stock for investment, without any view to the sale
or further distribution of any part thereof. Purchaser
represents, warrant and covenants that it will not dispose of any
of the Stock being acquired
-14-
pursuant to the Transactions unless and until (i) it has obtained
an exemption from the registration requirements of the Securities
Act and any applicable state securities laws or (ii) such Stock
has been validly registered with the SEC and any and all
applicable state securities boards.
4.6 No Further Warranties. Except as specifically provided
in this Article 4, the Purchaser makes no warranties, express or
implied, and makes no representations with respect to the assets,
business operations or prospects of Purchaser.
5. ADDITIONAL AGREEMENTS
5.1 Agreement to Consummate. At any time after the date
hereof, if any further action is necessary, proper or advisable
to carry out the purposes of this Agreement, then as soon as is
reasonably practicable, each party to this Agreement shall take,
or cause its proper officers to take, such action.
5.2 Agreement Regarding Brokers. Each party agrees that he
or it will pay or dispute, and hold the other parties harmless
from, any claims of brokers or others for finder's or brokerage
fees asserted as a result of representations by such party to
such brokers or others, regardless of whether the existence of
such brokers or others are disclosed herein.
5.3 Agreement Regarding FOI. Each party understands and
acknowledges that FOI has not conducted business since
approximately July 1, 1995 and that FOI has not timely filed all
forms, reports and documents with the SEC since March 31,1993
that are required to be filed by it under the Exchange Act,
including, without limitation, Forms 10-Q, 10-K and 8-K.
Shareholders agree that upon the execution of this Agreement and
for the twelve (12) month period thereafter, Shareholders shall
(a) cause FOI to meet all filing and registration requirements
under the Exchange Act and (b) otherwise cause FOI to be current
under the Exchange Act.
5.4 Notice. The Shareholders shall promptly give notice to
the Purchaser upon becoming aware of the occurrence or failure to
occur, or the impending or threatened occurrence or failure to
occur, of any event that would cause or constitute, any of their
representations or warranties being or becoming untrue. The
Purchaser will promptly give notice to ATC and the Shareholders
upon becoming aware of the occurrence or failure to occur, of any
event that would cause or constitute, any of their
representations or warranties being or becoming untrue.
6. SURVIVAL AND INDEMNIFICATION
6.1 Survival of Representations and Warranties. The
representations and warranties of the Shareholders shall survive
the date of this Agreement. No investigation by the parties
hereto made heretofore or hereafter shall affect the
representations and warranties of the parties that are contained
herein.
-15
6.2 Indemnity.
(a) Shareholders jointly and severally agree to
indemnify and hold Purchaser, its officers, directors,
agents, attorneys and accountants ("Purchaser Indemnitees")
harmless from any and all damages, losses which shall
include any diminution in value, liabilities (joint or
several), payments, obligations, penalties, claims,
litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses (including
without limitation, fees, disbursements and expenses of
attorneys, accountants and other professional advisors and
of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively
"Damages"), directly or indirectly resulting from, relating
to or arising out of:
(i) any breach or nonperformance (partial or
total) of, or inaccuracy in, any representation or
warranty or covenant or agreement of either of the
Shareholders contained in this Agreement which survives
the date of this Agreement;
(ii) any losses or costs of defending against any
claims which may be made against Purchaser by any
Person claiming violations of any local, state, or
federal laws relating to the employment relationship,
including, but not limited to, wages, hours, concerted
activity, nondiscrimination, occupational health and
safety and the payment and withholding of Taxes, where
such claims arise out of circumstances occurring prior
to the date of this Agreement;
(iii) any actual or threatened violation of or non-
compliance with, or remedial obligation arising under,
any Environmental Laws arising from any event,
condition, circumstance, activity, practice, incident,
action or plan existing prior to the date of this
Agreement relating in any way to the assets or business
of ATC;
(iv) any damage, deficiency or cost, claim or
liability arising from or relating to the obligations
of ATC to file returns with regard to and to pay Taxes,
whether to the U.S. or any political subdivision
thereof;
(v) any obligation or liability, absolute or
contingent, which is not reflected or provided for in
the Balance Sheet, except any such obligation or
liability (x) incurred or accrued subsequent to the
date of the Balance Sheet in good faith, in the
ordinary course of business, consistent with past
practice and not in violation of this Agreement or (y)
otherwise permitted under the terms of this Agreement
to be incurred or accrued.
6.3 Indemnification if Negligence of Indemnitee. The
indemnification provided in this Article 6 shall be applicable
whether or not negligence of the applicable Purchaser Indemnitee
is alleged or proven.
-16-
6.4 No Third Party Beneficiaries. The foregoing
indemnification is given solely for the purpose of protecting the
parties to this Agreement and the Purchaser Indemnitees and shall
not be deemed extended to, or interpreted in a manner to confer
any benefit, right or cause of action upon, any other Person.
6.5 Indemnification Notice. If a Purchase Indemnitee
intends to exercise its right to indemnification provided in this
Article 6, such Purchaser Indemnitee shall provide the party or
parties from whom the indemnification will be sought (the
"Indemnitor") at least fifteen (15) days prior written notice
(the "Indemnification Notice") of such Purchaser Indemnitee's
intention to do so and the facts or circumstances giving rise to
the claim ("Indemnification Claim"). Nothing contained herein
shall preclude Purchaser Indemnitee from taking any actions
deemed reasonably necessary or appropriate in response to any
third party claims during such interim period. An Indemnification
Claim may, at the option of the Purchaser Indemnitee, be asserted
as soon as any situation, event or occurrence has been noticed by
the Purchaser Indemnitee regardless of whether actual harm has
been suffered or out-of-pocket expenses incurred. During such
fifteen (15) day period, the Indemnitor shall be entitled to cure
the defect or situation giving rise to the Indemnification Claim
to the satisfaction of the Purchaser Indemnitee. If the
Indemnitor is unwilling or unable to cure the defect giving rise
to the Indemnification Claim during such fifteen (15) day period,
the Purchaser Indemnitee may, on the sixteenth (16th) day after
the Indemnification Notice, seek indemnification as provided in
this Article 6.
6.6 Remedies of Purchaser. In any proceeding by Purchaser
to assert or prosecute any claims under, or to otherwise enforce,
this Agreement, the Shareholders covenant and agree that they
shall not assert as a defense or bar to recovery by Purchaser,
and hereby waive any right to so assert such defense or bar such
recovery, that (a) prior to the date of this Agreement, ATC shall
have had knowledge of the circumstances giving rise to the claim
being pursued by it; (b) prior to the date of this Agreement, ATC
engaged in conduct or took action that caused or brought about
the circumstances giving rise to its claim, or otherwise
contributed thereto; or (c) the Shareholders have a right of
contribution from ATC to the extent that there is any recovery
against them.
7. GENERAL PROVISIONS AND OTHER AGREEMENTS
7.1 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if and
when delivered personally or transmitted by telex, telecopy or
telegram, mailed by registered or certified mail (return receipt
requested) or sent by a recognized next business day courier to
the following persons at the following addresses (or at such
other address for a party as shall be specified by like notice):
-17-
(a) If to Purchaser:
The Furia Organization, Inc.
P. O. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. XxXxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Held, Esq.
Telecopy: (000) 000-0000
(b) If to the Shareholders:
Xxxx Xxxxxxx
0000 Xxxxxxx x Xxxxxx XX0000
Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Xxxx Xxxxxxx Skip Xxxxxx
00000 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
7.2 Fees and Expenses. The Shareholders shall pay the
Transaction Expenses of FOI including Legal not to exceed
$15,000.00 and Accounting not to exceed $15,000.00; provided,
however, that the Transactions are completed. The Shareholders
shall pay all of their own Transaction Expenses and all other
expenses incurred in connection with this Agreement and the
Transactions.
7.3 Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement. Terms such as
"herein," "hereof," "hereinafter" refer to this Agreement as a
whole and not to the particular sentence or paragraph where they
appear, unless the context otherwise requires. Terms used in the
plural include the singular, and vice versa, unless the context
otherwise requires.
7.4 Counterparts. This Agreement may be executed by
facsimile in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
7.5 Cost of Litigation. If any legal action or other
proceeding is brought for the enforcement of this Agreement
because of an alleged dispute, breach, default or
-18-
misrepresentation in connection with the Agreement or the
Transactions contemplated hereby, the successful or prevailing
party or parties shall be entitled to recover reasonable
attorneys' fees and other costs incurred in connection with such
action or proceedings, in addition to any other relief to which
it or they may be entitled.
7.6 Waiver of Trial by Jury. Purchaser and the
Shareholders hereby irrevocably waive all right to trial by jury
in any action, proceeding or counterclaim arising out of or
relating to this Agreement, the Transactions contemplated hereby
or the actions of any of the parties or their representatives in
connection with the making, performance or enforcement thereof or
hereof.
7.7 Miscellaneous. This Agreement (a) constitutes the
entire agreement and supersedes all other prior agreements and
understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof; (b) is not
intended to and shall not confer upon any other person any rights
or remedies hereunder or otherwise with respect to the subject
matter hereof, except for rights that may expressly arise as a
consequence of the Transaction; (c) shall not be assigned by
operation of law or otherwise, but may be assigned to a wholly-
owned Subsidiary of Purchaser; (d) has been drafted by all of the
parties to this Agreement and should not be construed against any
of the parties hereto; and (e) shall be governed in all respects,
including validity, interpretation and effect by the substantive
laws of the State of Texas without regard to conflict of law
provisions.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or have caused this Agreement to be executed by their
duly authorized officers.
THE FURIA ORGANIZATION, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: President & CEO
SHAREHOLDERS:
/s/ Xxxx Xxxxxxx Skip Xxxxxx
----------------------------------
Xxxx Xxxxxxx Skip Xxxxxx
-19-
XXXX XXXXXXX GROUP:
ECONOMIAS Y ESTRATEGIAS
CONSULTING
By: /s/ XXXX XXXXXXX*
-------------------------------
Its:
------------------------------
/s/ XXXX XXXXXXX
----------------------------------
Xxxx Xxxxxxx
/s/ XXXX XXXXXXX *
----------------------------------
Giovanna Gallotini
/s/ XXXX XXXXXXX *
----------------------------------
Xxxx X. Xxxxxx
/s/ XXXX XXXXXXX *
----------------------------------
Xxxxx Xxxxxx
/s/ XXXX XXXXXXX *
----------------------------------
Xxxx X. Xxxxxx
/s/ XXXX XXXXXXX *
----------------------------------
Xxxxx Xxxx Xxxxxxxxxxxx
-20-
/s/ XXXX XXXXXXX *
----------------------------------
Xxxxx Xxxxx Buces
/s/ XXXX XXXXXXX *
----------------------------------
Xxxxx X. Xxxxxxx
/s/ XXXX XXXXXXX *
----------------------------------
Xxxxxxx Xxxxx Ledo
/s/ XXXX XXXXXXX *
----------------------------------
Xxxxxxxxx Xxxxxxxxx
* Executed by Xxxx Xxxxxxx by
Power of Attorney
EXHIBIT 1.1
LIST OF STOCKHOLDERS AND NUMBER OF SHARES
XXXX XXXXXXX 12,068,000
0000 XXXXXXX 0 XXXXXX XX0000
XXXXX, XX 00000
ECONOMIAS Y ESTRATEGIAS CONSULTING 100,000
XXXXX 00 0XX X 00000
XXXXXX, XXXXX
GIOVANNA GALLOTINI 20,000
000 XXXXXXXXX XX.
XXXXXXXXX, XXXXXXX
XXXX X. XXXXXX AND XXXXX XXXXXX 20,000
00000 XX 000XX XX.
XXXXX, XX 00000
XXXX X. XXXXXX & XXXXX XXXX XXXXXXXXXXXX 20,000
BOX 000 XXXXXXXX XXXXXXX
XXX XXXX, XXXXXX XXXX 00000
XXXXX XXXXX BUCES 1,200,000
000 XXXXXXX XXXX
XXX. 0
XXXXX XXXXXX, XX 00000
XXXXX X. XXXXXXX 300,000
CALLE 6 S7-8
XXX XXXXXX XX XXXXXX
XXX XXXXXXX, XXXXXX XXXX 00000-0000
XXXXXXX XXXXX LEDO 600,000
0000 XXXXX XXXXX XXXXXX
XXXXX, XX 00000
XXXXXXXXX XXXXXXXX 500,000
0000 XXXXXX XX.
XXXXX XXXXXX, XX 00000
____________
14,828,000
-i-
EXHIBIT
-------
Bank Account for Americom Telecommunications Corporation is
maintained at:
TRANSATLANTIC BANK
Flagler Station Branch
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
