Exh. 10-a
REORGANIZATION AGREEMENT
AGREEMENT made this 9th day of December, 2005 among MAUI GENERAL
STORE, INC., a New York corporation ("MGS"), XXXXXXX XXXXXX, the majority
shareholder of MGS ("Xxxxxx"), PALMERA HOLDINGS, INC., a Florida
corporation ("Palmera"), and XXXXXX XXXXXX, counsel to Palmera (the
"Escrow Agent").
WHEREAS, the parties wish to effect the merger of Palmera with MGS,
followed by the solicitation of sufficient capital for MGS to enable it to
implement the business plan of Palmera; and
WHEREAS, the parties wish to institute procedures which will effect
a partial rescission of the merger and related transactions in the event
that MGS does not acquire the necessary funds.
NOW, THEREFORE, it is agreed:
1. Formation of Vehicles.
a. Immediate upon the execution of this Agreement, MGS will
organize MGS Acquisition Corp. ("Merger Sub") as a Florida corporation,
having the characteristics ascribed to it in the Agreement and Plan of
Merger by and among MGS, Merger Sub, Xxxxxx and Palmera, annexed hereto as
Appendix A (the "Palmera Merger Agreement").
b. Immediate upon the execution of this Agreement, MGS will
organize MGS Trinity Acquisition Corp. ("Trinity Merger Sub") as a Florida
corporation, having the characteristics ascribed to it in the Agreement
and Plan of Merger by and among MGS, Trinity Merger Sub, Xxxxxx and
Trinity Biogenics, Inc. annexed hereto as Appendix B (the "Trinity Merger
Agreement").
c. Immediate upon the execution of this Agreement, Palmera will
organize Trinity Biogenics, Inc. ("Trinity") as a Florida corporation,
having the characteristics ascribed to it in the Trinity Merger Agreement.
d. Immediate upon the formation of Trinity, Palmera will enter into
the Sublicense and Service Agreement with terms customary to similar
agreements between related parties, pursuant to which (i) Palmera will
grant to Trinity an exclusive sublicense of Palmera's rights under the
Intellectual Property License Agreement between Palmera and The Xxxxx
Foundation and (ii) Trinity will retain Palmera as Trinity's exclusive
agent to conduct research utilizing the licensed intellectual property.
e. Upon completion of the private placement now being conducted by
Palmera and prior to January 11, 2006, Palmera will distribute to the its
shareholders as a dividend one share of Trinity common stock for each
Palmera share issued and outstanding.
2. Documentation. On January 11, 2006 (or such other date as to
which the parties shall agree), the parties hereto (and the new
subsidiaries described above) will take the following actions:
a. The parties hereto as well as each shareholder of Palmera (the
Palmera Stockholders") will execute the Escrow and Interim
Operations Agreement in the form annexed hereto as Appendix C.
b. The parties identified therein will execute the Palmera Merger
Agreement.
c. The parties identified therein will execute the Trinity Merger
Agreement.
3. Miscellaneous
a. Applicable Law. This Agreement shall be governed by the laws
of the State of Florida, without giving effect to the principles of
conflicts of laws thereof, as applied to agreements entered into and to be
performed in such state.
b. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
or made as follows:
(i) If sent by reputable overnight air courier (such as Federal
Express), 2 business days after being sent;
(ii) If sent by facsimile transmission, with a copy delivered in
the manner provided in clauses (i) or (iii) , when transmitted and receipt
is confirmed by the fax machine; or
(iii) If otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be
sent or delivered as follows:
If to Palmera, to:
M. Xxxxx Xxxxx, III
President
19321 US Highway 00 Xxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 727-535-9600
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to MGS and/or the Principal Stockholder, to:
Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxx. Xxxx, Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxx, Esq.
0000 Xx. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Escrow Agent, to
Xxxxxx Xxxxxx, Esq,
(contact information above).
c. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned by
any of the Parties (whether by operation of law or otherwise) without the
prior written consent of the other Parties. This Agreement will be
binding upon, inure to the benefit of and be enforceable by, the Parties
and their respective heirs, legal representatives, successors and assigns.
d. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which shall be considered one and the same agreement.
e. Information Statement. Promptly after the execution of this
Agreement, Palmera will provide to MGS the information required to be
included in an information statement filed pursuant to Rule 14f-1 of the
Securities and Exchange Commission. Promptly after receipt of said
information, MGS will prepare the information statement, file it with the
SEC, and mail it to its shareholders of record.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
MAUI GENERAL STORE, INC. PALMERA HOLDINGS, INC.
By: /s/Xxxxxxx Xxxxxx By: /s/Xxxxxxxx Xxxxx
-------------------------- -----------------------------
Xxxxxxx Xxxxxx, President Xx. Xxxxxxxx Xxxxx, Chairman
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
-------------------------- -----------------------------
XXXXXXX XXXXXX XXXXXX XXXXXX
APPENDIX A
AGREEMENT AND PLAN OF MERGER
by and among
Maui General Store, Inc.
MGS Acquisition Corp.
and
Palmera Holdings, Inc.
Dated as of January 11, 2006
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger dated as of January 11, 2006 (the
"Agreement") by and among Maui General Store, Inc., a corporation formed
under the laws of the State of New York ("MGS"), MGS Acquisition Corp., a
corporation newly formed under the laws of the State of Florida and a
wholly owned subsidiary of MGS (the "Merger Sub"), Palmera Holdings, Inc.,
a corporation formed under the laws of the State of Florida ("Palmera")
and Xxxxxxx Xxxxxx, the principal shareholder of MGS (the "Principal
Stockholder"). MGS, the Merger Sub, Palmera and the Principal Stockholder
are referred to herein individually as a "Party" and collectively as the
"Parties."
PREAMBLE
WHEREAS, MGS, the Principal Stockholder and Palmera are parties to a
Reorganization Agreement that contemplates a business combination between
MGS and Palmera; and
WHEREAS, in order to implement the Reorganization Agreement, MGS
will acquire Palmera pursuant to a merger transaction whereby, pursuant
to the terms and subject to the conditions of this Agreement, Palmera
shall become a wholly owned subsidiary of MGS through the merger of
Palmera with and into the Merger Sub (the "Merger");
WHEREAS, in the Merger all issued and outstanding shares of capital
stock of Palmera held by the stockholders of Palmera (the "Palmera
Stockholders") shall be cancelled and converted into 360,000,000 shares of
common stock of MGS, $0.001 par value per share (the "Merger Shares"),
which shall represent 80.00% of the issued and outstanding common stock
of MGS after the Merger; and
WHEREAS, MGS, Palmera and the Merger Sub intend that the Merger
qualify as a "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the parties
intend this Agreement to qualify as a "plan of reorganization" within the
meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations and warranties contained herein, the Parties,
intending to be legally bound, hereby agree as follows:
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings set forth below:
"Applicable Law" means any domestic or foreign law, statute, regulation,
rule, policy, guideline or ordinance applicable to the businesses of the
Parties, the Merger and/or the Parties.
"FBCA" means the Florida Business Corporation Act.
"GAAP" means generally accepted accounting principles in the United States
of America as promulgated by the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board or any successor
institutes concerning the treatment of any accounting matter.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, claim, encumbrance, royalty interest,
any other adverse claim of any kind in respect of such property or asset,
or any other restrictions or limitations of any nature whatsoever.
"Material Adverse Effect" with respect to any entity or group of entities
means any event, change or effect that has or would have a materially
adverse effect on the financial condition, business or results of
operations of such entity or group of entities, taken as a whole.
"Person" means any individual, corporation, partnership, trust or
unincorporated organization or a government or any agency or political
subdivision thereof.
"Reorganization Agreement" shall mean the agreement of that name dated of
even date herewith and signed by MGS, the Principal Stockholder, Palmera
and the Palmera Stockholders.
"Surviving Entity" shall mean Palmera as the surviving entity in the
Merger as provided in Section 1.03.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means:
(i) any income, alternative or add-on minimum tax, gross receipts
tax, sales tax, use tax, ad valorem tax, transfer tax, franchise tax,
profits tax, license tax, withholding tax, payroll tax, employment tax,
excise tax, severance tax, stamp tax, occupation tax, property tax,
environmental or windfall profit tax, custom, duty or other tax, impost,
levy, governmental fee or other like assessment or charge of any kind
whatsoever together with any interest or any penalty, addition to tax or
additional amount imposed with respect thereto by any governmental or Tax
authority responsible for the imposition of any such tax (domestic or
foreign), and
(ii) any liability for the payment of any amounts of the type
described in clause (i) above as a result of being a member of an
affiliated, consolidated, combined or unitary group for any Taxable
period, and
(iii) any liability for the payment of any amounts of the type
described in clauses (i) or (ii) above as a result of any express or
implied obligation to indemnify any other person.
"Tax Return" means any return, declaration, form, claim for refund or
information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.
"Trinity" means Trinity BioGenics, Inc., a Florida corporation owned by
the Palmera Stockholders ("Trinity").
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER.
Upon the terms and subject to the conditions set forth in this
Agreement and in accordance with the FBCA, at the Effective Time (as
hereinafter defined), all Palmera Shares (as hereinafter defined) shall be
cancelled and converted into the right to receive the Merger Shares. In
connection therewith, the following terms shall apply:
(a) Exchange Agent. Xxxxxx Xxxxxx, Esq., counsel for Palmera,
shall act as the exchange agent (the "Exchange Agent") for the purpose of
exchanging Palmera Shares for the Merger Shares. At or prior to the
Closing, MGS shall deliver to the Exchange Agent the certificates for the
Merger Shares.
(b) Conversion of Securities.
(i) Conversion of Palmera Securities. At the Effective
Time, by virtue of the Merger and without any action on the part of MGS,
Palmera or the Merger Sub, or the holders of any of their respective
securities, each of the issued and outstanding shares of common stock of
Palmera (the "Palmera Shares") immediately prior to the Effective Time
shall be converted into and represent the right to receive, and shall be
exchangeable for, that number of Merger Shares as shall be determined by
dividing 360,000,000 by the number of then issued and outstanding Palmera
Shares (the "Palmera Conversion Rate").
(B) All Palmera Shares shall no longer be outstanding
and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares
shall cease to have any rights with respect thereto, except the right
to receive the Merger Shares to be issued pursuant to this Section
1.01(b)(i) upon the surrender of such certificate in accordance with
Section 1.08, without interest. No fractional shares may be issued;
but each fractional share that would result from the Merger will be
rounded to the nearest whole number of shares.
(C) The Merger Shares shall represent 80.00% of the
issued and outstanding common stock of MGS at the Effective Time after giving
effect to the Merger.
(ii) Surrender of Shares. At the Effective Time,
Palmera shall surrender to the treasury of MGS 50,000,000 shares of MGS
common stock purchased by it pursuant to the Stock Purchase Agreement
between Palmera and the Principal Stockholder.
(iii) Conversion of Merger Sub Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of Palmera,
MGS, the Merger Sub, or the holders of any of their respective securities,
each share of capital stock of Merger Sub outstanding immediately prior to
the Effective Time shall be converted into one share of the common stock
of the Surviving Entity and the shares of common stock of the Surviving
Entity ("Surviving Entity Shares") so issued in such conversion shall
constitute the only outstanding shares of capital stock of the Surviving
Entity and the Surviving Entity shall be a wholly owned subsidiary of MGS.
SECTION 1.02 CLOSING.
The closing of the Merger (the "Closing") will take place at the
offices of Xxxxxx Xxxxxx, Esq. on January 16, 2006, if each of the
conditions precedent set forth in Article V has been satisfied or waived,
or at such other date as MGS and Palmera shall agree (the "Closing Date"),
but in any event no later than January 23, 2006.
SECTION 1.03 MERGER; EFFECTIVE TIME.
At the Effective Time and subject to and upon the terms and
conditions of this Agreement, Merger Sub shall, and MGS shall cause Merger
Sub to, merge with and into Palmera in accordance with the provisions of
the FBCA, the separate corporate existence of Merger Sub shall cease and
Palmera shall continue as the Surviving Entity. The Effective Time shall
occur upon the filing with the Secretary of State of the State of Florida
of a Certificate of Merger (the "Certificate of Merger") substantially in
the form of Exhibit A attached hereto and executed in accordance with the
applicable provisions of the FBCA (the "Effective Time"). The date on
which the Effective Time occurs is referred to as the "Effective Date."
Provided that this Agreement has not been terminated pursuant to Article
VI, the Parties will cause the Certificate of Merger to be filed as soon
as practicable after the Closing.
SECTION 1.04 EFFECT OF THE MERGER.
The Merger shall have the effect set forth in Section 607.11101 of
the FBCA. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the properties, rights, privileges,
powers and franchises of Palmera and Merger Sub shall vest in the
Surviving Entity, and all debts, liabilities and duties of Palmera and
Merger Sub shall become the debts, liabilities and duties of the Surviving
Entity.
SECTION 1.05 ARTICLES OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS.
Pursuant to the Merger:
(a) The Articles of Incorporation and Bylaws of Palmera as in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation and Bylaws of the Surviving Entity immediately following the
Merger.
(b) The directors and officers of Palmera immediately prior to the
Merger shall be the directors and officers of the Surviving Entity
subsequent to the Merger.
SECTION 1.06 RESTRICTIONS ON RESALE
(a) The Merger Shares. The Merger Shares will not be registered
under the Securities Act, or the securities laws of any state, and cannot
be transferred, hypothecated, sold or otherwise disposed of until: (i) a
registration statement with respect to such securities is declared
effective under the Securities Act, or (ii) MGS receives an opinion of
counsel for the stockholders, reasonably satisfactory to counsel for MGS,
that an exemption from the registration requirements of the Securities Act
is available.
The certificates representing the Merger Shares which are being
issued to the Palmera Stockholders shall contain a legend substantially as
follows:
"THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR MAUI
GENERAL STORE, INC. RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR MAUI GENERAL
STORE, INC. THAT AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT IS AVAILABLE."
SECTION 1.07 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE OF CERTIFICATES. After the Effective Time and
pursuant to a customary letter of transmittal or other instructional form
provided by the Exchange Agent to the Palmera Stockholders, the Palmera
Stockholders shall be required to surrender all their Palmera Shares to
the Exchange Agent, and the Palmera Stockholders shall be entitled upon
such surrender to receive in exchange therefor certificates representing
the proportionate number of Merger Shares into which the Palmera Shares
theretofore represented by the stock transfer forms so surrendered shall
have been exchanged pursuant to this Agreement. Until so surrendered,
each outstanding certificate which, prior to the Effective Time,
represented Palmera Shares shall be deemed for all corporate purposes,
subject to the further provisions of this Article I, to evidence the
ownership of the number of whole Merger Shares for which such Palmera
Shares have been so exchanged. No dividend payable to holders of Merger
Shares of record as of any date subsequent to the Effective Time shall be
paid to the owner of any certificate which, prior to the Effective Time,
represented Palmera Shares, until such certificate or certificates
representing all the relevant Palmera Shares, together with a stock
transfer form, are surrendered as provided in this Article I or pursuant
to letters of transmittal or other instructions with respect to lost
certificates provided by the Exchange Agent.
(b) FULL SATISFACTION OF RIGHTS. All Merger Shares for which the
Palmera Shares shall have been exchanged pursuant to this Article I shall
be deemed to have been issued in full satisfaction of all rights
pertaining to the Palmera Shares.
(c) EXCHANGE OF CERTIFICATES. All certificates representing
Palmera Shares converted into the right to receive Merger Shares pursuant
to this Article I shall be furnished to MGS subsequent to delivery thereof
to the Exchange Agent pursuant to this Agreement.
(d) CLOSING OF TRANSFER BOOKS. On the Effective Date, the stock
transfer book of Palmera shall be deemed to be closed and no transfer of
Palmera Shares shall thereafter be recorded thereon.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MGS
AND THE MGS PRINCIPAL STOCKHOLDER
MGS and the MGS Principal Stockholder, and, where applicable, the
Merger Sub, hereby jointly and severally represent and warrant to Palmera,
as of the date of this Agreement and as of the Effective Time, as follows:
SECTION 2.01 ORGANIZATION, STANDING AND POWER.
MGS is a company duly incorporated, validly existing and in good
standing under the laws of the State of New York and has corporate power
and authority to conduct its business as presently conducted by it and to
enter into and perform this Agreement and to carry out the transactions
contemplated by this Agreement. Merger Sub is a company duly incorporated,
validly existing and in good standing under the laws of the State of
Florida and has corporate power and authority to enter into and perform
this Agreement and to carry out the transactions contemplated by this
Agreement. MGS has not engaged in any business activities since June
2005 other than negotiation of potential acquisitions, and has no material
property or assets. Other than its ownership of the Merger Sub, MGS does
not have an ownership interest in any Person. Merger Sub is a recently
formed corporation and prior to the date hereof and through the Effective
Date, Merger Sub shall not conduct any operating business, become a party
to any agreements, or incur any liabilities or obligations.
SECTION 2.02 CAPITALIZATION.
(a) There are 500,000,000 shares of capital stock of MGS
authorized, consisting of 500,000,000 shares of common stock, $0.001 par
value per share (the "MGS Common Shares"). As of the date of this
Agreement, there are 143,256,635 MGS Common Shares issued and outstanding.
(b) The MGS Principal Stockholder owns of record and beneficially
115,925,305 MGS Common Shares. No MGS Common Shares have been reserved for
issuance to any Person, and there are no other outstanding rights,
warrants, options or agreements for the purchase of MGS Common Shares
except as provided in this Agreement.
(c) All outstanding MGS Common Shares are validly issued, fully
paid, non-assessable, not subject to pre-emptive rights and have been
issued in compliance with all state and federal securities laws or other
Applicable Law. The Merger Shares issuable to the Palmera Stockholders
will, when issued pursuant to this Agreement, be duly and validly
authorized and issued, fully paid and non-assessable.
(d) There are 20,000,000 shares of capital stock of Merger Sub
authorized, consisting of 20,000,000 shares of common stock, $0.001 par
value per share (the "Merger Sub Common Shares").
SECTION 2.03 AUTHORITY FOR AGREEMENT.
The execution, delivery, and performance of this Agreement by each
of MGS and Merger Sub has been duly authorized by all necessary corporate
and shareholder action, and this Agreement, upon its execution by the
Parties, will constitute the valid and binding obligation of each of MGS
and Merger Sub enforceable against each of them in accordance with and
subject to its terms, except as enforceability may be affected by
bankruptcy, insolvency or other laws of general application affecting the
enforcement of creditors' rights. The execution and consummation of the
transactions contemplated by this Agreement and compliance with its
provisions by MGS and Merger Sub will not violate any provision of
Applicable Law and will not conflict with or result in any breach of any
of the terms, conditions, or provisions of, or constitute a default under,
MGS's Certificate of Incorporation, Merger Sub's Certificate of
Incorporation, or any of their Bylaws, in each case as amended, or, in any
material respect, any indenture, lease, loan agreement or other agreement
or instrument to which MGS is a party or by which it or any of its
properties are bound, or any decree, judgment, order, statute, rule or
regulation applicable to MGS or Merger Sub.
SECTION 2.04 FINANCIAL STATEMENTS.
(a) MGS has made available to Palmera copies of its audited
consolidated financial statements at December 31, 2004 and 2003 for the
fiscal years then ended, as well as its unaudited consolidated financial
statements for the fiscal period ending September 30, 2005 (collectively,
"MGS Financial Statements").
(b) Each set of consolidated financial statements (including, in
each case, any related notes thereto) contained in the MGS Financial
Statements was prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the
notes thereto). Such financial statements fairly present the consolidated
financial position of MGS as at the dates thereof and the consolidated
results of its operations and its consolidated cash flows for the periods
then ended.
(c) As at the date of this Agreement and the Closing, the
aggregate liabilities of MGS which would be required to be disclosed on a
balance sheet prepared in accordance with GAAP do not and will not exceed
$10,000.
SECTION 2.05 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30,
2005:
(a) There has not been any material adverse change in the
business, operations, properties, assets, or financial condition of MGS;
(b) MGS has not (i) amended its Certificate of Incorporation;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem,
any outstanding capital stock; (iii) made any material change in its
method of management, operation, or accounting; (iv) entered into any
material transaction (other than the assignment of certain claims to the
Principal Stockholder in exchange for his waiver of certain debts); or (v)
made any accrual or arrangement for payment of bonuses or special
compensation of any kind or any severance or termination pay to any
present or former officer or employee.
SECTION 2.06 GOVERNMENTAL AND THIRD PARTY CONSENTS
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with MGS or Merger Sub, is
required by or with respect to MGS or Merger Sub in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings
as may be required under (i) applicable securities laws, or (ii) the FCBA.
SECTION 2.07 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against, or to the best knowledge of MGS threatened against or affecting,
MGS or any of its assets or properties before any court or arbitrator or
any governmental body, agency or official.
SECTION 2.8 INTERESTED PARTY TRANSACTIONS
Except for debts to Xxxxxxx Xxxxxx which are disclosed on the MGS
Financial Statements, which have been satisfied in the manner recited in
Section 2.05(b) or will be satisfied in the manner set forth in Section
5.03(j) of this Agreement, MGS is not indebted to any officer or director
of MGS, and no such person is indebted to MGS.
SECTION 2.9 COMPLIANCE WITH APPLICABLE LAWS.
To the knowledge of MGS, the business of each of MGS and Merger Sub
has not been, and is not being, conducted in violation of any Applicable
Law.
SECTION 2.10 TAX RETURNS AND PAYMENT
MGS has duly and timely filed all material Tax Returns required to
be filed by it and has duly and timely paid all Taxes shown thereon to be
due. There is no material claim for Taxes that is a Lien against the
property of MGS. MGS has not received written notification of any audit
of any Tax Return of MGS being conducted or pending by a Tax authority
where an adverse determination could have a Material Adverse Effect on
MGS, no extension or waiver of the statute of limitations on the
assessment of any Taxes has been granted by MGS which is currently in
effect, and MGS is not a party to any agreement, contract or arrangement
with any Tax authority or otherwise, which may result in the payment of
any amount in excess of the amount reflected on the MGS Financial
Statements.
SECTION 2.11 MGS PUBLIC FILINGS
MGS is a fully compliant reporting company under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and all MGS public
filings required under the Exchange Act have been made. All public
filings by MGS under the Exchange Act are true, correct and complete in
all material respects, are not misleading and do not omit to state any
material fact which is necessary to make the statements contained in such
public filings not misleading in any material respect. To the knowledge
of MGS, MGS has not been threatened or is not subject to removal of its
common stock from the OTC Bulletin Board.
SECTION 2.12 MGS AGREEMENTS
MGS is not a party to any material agreements.
SECTION 2.13 EMPLOYEES AND BENEFIT PLANS
MGS has no employees. With respect to its former employees, MGS
complied with Applicable Laws relating to employment, civil rights and
equal employment opportunities or other employment practices, and MGS has
received no notice of any claim before any governmental body brought by or
on behalf of any prospective employee, former employee, retiree, labor
organization or other representative of employees or any governmental body
or, to the knowledge of MGS is any such claim threatened against MGS .
MGS has paid in full to all of its former employees all wages, salaries,
commissions, bonuses, benefits and other compensation due and payable to
such employees.
SECTION 2.14 FINDERS' FEES
Neither MGS nor the Principal Stockholder has incurred, nor will it
incur, directly or indirectly, any liability for brokers' or finders' fees
or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PALMERA
Palmera hereby represents and warrants to MGS, Merger Sub and the
Principal Stockholder, as of the date of this Agreement and as of the
Effective Time (except as otherwise indicated), as follows:
SECTION 3.01 ORGANIZATION, STANDING AND POWER.
Palmera is a privately held corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida, and
has full corporate power and authority to conduct its business as
presently conducted by it and to enter into and perform this Agreement and
to carry out the transactions contemplated by this Agreement. Palmera is
duly qualified to do business as a foreign corporation in each state in
which the nature of the business conducted by it or the character or
location of the properties and assets owned or leased by it make such
qualification necessary. Palmera does not have any ownership interest in
any Person.
SECTION 3.02 CAPITALIZATION.
There are 20,000,000 shares of Palmera capital stock authorized,
consisting of 20,000,000 shares of common stock with $.001 par value (the
"Palmera Common Shares"). As of the date of this Agreement, there were
____________ issued and outstanding Palmera Common Shares. No Palmera
Common Shares have been reserved for issuance to any Person, and there are
no outstanding rights, warrants, options or agreements for the purchase of
Palmera Common Shares. Palmera does not intend to issue any such
derivative securities prior to the Closing, except for such derivative
securities as may be sold in connection with the sale of Palmera Common
Shares to investors pursuant to the private offering contemplated by
Section 5.01(e) of this Agreement. ("Palmera Offering."). No Person is
entitled to any rights with respect to the conversion, exchange or
delivery of the Palmera Common Shares. The Palmera Common Shares have
been issued in compliance with all Applicable Law.
SECTION 3.03 AUTHORITY FOR AGREEMENT.
The execution, delivery and performance of this Agreement by Palmera
has been duly authorized by all necessary corporate action, and this
Agreement constitutes the valid and binding obligation of Palmera,
enforceable against it in accordance with its terms, except as
enforceability may be affected by bankruptcy, insolvency or other laws of
general application affecting the enforcement of creditors' rights. The
execution and consummation of the transactions contemplated by this
Agreement and compliance with its provisions by Palmera will not violate
any provision of Applicable Law and will not conflict with or result in
any breach of any of the terms, conditions, or provisions of, or
constitute a default under, Palmera's Certificate of Incorporation or
Bylaws, in each case as amended, or, to the knowledge of Palmera, in any
material respect, any indenture, lease, loan agreement or other agreement
instrument to which Palmera is a party or by which it or any of its
properties are bound, or any decree, judgment, order, statute, rule or
regulation applicable to Palmera, except to the extent that any breach or
violation of any of the foregoing would not constitute or result in a
Material Adverse Effect on Palmera.
SECTION 3.04 PROPERTIES
(a) As of the date of this Agreement, the fair value of Palmera's
assets is $____________, and its aggregate liabilities do not exceed
$________________.
(b) The Intellectual Property License Agreement between The Xxxxx
Foundation and Palmera is in full force and effect, and neither party has
committed any breach of the said agreement.
(c) The Sublicense of Intellectual Property between Palmera and
Trinity is in full force and effect, and neither party has committed any
breach of the said agreement.
SECTION 3.05 ABSENCE OF CERTAIN CHANGES OR EVENTS. To the
knowledge of Palmera, since July 1, 2005:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of Palmera or (ii)
any damage, destruction, or loss to Palmera (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of Palmera;
(b) Except in connection with the spin-off of Trinity contemplated
by the Reorganization Agreement, Palmera has not (i) amended its Articles
of Incorporation or Bylaws; (ii) declared or made, or agreed to declare
or make, any payment of dividends or distributions of any assets of any
kind whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any outstanding capital stock; (iii) waived any rights
of value which in the aggregate are extraordinary or material considering
the business of Palmera; (iv) made any material change in its method of
management, operation, or accounting; (v) other than in the ordinary
course of business, entered into any other material transaction; (vi)
other than pursuant to any existing employment agreement with Palmera and
certain compensation accruals for Officers of the corporation, namely the
President and Treasurer/Secretary of the company, made any accrual or
arrangement for payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or
employee; (vii) other than pursuant to any existing employment agreement,
increased the rate of compensation payable or to become payable by it to
any of its officers or any of its employees; or (viii) other than pursuant
to any existing employment agreement with Palmera and certain compensation
accruals for Officers of the corporation, namely the President and
Treasurer/Secretary of the company, made any increase in any profit
sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit plan, payment, or arrangement made to, for, or with
its officers, directors, or employees;
(c) Palmera has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in the ordinary
course of business; (ii) sold or transferred, or agreed to sell or
transfer, any material assets, properties, or rights, or canceled, or
agreed to cancel, any material debts or claims; or (iv) made or permitted
any material amendment or termination of any contract, agreement, or
license to which it is a party;
(d) To its knowledge, Palmera has not become subject to any law
or regulation which has had or in the future is substantially likely to
have a Material Adverse Effect on Palmera.
SECTION 3.06 GOVERNMENTAL OR THIRD PARTY CONSENT
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with Palmera, is required by or
with respect to Palmera in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated
hereby, except for such consents, waivers, approvals, orders,
authorizations, registrations, declarations and filings as may be required
under (i) applicable securities laws, or (ii) the FBCA.
SECTION 3.07 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against or, to the knowledge of Palmera, threatened, against or affecting
Palmera or any of its material assets or properties before any court or
arbitrator or any governmental body, agency or official.
SECTION 3.08 INTERESTED PARTY TRANSACTIONS
Except as set forth in Schedule 3.08 attached hereto, Palmera is not
indebted to any officer or director of Palmera, and no such person is
indebted to Palmera, except as disclosed in Schedule 3.08 hereof.
SECTION 3.09 COMPLIANCE WITH APPLICABLE LAWS.
To the knowledge of Palmera, the business of Palmera has not been,
and is not being, conducted in violation of any Applicable Law.
SECTION 3.10 TAX RETURNS AND PAYMENT
Palmera has duly and timely filed all material Tax Returns required
to be filed by it and has duly and timely paid all Taxes shown thereon to
be due, except as reflected in the Palmera Financial Statements and except
for Taxes being contested in good faith. Subject to the foregoing, to the
knowledge of Palmera, except as disclosed in the Palmera Financial
Statements, there is no material claim for Taxes that is a Lien against
the property of Palmera other than Liens for Taxes not yet due and
payable, none of which is material. Palmera has not received written
notification of any audit of any Tax Return of Palmera being conducted or
pending by a Tax authority where an adverse determination could have a
Material Adverse Effect on Palmera, no extension or waiver of the statute
of limitations on the assessment of any Taxes has been granted by Palmera
which is currently in effect, and Palmera is not a party to any agreement,
contract or arrangement with any Tax authority or otherwise, which may
result in the payment of any material amount in excess of the amount
reflected on the Palmera Financial Statements.
SECTION 3.11 FINDERS' FEES
Palmera has not incurred, nor will it incur, directly or indirectly,
any liability for brokers' or finders' fees or agents' commissions or
investment bankers' fees or any similar charges in connection with this
Agreement, except that it has agreed to issue to its counsel certain
warrants to purchase common stock of MGS.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
SECTION 4.01 COVENANTS OF PALMERA
Palmera covenants and agrees that, during the period from the date
of this Agreement until the Closing Date, Palmera shall, except as
otherwise disclosed in this Agreement and other than as contemplated by
this Agreement or for the purposes of effecting the Merger and Closing
pursuant to this Agreement, conduct its business as presently operated and
solely in the ordinary course, and consistent with such operation, and, in
connection therewith, without the written consent of MGS:
(a) shall not amend its Articles of Incorporation or Bylaws;
(b) shall not sell, transfer, or otherwise dispose of
any material assets required for the operations of Palmera's
business, except for the transfer of certain material
technology to an affiliate of Palmera and except in the
ordinary course of business consistent with past practices;
(c) shall not create, incur, assume, or guarantee any
material indebtedness for money borrowed except in the
ordinary course of business, or create or suffer to exist any
mortgage, lien or other encumbrance on any of its material
assets, except those in existence on the date hereof or those
granted pursuant to agreements in effect on the date of this
Agreement or created for the benefit of MGS , the Merger Sub
or the Principal Stockholder;
(d) shall not declare or pay any dividends on or make
any distribution of any kind with respect to the Palmera
Shares; and
(e) shall use commercially reasonable efforts to
comply with and not be in default or violation under any known
law, regulation, decree or order applicable to Palmera's
business, operations or assets where such violation would have
a Material Adverse Effect on Palmera.
SECTION 4.02 COVENANTS OF MGS AND THE MGS PRINCIPAL STOCKHOLDER
Each of MGS and the MGS Principal Stockholder covenants and agrees
that, during the period from the date of this Agreement until the Closing
Date, MGS shall, other than as contemplated by this Agreement or for the
purposes of effecting the Merger and Closing pursuant to this Agreement,
conduct its business as presently operated and solely in the ordinary
course, and consistent with such operation, and, in connection therewith,
without the written consent of Palmera:
(a) shall not amend its Certificate of Incorporation or Bylaws;
(b) shall not pay or agree to pay to any employee, officer
or director compensation of any kind or amount;
(c) shall not merge or consolidate with any other entity or
acquire or agree to acquire any other entity;
(d) shall not create, incur, assume, or guarantee any material
indebtedness for money borrowed except in the
ordinary course of business, or create or suffer to exist any mortgage, lien
or other encumbrance on any of its material assets;
(e) shall not make any material capital expenditure or series of
capital expenditures except in the ordinary course of business;
(f) shall not declare or pay any dividends on or make any
distribution of any kind with respect to MGS;
(g) shall not issue any additional shares of MGS capital stock
or take any action affecting the capitalization of MGS or the MGS Shares; and
(h) shall not grant any severance or termination pay to any
director, officer or any other employees of MGS.
SECTION 4.03 COVENANTS OF THE PARTIES
(a) Tax-free Reorganization. The Parties intend that the Merger
qualify as a Tax-free "reorganization" under Sections 368(a) of the Code,
as amended, and the Parties will take the position for all purposes that
the Merger shall qualify as a reorganization under such Section. In
addition, the Parties covenant and agree that they will not engage in any
action, or fail to take any action, which action or failure to take action
would reasonably be expected to cause the Merger to fail to qualify as a
Tax-free "reorganization" under Section 368(a) of the Code, whether or not
otherwise permitted by the provisions of this Agreement;
(b) Announcement. Neither Palmera, on the one hand, nor MGS on
the other hand, shall issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other Party, except as may be
required by applicable law or securities regulation. Upon execution of
this Agreement, MGS shall issue a press release, which must be approved by
Palmera.
(c) Notification of Certain Matters. Palmera shall give prompt
written notice to MGS, and MGS shall give prompt written notice to
Palmera, of:
(i) The occurrence, or nonoccurrence, of any event the
occurrence, or nonoccurrence, of which would be reasonably likely to cause
any representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the Effective Time; and
(ii) Any material failure of Palmera on the one hand, or MGS
or the MGS Principal Stockholder, on the other hand, to comply with or
satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder.
(d) Reasonable Best Efforts. Before Closing, upon the terms and
subject to the conditions of this Agreement, the Parties agree to use
their respective reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper
or advisable (subject to applicable laws) to consummate and make effective
the Merger and other transactions contemplated by this Agreement as
promptly as practicable including, but not limited to:
(i) The preparation and filing of all forms, registrations
and notices required to be filed to consummate the Merger, including
without limitation, any approvals, consents, orders, exemptions or waivers
by any third party or governmental entity; and
(ii) The satisfaction of the Party's conditions precedent to
Closing.
(e) Access to Information
(i) Inspection by Palmera. MGS will make available for
inspection by Palmera, during normal business hours and in a manner so as
not to interfere with normal business operations, all of MGS's records
(including tax records), books of account, premises, contracts and all
other documents in MGS's possession or control that are reasonably
requested by Palmera to inspect and examine the business and affairs of
MGS. MGS will cause its managerial employees and regular independent
accountants to be available upon reasonable advance notice to answer
questions of Palmera concerning the business and affairs of MGS. Palmera
will treat and hold as confidential any information it receives from MGS
in the course of the reviews contemplated by this Section 4.03(e). No
examination by Palmera will, however, constitute a waiver or
relinquishment by Palmera of its rights to rely on MGS's or the MGS
Principal Stockholder's covenants, representations and warranties made
herein or pursuant hereto.
(ii) Inspection by MGS. Palmera will, if requested, make
available for inspection by MGS, during normal business hours and in a
manner so as not to interfere with normal business operations, all of
Palmera's records (including tax records), books of account, premises,
contracts and all other documents in Palmera's possession or control that
are reasonably requested by MGS to inspect and examine the business and
affairs of Palmera. Palmera will cause its managerial employees and
regular independent accountants to be available upon reasonable advance
notice to answer questions of MGS concerning the business and affairs of
Palmera. MGS will treat and hold as confidential any information they
receive from Palmera in the course of the reviews contemplated by this
Section 4.03(e). No examination by MGS will, however, constitute a waiver
or relinquishment by MGS of its rights to rely on Palmera's covenants,
representations and warranties made herein or pursuant hereto.
(f) Approval by MGS Principal Stockholder. By his execution and
delivery of this Agreement, the MGS Principal Stockholder does hereby
approve, adopt and ratify this Merger Agreement, the Merger and all of the
transactions contemplated hereby and pursuant to all exhibits hereto.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS.
The obligations of the Parties as provided herein shall be subject
to each of the following conditions precedent, unless waived in writing by
both MGS and Palmera:
(a) Consents, Approvals. The Parties shall have obtained all
necessary consents and approvals of their respective boards of directors,
and all consents, approvals and authorizations required under their
respective charter documents, and all material consents, including any
material consents and waivers by the Parties' respective lenders and other
third-parties, if necessary, to the consummation of the transactions
contemplated by this Agreement.
(b) Shareholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved by the shareholders of
Palmera and by the shareholder of Merger Sub in accordance with the
applicable provisions of the FBCA and their respective bylaws.
(c) Absence of Certain Litigation. No action or proceeding shall
be threatened or pending before any governmental entity or authority
which, in the reasonable opinion of counsel for the Parties, is likely to
result in a restraint, prohibition or the obtaining of damages or other
relief in connection with this Agreement or the consummation of the
Merger.
(d) Transaction with Principal Stockholder: Palmera and the
Principal Stockholder shall have completed certain transactions described
in a Stock Purchase Agreement dated December 9, 2006 between Palmera and
the Principal Shareholder providing for (i) the purchase from the
Principal Stockholder by Palmera of 50,000,000 MGS Common Shares for a
promissory note, (ii) the pledging of such Shares to the Principal
Stockholder to secure payment of the promissory note, and (iii) the
surrender by the Principal Stockholder to MGS of 3,256,635 MGS Common
Shares.
(e) Merger of Palmera Affiliate into MGS Subsidiary. MGS shall
have entered into an Agreement and Plan of Merger with Trinity providing
for the merger of Trinity and MGS's wholly owned subsidiary "MGS Trinity
Acquisition Corp" with Trinity as the surviving corporation in the merger
and the conversion of all outstanding shares of capital stock of Trinity
into 540,000,000 MGS Common Shares and
(f) Information Statement. No less than ten days shall have
passed after MGS shall have filed with the SEC and mailed to its
shareholders of record an information statement containing the information
required by Rule 14f-1 of the SEC.
SECTION 5.02 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF MGS AND THE MGS
PRINCIPAL STOCKHOLDER
The obligations of MGS and the MGS Principal Stockholder on the
Closing Date as provided herein shall be subject to the satisfaction, on
or prior to the Closing Date, of the following conditions precedent,
unless waived in writing by MGS or the MGS Principal Stockholder:
(a) Consents And Approvals. Palmera shall have obtained all
material consents, including any material consents and waivers by
Palmera's lenders and other third-parties, if necessary, to the
consummation of the transactions contemplated by this Agreement.
(b) Representations and Warranties. The representations and
warranties by Palmera in Article III herein shall be true and accurate in
all material respects on and as of the Closing Date with the same force
and effect as though such representations and warranties had been made at
and as of the Closing Date, except to the extent that any changes therein
are specifically contemplated by this Agreement.
(c) Performance. Palmera shall have performed and complied in all
material respects with all agreements to be performed or complied with by
it pursuant to this Agreement at or prior to the Closing.
(d) Proceedings and Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to MGS and its
counsel, and MGS and its counsel shall have received all such counterpart
originals (or certified or other copies) of such documents as they may
reasonably request.
(e) Certificate of Good Standing. Palmera shall have delivered to
MGS a certificate as to the good standing of Palmera certified by the
Secretary of State of the State of Florida on or within fourteen (14)
business days prior to the Closing Date.
(f) Material Changes. Except as contemplated by this Agreement,
since the date hereof, Palmera shall not have suffered a Material Adverse
Effect, and, without limiting the generality of the foregoing, there shall
be no pending litigation to which Palmera is a party which is reasonably
likely to have a Material Adverse Effect on Palmera;
(g) Due Diligence. MGS shall have completed to its own
satisfaction due diligence in relation to Palmera;
(h) SEC Filing. No less than one week prior to the Closing,
Palmera shall have delivered to MGS the financial statements, report of
Palmera's independent public accountant, and other information required
for inclusion in the Current Report that MGS will file with the Securities
and Exchange Commission within four business days after the Closing;
(i) Assignment of Certain Assets to Principal Stockholder. MGS
shall have assigned to the Principal Stockholder all of MGS's right, title
and interest in the name "Maui General Store" (except that MGS shall
retain the right to use same as its corporate name until the name is
formally changed).
SECTION 5.03 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PALMERA
The obligations of Palmera on the Closing Date as provided herein
shall be subject to the satisfaction, on or prior to the Closing Date, of
the following conditions precedent, unless waived in writing by Palmera:
(a) Consents And Approvals. MGS and Merger Sub shall have
obtained all material consents, including any material consents and
waivers of its respective lenders and other third parties, if necessary,
to the consummation of the transactions contemplated by this Agreement.
(b) Representations And Warranties. The representations and
warranties by MGS, the MGS Principal Stockholder and Merger Sub in Article
II herein shall be true and accurate in all material respects on and as of
the Closing Date with the same force and effect as though such
representations and warranties had been made at and as of the Closing
Date, except to the extent that any changes therein are specifically
contemplated by this Agreement.
(c) Performance. MGS, the MGS Principal Stockholder and Merger
Sub shall have performed and complied in all material respects with all
agreements to be performed or complied with by it pursuant to this
Agreement prior to or at the Closing.
(d) Proceedings And Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to Palmera and its
counsel, and Palmera and its counsel shall have received all such
counterpart originals (or certified or other copies) of such documents as
they may reasonably request.
(e) Certificates of Good Standing. MGS shall have delivered to
Palmera a certificate as to its good standing in the State of New York,
and the Merger Sub shall have delivered to Palmera a certificate as to its
good standing in the State of Florida, in each case certified by the
Secretary of State not more than fourteen (14) business days prior to the
Closing Date.
(f) Material Changes. Except as contemplated by this Agreement,
since the date hereof, neither MGS nor Merger Sub shall have suffered a
Material Adverse Effect and, without limiting the generality of the
foregoing, there shall be no pending litigation to which MGS or the Merger
Sub is a party which is reasonably likely to have a Material Adverse
Effect on MGS or the Merger Sub;
(g) Due Diligence. Palmera shall have completed to its own
satisfaction due diligence in relation to MGS;
(h) Status of MGS. As at the Effective Time of the Merger, MGS
(i) shall be a fully compliant reporting public company under the Exchange
Act, and shall be current in all of its reports required to be filed under
the Exchange Act, (ii) shall not have been threatened or subject to
delisting from the OTC Bulletin Board, (iii) shall have outstanding no
greater than $10,000 in liabilities and obligations of a nature that would
be required to be set forth on a balance sheet prepared in accordance with
GAAP, (iv) shall have no contingent liabilities or obligations; and (v)
shall have 140,000,000 MGS Common Shares outstanding (including 50,000,000
shares owned by Palmera).
(i) MGS Board of Directors. Effective at the Effective Time of
the Merger, the board of directors of MGS shall have enlarged the board to
a number designated by Palmera and shall have appointed to the vacancies
persons designated by the board of directors of Palmera, and all of the
officers and directors of MGS now serving shall have tendered their
resignations as officers and directors of MGS.
(j) Waivers by Principal Stockholder. The Principal Stockholder
shall have waived his claim to all amounts owed to him by MGS, and shall
have released MGS from liability for all amounts owed to him, known or
unknown, contingent or fixed.
ARTICLE VI
TERMINATION
SECTION 6.01 TERMINATION.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time by:
(a) Either MGS, on the one hand, or Palmera, on the other hand, if
any governmental entity or court of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the Parties shall use their commercially
reasonable best efforts to lift), which restrains, enjoins or otherwise
prohibits the Merger or the issuance of the Merger Shares pursuant to the
Merger and such order, decree, ruling or other action shall have become
final and non-appealable;
(b) MGS, if Palmera shall have breached in any material respect
any of its representations, warranties, covenants or other agreements
contained in this Agreement, and the breach cannot be or has not been
cured within thirty (30) calendar days after the giving of written notice
by MGS to Palmera;
(c) Palmera, if MGS shall have breached in any material respect
any of its representations, warranties, covenants or other agreements
contained in this Agreement, and the breach cannot be or has not been
cured within thirty (30) calendar days after the giving of written notice
by Palmera to MGS; or
(d) Without any action on the part of the Parties if required by
Applicable Law or if the Merger shall not be consummated by January 23,
2006.
SECTION 6.02 EFFECT OF TERMINATION.
If this Agreement is terminated as provided in Section 6.01, written
notice of such termination shall be given by the terminating Party to the
other Party specifying the provision of this Agreement pursuant to which
such termination is made, this Agreement shall become null and void and
there shall be no liability on the part of MGS or Palmera, provided,
however, that (a) the provisions of Article VII hereof shall survive the
termination of this Agreement; (b) the amount paid to MGS for transaction
expenses shall be repaid to Palmera if MGS terminates this Agreement
without cause; (c) nothing in this Agreement shall relieve any Party from
any liability or obligation with respect to any willful breach of this
Agreement; and (d) termination shall not affect accrued rights or
liabilities of any party at the time of such termination.
ARTICLE VII
CONFIDENTIALITY
SECTION 7.01 CONFIDENTIALITY
MGS, on the one hand, and Palmera, on the other hand, will keep
confidential all information and documents obtained from the other,
including but not limited to any information or documents provided
pursuant to Section 4.03(e) hereof, which are designated by such Party as
confidential (except for any information disclosed to the public pursuant
to a press release authorized by the Parties); and in the event the
Closing does not occur or this Agreement is terminated for any reason,
will promptly return such documents and all copies of such documents and
all notes and other evidence thereof, including material stored on a
computer, and will not use such information for its own advantage, except
to the extent that (i) the information must be disclosed by law, (ii) the
information becomes publicly available by reason other than disclosure by
the Party subject to the confidentiality obligation, (iii) the information
is independently developed without use of or reference to the other
Party's confidential information, (iv) the information is obtained from
another source not obligated to keep such information confidential, or (v)
the information is already publicly known or known to the receiving Party
when disclosed as demonstrated by written documentation in the possession
of such Party at such time.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 INDEMNIFICATION BY MGS
MGS and the MGS Principal Stockholder shall, jointly and severally,
indemnify, defend and hold harmless each of Palmera, any subsidiary or
affiliate thereof and each person who is now, or has been at any time
prior to the date hereof or who becomes prior to the Closing, an officer,
director or partner of Palmera, any subsidiary or affiliate thereof or an
employee of Palmera, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the
"Palmera Indemnified Parties") against all losses, claims, damages, costs,
expenses (including reasonable attorneys' fees), liabilities or judgments
or amounts that are paid in settlement of or in connection with any
threatened or actual third party claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part
out of (i) any material breach of this Agreement by the Principal
Stockholder, MGS or any subsidiary or affiliate thereof, including but not
limited to failure of any representation or warranty to be true and
correct at or before the Closing, (ii) any willful or grossly negligent
act, omission or conduct of any officer, director or agent of MGS or any
subsidiary or affiliate thereof prior to the Closing, whether asserted or
claimed prior to, at or after, the Closing, or (iii) relating to the
consummation of the transactions contemplated herein, and any action taken
in connection therewith. Any Palmera Indemnified Party wishing to claim
indemnification under this Section 8.01, upon learning of any such claim,
action, suit, proceeding or investigation, shall notify MGS in writing,
but the failure to so notify shall not relieve MGS from any liability that
it may have under this Section 8.01, except to the extent that such
failure would materially prejudice MGS.
SECTION 8.02 INDEMNIFICATION BY PALMERA
Palmera shall indemnify, defend and hold harmless each of MGS, any
subsidiary or affiliate thereof and each person who is now, or has been at
any time prior to the date hereof or who becomes prior to the Closing, an
officer, director or partner of MGS, any subsidiary or affiliate thereof
or an employee of MGS, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the "MGS
Indemnified Parties") against all losses, claims, damages, costs, expenses
(including reasonable attorneys' fees), liabilities or judgments or
amounts that are paid in settlement of or in connection with any
threatened or actual third party claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part
out of (i) any material breach of this Agreement by Palmera or any
subsidiary or affiliate thereof, including but not limited to failure of
any representation or warranty to be true and correct at or before the
Closing, (ii) any willful or negligent act, omission or conduct of any
officer, director or agent of Palmera or any subsidiary or affiliate
thereof prior to the Closing, whether asserted or claimed prior to, at or
after, the Closing, or (iii) relating to the consummation of the
transactions contemplated herein, and any action taken in connection
therewith. Any MGS Indemnified Party wishing to claim indemnification
under this Section 8.02, upon learning of any such claim, action, suit,
proceeding or investigation, shall notify Palmera in writing, but the
failure to so notify shall not relieve Palmera from any liability that it
may have under this Section 8.02, except to the extent that such failure
would materially prejudice Palmera.
SECTION 8.03 INDEMNIFICATION OF EXCHANGE AGENT
(a) MGS, Palmera and Merger Sub (for the purposes of this Section
8.03, the "Indemnitors") agree to indemnify the Exchange Agent ( the
"Indemnitee") against, and hold him harmless of and from, any and all
loss, liability, cost, damage and expense, including without limitation,
reasonable counsel fees, which the Indemnitee may suffer or incur by
reason of any action, claim or proceeding brought against the Indemnitee
arising out of or relating in any way to the Exchange Agent's service in
such capacity, unless such action, claim or proceeding is the result of
the willful misconduct or gross negligence of the Indemnitee.
(b) If the indemnification provided for in Section 8.03(a) is
applicable, but for any reason is held to be unavailable, the Indemnitors
shall jointly and severally contribute such amounts as are just and
equitable to pay, or to reimburse the Indemnitee for, the aggregate of any
and all losses, liabilities, costs, damages and expenses, including
counsel fees, actually incurred by the Indemnitee as a result of or in
connection with, and any amount paid in settlement of, any action, claim
or proceeding arising out of or relating in any way to any actions or
omissions of the Indemnitors.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 EXPENSES.
Except as contemplated by this Agreement, all costs and expenses
incurred in connection with this Agreement and the consummation of the
transactions contemplated by this Agreement shall be paid by the Party
incurring such expenses. The foregoing notwithstanding, Palmera shall,
upon the execution of this Agreement, pay the sum of Twenty-Five Thousand
Dollars ($25,000.00) to MGS to cover legal fees and other expenses it
incurs in completing the transactions contemplated by this Agreement.
SECTION 9.02 APPLICABLE LAW
This Agreement shall be governed by the laws of the State of
Florida, without giving effect to the principles of conflicts of laws
thereof, as applied to agreements entered into and to be performed in such
state.
SECTION 9.03 NOTICES.
All notices and other communications under this Agreement shall be
in writing and shall be deemed to have been duly given or made as follows:
(a) If sent by reputable overnight air courier (such as Federal
Express), 2 business days after being sent;
(b) If sent by facsimile transmission, with a copy delivered in
the manner provided in clauses (a) or (c) , when transmitted and receipt
is confirmed by the fax machine; or
(c) If otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be
sent or delivered as follows:
If to Palmera, to:
M. Xxxxx Xxxxx, III
President
19321 US Highway 00 Xxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 727-535-9600
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to MGS and/or the Principal Stockholder, to:
Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxx. Xxxx, Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxx, Esq.
0000 Xx. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Each Party may change its address by written notice in accordance
with this Section.
SECTION 9.04 ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned by any of the Parties
(whether by operation of law or otherwise) without the prior written
consent of the other Parties; provided that in no event may the right to
indemnification provided by Article VIII hereto be assigned by any of the
Parties, with or without consent, except by operation of law. Subject to
the immediately foregoing sentence of this Section 9.04, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the
Parties and their respective heirs, legal representatives, successors and
assigns.
SECTION 9.05 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which shall be
considered one and the same agreement.
SECTION 9.06 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided by this Agreement, nothing herein is
intended to confer upon any person or entity not a Party to this Agreement
any rights or remedies under or by reason of this Agreement.
SECTION 9.07 RULES OF CONSTRUCTION.
The Parties agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
MAUI GENERAL STORE, INC.
By:
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
MGS ACQUISITION CORP.
By:
Name: Xxxxxxx Xxxxxx
Title: President
MGS PRINCIPAL STOCKHOLDER
_____________________________________
XXXXXXX XXXXXX
PALMERA HOLDINGS, INC.
By:
Name: Xx. Xxxxxxxx StoweI
Title: Chairman
SCHEDULES AND EXHIBITS:
Exhibit A - Certificate of Merger
Schedule 3.08 Interested Party Transactions
APPENDIX B
AGREEMENT AND PLAN OF MERGER
by and among
Maui General Store, Inc.
MGS Trinity Acquisition Corp.
and
Trinity Biogenics, Inc.
Dated as of January 11, 2006
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger dated as of January 11, 2006 (the
"Agreement") by and among Maui General Store, Inc., a corporation formed
under the laws of the State of New York ("MGS"), MGS Trinity Acquisition
Corp., a corporation newly formed under the laws of the State of Florida
and a wholly owned subsidiary of MGS (the "Merger Sub"), Trinity
Biogenics, Inc., a corporation formed under the laws of the State of
Florida ("Trinity") and Xxxxxxx Xxxxxx, the principal shareholder of MGS
(the "Principal Stockholder"). MGS, the Merger Sub, Trinity and the
Principal Stockholder are referred to herein individually as a "Party" and
collectively as the "Parties."
PREAMBLE
WHEREAS, Trinity has been organized pursuant to the terms of a
Reorganization Agreement among MGS, the Principal Stockholder, Palmera
(defined below) and the shareholders of Palmera; and
WHEREAS, in order to implement the Reorganization Agreement, MGS
will acquire Trinity pursuant to a merger transaction whereby, pursuant
to the terms and subject to the conditions of this Agreement, Trinity
shall become a wholly owned subsidiary of MGS through the merger of
Trinity with and into the Merger Sub (the "Merger");
WHEREAS, in the Merger all issued and outstanding shares of capital
stock of Trinity held by the stockholders of Trinity (the "Trinity
Stockholders") shall be cancelled and converted into the right to receive
540,000,000 pre-split shares of common stock of MGS, $0.001 par value per
share (the "Merger Shares"), which shares, combined with the shares
acquired by the Trinity Stockholders as a result of the Palmera Merger,
will represent 90.90% of the issued and outstanding common stock of MGS
after the Merger; and
WHEREAS, MGS, Trinity and the Merger Sub intend that the Merger
qualify asa "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the parties
intend this Agreement to qualify as a "plan of reorganization" within the
meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations and warranties contained herein, the Parties,
intending to be legally bound, hereby agree as follows:
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings set forth below:
"Applicable Law" means any domestic or foreign law, statute, regulation,
rule, policy, guideline or ordinance applicable to the businesses of the
Parties, the Merger and/or the Parties.
"FBCA" means the Florida Business Corporation Act.
"GAAP" means generally accepted accounting principles in the United States
of America as promulgated by the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board or any successor
institutes concerning the treatment of any accounting matter.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, claim, encumbrance, royalty interest,
any other adverse claim of any kind in respect of such property or asset,
or any other restrictions or limitations of any nature whatsoever.
"Material Adverse Effect" with respect to any entity or group of entities
means any event, change or effect that has or would have a materially
adverse effect on the financial condition, business or results of
operations of such entity or group of entities, taken as a whole.
"Palmera" means Palmera Holdings, Inc., a Florida corporation.
"Person" means any individual, corporation, partnership, trust or
unincorporated organization or a government or any agency or political
subdivision thereof.
"Reorganization Agreement" shall mean the agreement of that name dated of
even date herewith and signed by MGS, the Principal Stockholder, Palmera
and the Palmera Stockholders.
"Surviving Entity" shall mean Trinity as the surviving entity in the
Merger as provided in Section 1.03.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means:
(i) any income, alternative or add-on minimum tax, gross receipts
tax, sales tax, use tax, ad valorem tax, transfer tax, franchise tax,
profits tax, license tax, withholding tax, payroll tax, employment tax,
excise tax, severance tax, stamp tax, occupation tax, property tax,
environmental or windfall profit tax, custom, duty or other tax, impost,
levy, governmental fee or other like assessment or charge of any kind
whatsoever together with any interest or any penalty, addition to tax or
additional amount imposed with respect thereto by any governmental or Tax
authority responsible for the imposition of any such tax (domestic or
foreign), and
(ii) any liability for the payment of any amounts of the type
described in clause (i) above as a result of being a member of an
affiliated, consolidated, combined or unitary group for any Taxable
period, and
(iii) any liability for the payment of any amounts of the type
described in clauses (i) or (ii) above as a result of any express or
implied obligation to indemnify any other person.
"Tax Return" means any return, declaration, form, claim for refund or
information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER.
Upon the terms and subject to the conditions set forth in this
Agreement and in accordance with the FBCA, at the Effective Time (as
hereinafter defined), all Trinity Shares (as hereinafter defined) shall be
cancelled and converted into the right to receive the Merger Shares. In
connection therewith, the following terms shall apply:
(a) Exchange Agent. Xxxxxx Xxxxxx, Esq., counsel for Trinity,
shall act as the exchange agent (the "Exchange Agent") for the purpose of
exchanging Trinity Shares for the Merger Shares. At or prior to the
Closing, MGS shall deliver to the Exchange Agent certificates for the
Merger Shares.
(b) Conversion of Securities.
(i) Conversion of Trinity Securities. At the Effective
Time, by virtue of the Merger and without any action on the part of MGS,
Trinity or the Merger Sub, or the holders of any of their respective
securities:
(A) Each of the issued and outstanding shares of
common stock of Trinity (the "Trinity Shares") immediately prior to the
Effective Time shall be converted into and represent the right to receive,
and shall be exchangeable for, that number of Merger Shares as shall be
determined by dividing 540,000,000 by the number of then issued and
outstanding Trinity Shares (the "Trinity Conversion Rate"). The Trinity
Conversion Rate shall be subject to equitable adjustment in the event of
any split or consolidation of the outstanding shares of MGS prior to the
Effective Time.
(B) Each warrant, option or security convertible
into common stock of Trinity shall be converted into and represent the right
to receive that number of shares of MGS common stock as would have been
received pursuant to Section 1.01(b)(A) by the holder of the number of Trinity
Shares for which the warrant option or convertible security may be exchanged.
(C) All Trinity Shares shall no longer be
outstanding and shall automatically be canceled and retired and shall cease
to exist, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive the
Merger Shares to be issued pursuant to this Section 1.01(b)(i) upon the surren-
der of such certificate in accordance with Section 1.07, without interest.
No fractional shares may be issued; but each fractional share that would
result from the Merger will be rounded to the nearest whole number of shares.
(ii) Conversion of Merger Sub Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of Trinity,
MGS, the Merger Sub, or the holders of any of their respective securities,
each share of capital stock of Merger Sub outstanding immediately prior to
the Effective Time shall be converted into one share of the common stock
of the Surviving Entity and the shares of common stock of the Surviving
Entity so issued in such conversion shall constitute the only outstanding
shares of capital stock of the Surviving Entity and the Surviving Entity
shall be a wholly owned subsidiary of MGS.
SECTION 1.02 CLOSING.
The closing of the Merger (the "Closing") will take place at the
offices of Xxxxxx Xxxxxx, Esq. within one (1) business day following the
satisfaction or waiver of the conditions precedent set forth in Article V
or at such other date as MGS and Trinity shall agree (the "Closing Date"),
but in any event no later than December 31, 2006.
SECTION 1.03 MERGER; EFFECTIVE TIME.
At the Effective Time and subject to and upon the terms and
conditions of this Agreement, Merger Sub shall, and MGS shall cause Merger
Sub to, merge with and into Trinity in accordance with the provisions of
the FBCA, the separate corporate existence of Merger Sub shall cease and
Trinity shall continue as the Surviving Entity. The Effective Time shall
occur upon the filing with the Secretary of State of the State of Florida
of a Certificate of Merger (the "Certificate of Merger") substantially in
the form of Exhibit A attached hereto and executed in accordance with the
applicable provisions of the FBCA (the "Effective Time"). The date on
which the Effective Time occurs is referred to as the "Effective Date."
Provided that this Agreement has not been terminated pursuant to Article
VI, the Parties will cause the Certificate of Merger to be filed as soon
as practicable after the Closing.
SECTION 1.04 EFFECT OF THE MERGER.
The Merger shall have the effect set forth in Section 607.11101 of
the FBCA. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the properties, rights, privileges,
powers and franchises of Trinity and Merger Sub shall vest in the
Surviving Entity, and all debts, liabilities and duties of Trinity and
Merger Sub shall become the debts, liabilities and duties of the Surviving
Entity.
SECTION 1.05 ARTICLES OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS.
Pursuant to the Merger:
(a) The Articles of Incorporation and Bylaws of Trinity as in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation and Bylaws of the Surviving Entity immediately following the
Merger.
(b) The directors and officers of Trinity immediately prior to the
Merger shall be the directors and officers of the Surviving Entity
subsequent to the Merger.
SECTION 1.06 RESTRICTIONS ON RESALE
(a) The Merger Shares. The Merger Shares will not be registered
under the Securities Act, or the securities laws of any state, and cannot
be transferred, hypothecated, sold or otherwise disposed of until: (i) a
registration statement with respect to such securities is declared
effective under the Securities Act, or (ii) MGS receives an opinion of
counsel for the stockholders, reasonably satisfactory to counsel for MGS,
that an exemption from the registration requirements of the Securities Act
is available.
The certificates representing the Merger Shares which are being
issued to the Trinity Stockholders shall contain a legend substantially as
follows:
"THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR MAUI
GENERAL STORE, INC. RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR MAUI GENERAL
STORE, INC. THAT AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT IS AVAILABLE."
SECTION 1.07 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE OF CERTIFICATES. After the Effective Time and
pursuant to a customary letter of transmittal or other instructional form
provided by the Exchange Agent to the Trinity Stockholders, the Trinity
Stockholders shall be required to surrender all their Trinity Shares to
the Exchange Agent, and the Trinity Stockholders shall be entitled upon
such surrender to receive in exchange therefor certificates representing
the proportionate number of Merger Shares into which the Trinity Shares
theretofore represented by the stock transfer forms so surrendered shall
have been exchanged pursuant to this Agreement. Until so surrendered,
each outstanding certificate which, prior to the Effective Time,
represented Trinity Shares shall be deemed for all corporate purposes,
subject to the further provisions of this Article I, to evidence the
ownership of the number of whole Merger Shares for which such Trinity
Shares have been so exchanged. No dividend payable to holders of Merger
Shares of record as of any date subsequent to the Effective Time shall be
paid to the owner of any certificate which, prior to the Effective Time,
represented Trinity Shares, until such certificate or certificates
representing all the relevant Trinity Shares, together with a stock
transfer form, are surrendered as provided in this Article I or pursuant
to letters of transmittal or other instructions with respect to lost
certificates provided by the Exchange Agent.
(b) FULL SATISFACTION OF RIGHTS. All Merger Shares for which the
Trinity Shares shall have been exchanged pursuant to this Article I shall
be deemed to have been issued in full satisfaction of all rights
pertaining to the Trinity Shares.
(c) EXCHANGE OF CERTIFICATES. All certificates representing
Trinity Shares converted into the right to receive Merger Shares pursuant
to this Article I shall be furnished to MGS subsequent to delivery thereof
to the Exchange Agent pursuant to this Agreement.
(d) CLOSING OF TRANSFER BOOKS. On the Effective Date, the stock
transfer book of Trinity shall be deemed to be closed and no transfer of
Trinity Shares shall thereafter be recorded thereon.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MGS
AND THE MGS PRINCIPAL STOCKHOLDER
MGS and the MGS Principal Stockholder, and, where applicable, the
Merger Sub, hereby jointly and severally represent and warrant to Trinity,
as of the date of this Agreement, as follows:
SECTION 2.01 ORGANIZATION, STANDING AND POWER.
MGS is a company duly incorporated, validly existing and in good
standing under the laws of the State of New York and has corporate power
and authority to conduct its business as presently conducted by it and to
enter into and perform this Agreement and to carry out the transactions
contemplated by this Agreement. Merger Sub is a company duly
incorporated, validly existing and in good standing under the laws of the
State of Florida and has corporate power and authority to enter into and
perform this Agreement and to carry out the transactions contemplated by
this Agreement. MGS has not engaged in any business activities since June
2005 other than negotiation of potential acquisitions, and has no material
property or assets. Other than its ownership of the Merger Sub, MGS does
not have an ownership interest in any Person. Merger Sub is a recently
formed corporation and prior to the date hereof , Merger Sub has not
conducted any operating business, become a party to any agreements, or
incur any liabilities or obligations.
SECTION 2.02 CAPITALIZATION.
(a) There are 500,000,000 shares of capital stock of MGS
authorized, consisting of 500,000,000 shares of common stock, $0.001 par
value per share (the "MGS Common Shares"). As of the date of this
Agreement, there are 143,256,635 MGS Common Shares issued and outstanding.
(b) The MGS Principal Stockholder owns of record and beneficially
115,925,305 MGS Common Shares. No MGS Common Shares have been reserved for
issuance to any Person, and there are no other outstanding rights,
warrants, options or agreements for the purchase of MGS Common Shares
except as provided in this Agreement.
(c) All outstanding MGS Common Shares are validly issued, fully
paid, non-assessable, not subject to pre-emptive rights and have been
issued in compliance with all state and federal securities laws or other
Applicable Law. The Merger Shares issuable to the Trinity Stockholders
will, when issued pursuant to this Agreement, be duly and validly
authorized and issued, fully paid and non-assessable.
SECTION 2.03 AUTHORITY FOR AGREEMENT.
The execution, delivery, and performance of this Agreement by each
of MGS and Merger Sub has been duly authorized by all necessary corporate
and shareholder action, and this Agreement, upon its execution by the
Parties, will constitute the valid and binding obligation of each of MGS
and Merger Sub enforceable against each of them in accordance with and
subject to its terms, except as enforceability may be affected by
bankruptcy, insolvency or other laws of general application affecting the
enforcement of creditors' rights. The execution and consummation of the
transactions contemplated by this Agreement and compliance with its
provisions by MGS and Merger Sub will not violate any provision of
Applicable Law and will not conflict with or result in any breach of any
of the terms, conditions, or provisions of, or constitute a default under,
MGS's Certificate of Incorporation, Merger Sub's Certificate of
Incorporation, or any of their Bylaws, in each case as amended, or, in any
material respect, any indenture, lease, loan agreement or other agreement
or instrument to which MGS is a party or by which it or any of its
properties are bound, or any decree, judgment, order, statute, rule or
regulation applicable to MGS or Merger Sub.
SECTION 2.04 FINANCIAL STATEMENTS.
(a) MGS has made available to Trinity copies of its audited
consolidated financial statements at December 31, 2004 and 2003 for the
fiscal years then ended, as well as its unaudited consolidated financial
statements for the fiscal period ending September 30, 2005 (collectively,
"MGS Financial Statements").
(b) Each set of consolidated financial statements (including, in
each case, any related notes thereto) contained in the MGS Financial
Statements was prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the
notes thereto). Such financial statements fairly present the consolidated
financial position of MGS as at the dates thereof and the consolidated
results of its operations and its consolidated cash flows for the periods
then ended.
(c) As at the date of this Agreement, the aggregate
liabilities of MGS which would be required to be disclosed on a balance
sheet prepared in accordance with GAAP do not and will not exceed $10,000.
SECTION 2.05 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 2005:
(a) There has not been any material adverse change in the
business, operations, properties, assets, or financial condition of MGS;
(b) MGS has not (i) amended its Certificate of Incorporation;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem,
any outstanding capital stock; (iii) made any material change in its
method of management, operation, or accounting; (iv) entered into any
material transaction (other than the assignment of certain claims to the
Principal Stockholder in exchange for his waiver of certain debts); or (v)
made any accrual or arrangement for payment of bonuses or special
compensation of any kind or any severance or termination pay to any
present or former officer or employee.
SECTION 2.06 GOVERNMENTAL AND THIRD PARTY CONSENTS
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with MGS or Merger Sub, is
required by or with respect to MGS or Merger Sub in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings
as may be required under (i) applicable securities laws, or (ii) the FCBA.
SECTION 2.07 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against, or to the best knowledge of MGS threatened against or affecting,
MGS or any of its assets or properties before any court or arbitrator or
any governmental body, agency or official.
SECTION 2.8 INTERESTED PARTY TRANSACTIONS
Except for debts to Xxxxxxx Xxxxxx which are disclosed on the MGS
Financial Statements, which will be satisfied prior to the Effective Time,
MGS is not indebted to any officer or director of MGS, and no such person
is indebted to MGS.
SECTION 2.9 COMPLIANCE WITH APPLICABLE LAWS.
To the knowledge of MGS, the business of each of MGS and Merger Sub
has not been, and is not being, conducted in violation of any Applicable
Law.
SECTION 2.10 TAX RETURNS AND PAYMENT
MGS has duly and timely filed all material Tax Returns required to
be filed by it and has duly and timely paid all Taxes shown thereon to be
due. There is no material claim for Taxes that is a Lien against the
property of MGS. MGS has not received written notification of any audit
of any Tax Return of MGS being conducted or pending by a Tax authority
where an adverse determination could have a Material Adverse Effect on
MGS, no extension or waiver of the statute of limitations on the
assessment of any Taxes has been granted by MGS which is currently in
effect, and MGS is not a party to any agreement, contract or arrangement
with any Tax authority or otherwise, which may result in the payment of
any amount in excess of the amount reflected on the MGS Financial
Statements.
SECTION 2.11 MGS PUBLIC FILINGS
MGS is a fully compliant reporting company under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and all MGS public
filings required under the Exchange Act have been made. All public
filings by MGS under the Exchange Act are true, correct and complete in
all material respects, are not misleading and do not omit to state any
material fact which is necessary to make the statements contained in such
public filings not misleading in any material respect. To the knowledge
of MGS, MGS has not been threatened or is not subject to removal of its
common stock from the OTC Bulletin Board.
SECTION 2.12 MGS AGREEMENTS
MGS is not a party to any material agreements.
SECTION 2.13 EMPLOYEES AND BENEFIT PLANS
MGS has no employees. With respect to its former employees, MGS
complied with Applicable Laws relating to employment, civil rights and
equal employment opportunities or other employment practices, and MGS has
received no notice of any claim before any governmental body brought by or
on behalf of any prospective employee, former employee, retiree, labor
organization or other representative of employees or any governmental body
or, to the knowledge of MGS is any such claim threatened against MGS .
MGS has paid in full to all of its former employees all wages, salaries,
commissions, bonuses, benefits and other compensation due and payable to
such employees.
SECTION 2.14 FINDERS' FEES
Neither MGS nor the Principal Stockholder has incurred, nor will it
incur, directly or indirectly, any liability for brokers' or finders' fees
or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRINITY
Trinity hereby represents and warrants to MGS, Merger Sub and the
Principal Stockholder, as of the date of this Agreement and as of the
Effective Time (except as otherwise indicated), as follows:
SECTION 3.01 ORGANIZATION, STANDING AND POWER.
Trinity is a privately held corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida, and
has full corporate power and authority to conduct its business as
presently conducted by it and to enter into and perform this Agreement and
to carry out the transactions contemplated by this Agreement. Trinity is
duly qualified to do business as a foreign corporation in each state in
which the nature of the business conducted by it or the character or
location of the properties and assets owned or leased by it make such
qualification necessary. Trinity does not have any ownership interest in
any Person.
SECTION 3.02 CAPITALIZATION.
There are 20,000,000 shares of Trinity capital stock authorized,
consisting of 20,000,000 shares of common stock with $.001 par value (the
"Trinity Common Shares"). As of the date of this Agreement, there were
_____________ issued and outstanding Trinity Common Shares. No Trinity
Common Shares have been reserved for issuance to any Person, and there are
no outstanding rights, warrants, options or agreements for the purchase of
Trinity Common Shares. Trinity does not intend to issue any such
derivative securities prior to the Closing. No Person is entitled to any
rights with respect to the conversion, exchange or delivery of the Trinity
Common Shares. The Trinity Common Shares have been issued in compliance
with all Applicable Law.
SECTION 3.03 AUTHORITY FOR AGREEMENT.
The execution, delivery and performance of this Agreement by Trinity
has been duly authorized by all necessary corporate action, and this
Agreement constitutes the valid and binding obligation of Trinity,
enforceable against it in accordance with its terms, except as
enforceability may be affected by bankruptcy, insolvency or other laws of
general application affecting the enforcement of creditors' rights. The
execution and consummation of the transactions contemplated by this
Agreement and compliance with its provisions by Trinity will not violate
any provision of Applicable Law and will not conflict with or result in
any breach of any of the terms, conditions, or provisions of, or
constitute a default under, Trinity's Certificate of Incorporation or
Bylaws, in each case as amended, or, to the knowledge of Trinity, in any
material respect, any indenture, lease, loan agreement or other agreement
instrument to which Trinity is a party or by which it or any of its
properties are bound, or any decree, judgment, order, statute, rule or
regulation applicable to Trinity, except to the extent that any breach or
violation of any of the foregoing would not constitute or result in a
Material Adverse Effect on Trinity.
SECTION 3.04 FINANCIAL CONDITION
(a) As of the date of this Agreement, the fair value of Trinity's
assets is $____________, and its aggregate liabilities do not exceed
$________________.
(b) The Intellectual Property License Agreement assigned by
Palmera to Trinity licensing to Palmera rights to certain technology
developed by The Xxxxx Foundation is in full force and effect, and neither
party has committed any breach of the said agreement.
SECTION 3.05 ABSENCE OF CERTAIN CHANGES OR EVENTS. To the knowledge of
Trinity, since the date of its formation:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of Trinity or (ii)
any damage, destruction, or loss to Trinity (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of Trinity;
(b) Trinity has not (i) amended its Articles of Incorporation or
Bylaws; (ii) declared or made, or agreed to declare or make, any payment
of dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem,
any outstanding capital stock; (iii) waived any rights of value which in
the aggregate are extraordinary or material considering the business of
Trinity; (iv) made any material change in its method of management,
operation, or accounting; (v) other than in the ordinary course of
business, entered into any other material transaction; (vi) other than
pursuant to any existing employment agreement with Palmera and certain
compensation accruals for Officers of the corporation, namely the
President and Treasurer/Secretary of the company, made any accrual or
arrangement for payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or
employee; (vii) other than pursuant to any existing employment agreement,
increased the rate of compensation payable or to become payable by it to
any of its officers or any of its employees; or (viii) other than pursuant
to any existing employment agreement with Palmera and certain compensation
accruals for Officers of the corporation, namely the President and
Treasurer/Secretary of the company, made any increase in any profit
sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit plan, payment, or arrangement made to, for, or with
its officers, directors, or employees;
(c) Trinity has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in the ordinary
course of business; (ii) sold or transferred, or agreed to sell or
transfer, any material assets, properties, or rights, or canceled, or
agreed to cancel, any material debts or claims; or (iv) made or permitted
any material amendment or termination of any contract, agreement, or
license to which it is a party;
(d) To its knowledge, Trinity has not become subject to any law
or regulation which has had or in the future is substantially likely to
have a Material Adverse Effect on Trinity.
SECTION 3.06 GOVERNMENTAL OR THIRD PARTY CONSENT
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with Trinity, is required by or
with respect to Trinity in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated
hereby, except for such consents, waivers, approvals, orders,
authorizations, registrations, declarations and filings as may be required
under (i) applicable securities laws, or (ii) the FBCA.
SECTION 3.07 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against or, to the knowledge of Trinity, threatened, against or affecting
Trinity or any of its material assets or properties before any court or
arbitrator or any governmental body, agency or official.
SECTION 3.08 INTERESTED PARTY TRANSACTIONS
Trinity is not indebted to any officer or director of Trinity, and
no such person is indebted to Trinity.
SECTION 3.09 COMPLIANCE WITH APPLICABLE LAWS.
To the knowledge of Trinity, the business of Trinity has not been,
and is not being, conducted in violation of any Applicable Law.
SECTION 3.10 TAX RETURNS AND PAYMENT
Trinity is a newly formed corporation which has not yet been
required to file any Tax Returns.
SECTION 3.11 FINDERS' FEES
Trinity has not incurred, nor will it incur, directly or indirectly,
any liability for brokers' or finders' fees or agents' commissions or
investment bankers' fees or any similar charges in connection with this
Agreement.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
SECTION 4.01 COVENANTS OF TRINITY
Trinity covenants and agrees that, during the period from the date
of this Agreement until the Closing Date, Trinity shall, except as
otherwise disclosed in this Agreement and other than as contemplated by
this Agreement or for the purposes of effecting the Merger and Closing
pursuant to this Agreement, conduct its business as presently operated and
solely in the ordinary course, and consistent with such operation, and, in
connection therewith, without the written consent of MGS:
(a) shall not amend its Articles of Incorporation or Bylaws;
(b) shall not sell, transfer, or otherwise dispose of any
material assets required for the operations of Trinity's business, except for
the transfer of certain material technology to an affiliate of Trinity and
except in the ordinary course of business consistent with past practices;
(c) shall not create, incur, assume, or guarantee any material
indebtedness for money borrowed except in the ordinary course of business,
or create or suffer to exist any mortgage, lien or other encumbrance on any
of its material assets, except those in existence on the date hereof or those
granted pursuant to agreements in effect on the date of this Agreement or
created for the benefit of MGS , the Merger Sub or the Principal Stockholder;
(d) shall not declare or pay any dividends on or make any
distribution of any kind with respect to the Trinity Shares; and
(e) shall use commercially reasonable efforts to comply with and
not be in default or violation under any known law, regulation, decree or
order applicable to Trinity's business, operations or assets where such
violation would have a Material Adverse Effect on Trinity.
SECTION 4.02 COVENANTS OF THE PARTIES
(a) Tax-free Reorganization. The Parties intend that the Merger
qualify as a Tax-free "reorganization" under Sections 368(a) of the Code,
as amended, and the Parties will take the position for all purposes that
the Merger shall qualify as a reorganization under such Section. In
addition, the Parties covenant and agree that they will not engage in any
action, or fail to take any action, which action or failure to take action
would reasonably be expected to cause the Merger to fail to qualify as a
Tax-free "reorganization" under Section 368(a) of the Code, whether or not
otherwise permitted by the provisions of this Agreement;
(b) Announcement. Neither Trinity, on the one hand, nor MGS on
the other hand, shall issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other Party, except as may be
required by applicable law or securities regulation. Upon execution of
this Agreement, MGS shall issue a press release, which shall be approved
by Trinity.
(c) Notification of Certain Matters. Trinity shall give prompt
written notice to MGS, and MGS shall give prompt written notice to
Trinity, of:
(i) The occurrence, or nonoccurrence, of any event the
occurrence, or nonoccurrence, of which would be reasonably likely to cause
any representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the Effective Time; and
(ii) Any material failure of Trinity on the one hand, or MGS
or the MGS Principal Stockholder, on the other hand, to comply with or
satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder.
(d) Reasonable Best Efforts. Before Closing, upon the terms and
subject to the conditions of this Agreement, the Parties agree to use
their respective reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper
or advisable (subject to applicable laws) to consummate and make effective
the Merger and other transactions contemplated by this Agreement as
promptly as practicable including, but not limited to:
(i) The preparation and filing of all forms, registrations
and notices required to be filed to consummate the Merger, including
without limitation, any approvals, consents, orders, exemptions or waivers
by any third party or governmental entity; and
(ii) The satisfaction of the Party's conditions precedent to
Closing.
(e) Access to Information
(i) Inspection by Trinity. MGS will make available for
inspection by Trinity, during normal business hours and in a manner so as
not to interfere with normal business operations, all of MGS's records
(including tax records), books of account, premises, contracts and all
other documents in MGS's possession or control that are reasonably
requested by Trinity to inspect and examine the business and affairs of
MGS. MGS will cause its managerial employees and regular independent
accountants to be available upon reasonable advance notice to answer
questions of Trinity concerning the business and affairs of MGS. Trinity
will treat and hold as confidential any information it receives from MGS
in the course of the reviews contemplated by this Section 4.02(e). No
examination by Trinity will, however, constitute a waiver or
relinquishment by Trinity of its rights to rely on MGS's or the MGS
Principal Stockholder's covenants, representations and warranties made
herein or pursuant hereto.
(ii) Inspection by MGS. Trinity will, if requested, make
available for inspection by MGS, during normal business hours and in a
manner so as not to interfere with normal business operations, all of
Trinity's records (including tax records), books of account, premises,
contracts and all other documents in Trinity's possession or control that
are reasonably requested by MGS to inspect and examine the business and
affairs of Trinity. Trinity will cause its managerial employees and
regular independent accountants to be available upon reasonable advance
notice to answer questions of MGS concerning the business and affairs of
Trinity. MGS will treat and hold as confidential any information they
receive from Trinity in the course of the reviews contemplated by this
Section 4.02(e). No examination by MGS will, however, constitute a waiver
or relinquishment by MGS of its rights to rely on Trinity's covenants,
representations and warranties made herein or pursuant hereto.
(f) Approval by MGS Principal Stockholder. By his execution and
delivery of this Agreement, the MGS Principal Stockholder does hereby
approve, adopt and ratify this Merger Agreement, the Merger and all of the
transactions contemplated hereby and pursuant to all exhibits hereto.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS.
The obligations of the Parties as provided herein shall be subject
to each of the following conditions precedent, unless waived in writing by
both MGS and Trinity:
(a) Consents, Approvals. The Parties shall have obtained all
necessary consents and approvals of their respective boards of directors,
and all consents, approvals and authorizations required under their
respective charter documents, and all material consents, including any
material consents and waivers by the Parties' respective lenders and other
third-parties, if necessary, to the consummation of the transactions
contemplated by this Agreement.
(b) Shareholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved by the shareholders of
Trinity and by the shareholder of Merger Sub in accordance with the
applicable provisions of the FBCA and their respective bylaws.
(c) Increase in Authorized Shares. The Certificate of
Incorporation of MGS shall have been amended in accordance with Applicable
Law to increase the number of authorized MGS Shares to a number of shares
at least sufficient to allow for the issuance of the Merger Shares, and
all filings required by applicable securities laws in connection with such
amendment shall have been made.
(d) Absence of Certain Litigation. No action or proceeding shall
be threatened or pending before any governmental entity or authority
which, in the reasonable opinion of counsel for the Parties, is likely to
result in a restraint, prohibition or the obtaining of damages or other
relief in connection with this Agreement or the consummation of the
Merger.
(e) Palmera Merger. The Palmera Merger shall have taken place.
SECTION 5.02 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF MGS AND THE MGS
PRINCIPAL STOCKHOLDER
The obligations of MGS and the MGS Principal Stockholder on the
Closing Date as provided herein shall be subject to the satisfaction, on
or prior to the Closing Date, of the following conditions precedent,
unless waived in writing by MGS or the MGS Principal Stockholder:
(a) Consents And Approvals. Trinity shall have obtained all
material consents, including any material consents and waivers by
Trinity's lenders and other third-parties, if necessary, to the
consummation of the transactions contemplated by this Agreement.
(b) Representations and Warranties. The representations and
warranties by Trinity in Article III herein shall be true and accurate in
all material respects on and as of the Closing Date with the same force
and effect as though such representations and warranties had been made at
and as of the Closing Date, except to the extent that any changes therein
are specifically contemplated by this Agreement.
(c) Performance. Trinity shall have performed and complied in all
material respects with all agreements to be performed or complied with by
it pursuant to this Agreement at or prior to the Closing.
(d) Proceedings and Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to MGS and its
counsel, and MGS and its counsel shall have received all such counterpart
originals (or certified or other copies) of such documents as they may
reasonably request.
(e) Certificate of Good Standing. Trinity shall have delivered to
MGS a certificate as to the good standing of Trinity certified by the
Secretary of State of the State of Florida on or within fourteen (14)
business days prior to the Closing Date.
(f) Material Changes. Except as contemplated by this Agreement,
since the date hereof, Trinity shall not have suffered a Material Adverse
Effect, and, without limiting the generality of the foregoing, there shall
be no pending litigation to which Trinity is a party which is reasonably
likely to have a Material Adverse Effect on Trinity;
(g) SEC Filing. No less than one week prior to the Closing,
Trinity shall have delivered to MGS the financial statements, report of
Trinity's independent public accountant, and other information required
for inclusion in the Current Report that MGS will file with the Securities
and Exchange Commission within four business days after the Closing;
(h) Financing. The conditions for Forward Delivery of the
Escrowed Documents defined in the Reorganization Agreement shall have been
satisfied.
SECTION 5.03 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF TRINITY
The obligations of Trinity on the Closing Date as provided herein
shall be subject to the satisfaction, on or prior to the Closing Date, of
the following conditions precedent, unless waived in writing by Trinity:
(a) Consents And Approvals. MGS and Merger Sub shall have
obtained all material consents, including any material consents and
waivers of its respective lenders and other third parties, if necessary,
to the consummation of the transactions contemplated by this Agreement.
(b) Performance. MGS, the MGS Principal Stockholder and Merger
Sub shall have performed and complied in all material respects with all
agreements to be performed or complied with by it pursuant to this
Agreement prior to or at the Closing.
(c) Proceedings And Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to Trinity and its
counsel, and Trinity and its counsel shall have received all such
counterpart originals (or certified or other copies) of such documents as
they may reasonably request.
(d) Certificates of Good Standing. MGS shall have delivered to
Trinity a certificate as to its good standing in the State of New York,
and the Merger Sub shall have delivered to Trinity a certificate as to its
good standing in the State of Florida, in each case certified by the
Secretary of State not more than fourteen (14) business days prior to the
Closing Date.
ARTICLE VI
TERMINATION
SECTION 6.01 TERMINATION.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time by:
(a) Either MGS, on the one hand, or Trinity, on the other hand, if
any governmental entity or court of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the Parties shall use their commercially
reasonable best efforts to lift), which restrains, enjoins or otherwise
prohibits the Merger or the issuance of the Merger Shares pursuant to the
Merger and such order, decree, ruling or other action shall have become
final and non-appealable;
(b) MGS, if Trinity shall have breached in any material respect
any of its representations, warranties, covenants or other agreements
contained in this Agreement, and the breach cannot be or has not been
cured within thirty (30) calendar days after the giving of written notice
by MGS to Trinity;
(c) Trinity, if MGS shall have breached in any material respect
any of its representations, warranties, covenants or other agreements
contained in this Agreement, and the breach cannot be or has not been
cured within thirty (30) calendar days after the giving of written notice
by Trinity to MGS; or
(d) Without any action on the part of the Parties if required by
Applicable Law or if the Palmera Merger shall not have been consummated by
January 23, 2006.
SECTION 6.02 EFFECT OF TERMINATION.
If this Agreement is terminated as provided in Section 6.01, written
notice of such termination shall be given by the terminating Party to the
other Party specifying the provision of this Agreement pursuant to which
such termination is made, this Agreement shall become null and void and
there shall be no liability on the part of MGS or Trinity, provided,
however, that (a) the provisions of Article VII hereof shall survive the
termination of this Agreement; (b) nothing in this Agreement shall relieve
any Party from any liability or obligation with respect to any willful
breach of this Agreement; and (c) termination shall not affect accrued
rights or liabilities of any party at the time of such termination..
ARTICLE VII
CONFIDENTIALITY
SECTION 7.01 CONFIDENTIALITY
MGS, on the one hand, and Trinity, on the other hand, will keep
confidential all information and documents obtained from the other,
including but not limited to any information or documents provided
pursuant to Section 4.02(e) hereof, which are designated by such Party as
confidential (except for any information disclosed to the public pursuant
to a press release authorized by the Parties); and in the event the
Closing does not occur or this Agreement is terminated for any reason,
will promptly return such documents and all copies of such documents and
all notes and other evidence thereof, including material stored on a
computer, and will not use such information for its own advantage, except
to the extent that (i) the information must be disclosed by law, (ii) the
information becomes publicly available by reason other than disclosure by
the Party subject to the confidentiality obligation, (iii) the information
is independently developed without use of or reference to the other
Party's confidential information, (iv) the information is obtained from
another source not obligated to keep such information confidential, or (v)
the information is already publicly known or known to the receiving Party
when disclosed as demonstrated by written documentation in the possession
of such Party at such time.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 INDEMNIFICATION BY MGS
MGS and the MGS Principal Stockholder shall, jointly and severally,
indemnify, defend and hold harmless each of Trinity, any subsidiary or
affiliate thereof and each person who is now, or has been at any time
prior to the date hereof or who becomes prior to the Closing, an officer,
director or partner of Trinity, any subsidiary or affiliate thereof or an
employee of Trinity, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the
"Trinity Indemnified Parties") against all losses, claims, damages, costs,
expenses (including reasonable attorneys' fees), liabilities or judgments
or amounts that are paid in settlement of or in connection with any
threatened or actual third party claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part
out of (i) any material breach of this Agreement by the Principal
Stockholder, MGS or any subsidiary or affiliate thereof, including but not
limited to failure of any representation or warranty to be true and
correct at or before the Closing, (ii) any willful or grossly negligent
act, omission or conduct of any officer, director or agent of MGS or any
subsidiary or affiliate thereof prior to the Closing, whether asserted or
claimed prior to, at or after, the Closing, or (iii) relating to the
consummation of the transactions contemplated herein, and any action taken
in connection therewith. Any Trinity Indemnified Party wishing to claim
indemnification under this Section 8.01, upon learning of any such claim,
action, suit, proceeding or investigation, shall notify MGS in writing,
but the failure to so notify shall not relieve MGS from any liability that
it may have under this Section 8.01, except to the extent that such
failure would materially prejudice MGS.
SECTION 8.02 INDEMNIFICATION BY TRINITY
Trinity shall indemnify, defend and hold harmless each of MGS, any
subsidiary or affiliate thereof and each person who is now, or has been at
any time prior to the date hereof or who becomes prior to the Closing, an
officer, director or partner of MGS, any subsidiary or affiliate thereof
or an employee of MGS, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the "MGS
Indemnified Parties") against all losses, claims, damages, costs, expenses
(including reasonable attorneys' fees), liabilities or judgments or
amounts that are paid in settlement of or in connection with any
threatened or actual third party claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part
out of (i) any material breach of this Agreement by Trinity or any
subsidiary or affiliate thereof, including but not limited to failure of
any representation or warranty to be true and correct at or before the
Closing, (ii) any willful or negligent act, omission or conduct of any
officer, director or agent of Trinity or any subsidiary or affiliate
thereof prior to the Closing, whether asserted or claimed prior to, at or
after, the Closing, or (iii) relating to the consummation of the
transactions contemplated herein, and any action taken in connection
therewith. Any MGS Indemnified Party wishing to claim indemnification
under this Section 8.02, upon learning of any such claim, action, suit,
proceeding or investigation, shall notify Trinity in writing, but the
failure to so notify shall not relieve Trinity from any liability that it
may have under this Section 8.02, except to the extent that such failure
would materially prejudice Trinity.
SECTION 8.03 INDEMNIFICATION OF EXCHANGE AGENT
(a) MGS, Trinity and Merger Sub (for the purposes of this Section
8.03, the "Indemnitors") agree to indemnify the Exchange Agent ( the
"Indemnitee") against, and hold him harmless of and from, any and all
loss, liability, cost, damage and expense, including without limitation,
reasonable counsel fees, which the Indemnitee may suffer or incur by
reason of any action, claim or proceeding brought against the Indemnitee
arising out of or relating in any way to the Exchange Agent's service in
such capacity, unless such action, claim or proceeding is the result of
the willful misconduct or gross negligence of the Indemnitee.
(b) If the indemnification provided for in Section 8.03(a) is
applicable, but for any reason is held to be unavailable, the Indemnitors
shall jointly and severally contribute such amounts as are just and
equitable to pay, or to reimburse the Indemnitee for, the aggregate of any
and all losses, liabilities, costs, damages and expenses, including
counsel fees, actually incurred by the Indemnitee as a result of or in
connection with, and any amount paid in settlement of, any action, claim
or proceeding arising out of or relating in any way to any actions or
omissions of the Indemnitors.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 EXPENSES.
Except as contemplated by this Agreement, all costs and expenses
incurred in connection with this Agreement and the consummation of the
transactions contemplated by this Agreement shall be paid by the Party
incurring such expenses.
SECTION 9.02 APPLICABLE LAW
This Agreement shall be governed by the laws of the State of
Florida, without giving effect to the principles of conflicts of laws
thereof, as applied to agreements entered into and to be performed in such
state.
SECTION 9.03 NOTICES.
All notices and other communications under this Agreement shall be
in writing and shall be deemed to have been duly given or made as follows:
(a) If sent by reputable overnight air courier (such as Federal
Express), 2 business days after being sent;
(b) If sent by facsimile transmission, with a copy delivered in
the manner provided in clauses (a) or (c) , when transmitted and receipt
is confirmed by the fax machine; or
(c) If otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be
sent or delivered as follows:
If to Trinity, to:
M. Xxxxx Xxxxx, III
President
19321 US Highway 00 Xxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 727-535-9600
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq
000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to MGS and/or the Principal Stockholder, to:
Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxx. Xxxx, Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxx, Esq.
0000 Xx. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Each Party may change its address by written notice in accordance
with this Section.
SECTION 9.04 ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned by any of the Parties
(whether by operation of law or otherwise) without the prior written
consent of the other Parties; provided that in no event may the right to
indemnification provided by Article VIII hereto be assigned by any of the
Parties, with or without consent, except by operation of law. Subject to
the immediately foregoing sentence of this Section 9.05, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the
Parties and their respective heirs, legal representatives, successors and
assigns.
SECTION 9.05 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which shall be
considered one and the same agreement.
SECTION 9.06 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided by this Agreement, nothing herein is
intended to confer upon any person or entity not a Party to this Agreement
any rights or remedies under or by reason of this Agreement.
SECTION 9.07 RULES OF CONSTRUCTION.
The Parties agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
MAUI GENERAL STORE, INC.
By:
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
MGS TRINITY ACQUISITION CORP.
By:
Name: Xxxxxxx Xxxxxx
Title: President
MGS PRINCIPAL STOCKHOLDER
_____________________________________
XXXXXXX XXXXXX
TRINITY BIOGENICS, INC.
By:
Name: Xx. Xxxxxxxx Xxxxx
Title: Chairman
SCHEDULES AND EXHIBITS:
Exhibit A - Certificate of Merger
Schedule 3.08 Interested Party Transactions
APPENDIX C
ESCROW AND INTERIM OPERATIONS AGREEMENT
AGREEMENT made this 11th day of January, 2005 among MAUI GENERAL
STORE, INC., a New York corporation ("MGS"), XXXXXXX XXXXXX, the majority
shareholder of MGS ("Xxxxxx"), PALMERA HOLDINGS, INC., a Florida
corporation ("Palmera"), the individuals identified on the signature page
of this Agreement as shareholders of Palmera (the "Palmera Stockholders"),
and XXXXXX XXXXXX, counsel to Palmera (the "Escrow Agent").
WHEREAS, MGS, Xxxxxx and Palmera are on this date entering into an
Agreement and Plan of Merger (the "Palmera Merger Agreement"), pursuant to
which Palmera will be merged into a wholly-owned subsidiary of MGS (the
"Palmera Merger"); and
WHEREAS, the parties intend that after the Palmera Merger, MGS
will solicit sufficient capital to enable it to implement the business
plan of Palmera; and
WHEREAS, the parties wish to institute procedures which will effect
a partial rescission of the merger and related transactions in the event
that MGS does not acquire the necessary funds.
NOW, THEREFORE, it is agreed:
1. Escrow.
a. Upon the Effective Time of the Palmera Merger, the parties will
cause the Merger Shares, the Palmera Shares, and the Surviving Entity
Shares (all as described in Section 1.01 of the Palmera Merger Agreement
and, collectively, the "Escrowed Securities") to be delivered to the
Escrow Agent, accompanied by one stock power endorsed in blank (with, as
to shares of MGS, a medallion guaranteed signature) for each certificate
for Merger Shares or Surviving Entity Shares included among the Escrowed
Securities. The Escrow Agent shall hold the Escrowed Securities and
related stock powers (the "Escrowed Documents") in safe-keeping subject to
the terms of this Reorganization Agreement.
b. Upon the Closing Date of the Stock Purchase Agreement between
Xxxxxxx X. Xxxxxx and Palmera dated December 9, 2005 (the "Stock Purchase
Agreement"), Palmera will deliver the "Residual Cash Payment" (defined in
Section 2.2 of the Stock Purchase Agreement) to the Escrow Agent. The
Escrow Agent will cause the Residual Cash Payment to be deposited into the
account at Citibank, N.A. titled "Xxxxxx Xxxxxx, Esq. Attorney Escrow
Account XXXX," which is Citibank account number 00000000. Said account
does not pay interest.
2. Forward Delivery.
a. Promptly upon completion of the Palmera Merger, MGS will
undertake a private placement of its securities (the "Offering"). The
funds obtained in the Offering and related subscription agreements shall
be delivered to the Escrow Agent to hold pursuant to an escrow agreement
to be entered between MGS and the Escrow Agent. The escrow agreement will
require the Escrow Agent to hold the funds and subscription agreements
until at least Two Million Dollars ($2,000,000) in clear funds are in his
escrow account.
b. Promptly after the date on which the Escrow Agent receives at
least $2,000,000 in clear funds from subscriptions to the Offering (the
"Funding Date"), the Escrow Agent will destroy the stock powers included
in the Escrowed Documents and deliver the Escrowed Securities as follows:
Merger Shares to the Palmera Stockholders and Palmera Shares and Surviving
Entity Shares to MGS. At the same time, the Escrow Agent will deliver the
Residual Cash Payment to Xxxxxx. Upon such delivery (a "Forward
Delivery"), the obligations of the Escrow Agent under this Agreement will
terminate.
3. Reversion of the Escrowed Documents.
a. In the event that the Funding Date has not occurred prior to the
Futility Date, then promptly after the Futility Date the Escrow Agent will
deliver the Escrowed Documents thus: Merger Shares and related stock
powers to MGS for cancellation; Palmera Shares, Surviving Entity Shares
and related stock powers (endorsed to transfer the shares to the Palmera
Stockholders in proportion to the number of Palmera shares each held on
the Effective Date of the Palmera Merger) to Xxxxx Xxxxx for distribution
to the Palmera Stockholders. At the same time the Escrow Agent will
deliver the Residual Cash Payment to Palmera. Upon such delivery (a
"Reversion Delivery"), the obligations of the Escrow Agent under this
Agreement will terminate.
b. For purposes of this Section 3, the "Futility Date" will be May
16, 2006. Palmera will cause the Futility Date to become June 16, 2006
if, prior to May 16, 2006, it delivers to the Escrow Agent (i) proof of
payment to Xxxxxx of Five Thousand Dollars ($5,000) with a written notice
changing the Futility Date to June 16, 2006 and (ii) proof that MGS has,
after the Effective Time of the Palmera Merger, filed with the SEC an
information statement or proxy statement in contemplation of obtaining
shareholder approval of a recapitalization (e.g. increase in authorized
shares, reverse stock split). Palmera may further extend the Futility
Date to July 18 and/or to August 16 by delivering to the Escrow Agent
proof of payment to Xxxxxx of Ten Thousand Dollars ($10,000) for each
additional one month extension.
4. Interim Operations.
a. The date on which the Escrow Agent effects either a Forward
Delivery or a Reversion Delivery is the "Termination Date." The parties
intend that between the Effective Time of the Palmera Merger and the
Termination Date (the "Interim Period"), that the Palmera Stockholders and
the management to whom they entrust MGS shall take no action which would
have a material adverse effect on MGS in the event of a Reversion
Delivery. Specifically, but without limiting the breadth of the aforesaid
mutual intention, the Palmera Stockholders shall cause the directors and
officers of MGS during the Interim Period to abide by the following
restrictions:
i. MGS shall not incur any liabilities during the Interim Period
that would not be extinguished as a result of a Reversion
Delivery. In the event that MGS requires professional services,
the Surviving Entity will contract with the necessary
professionals or will prepay the services.
ii. The shareholders of MGS shall take no action other than (i) the
election of members of the MGS Board of Directors and (ii) the
permitted actions specifically identified in Section 4(c) below.
iii. MGS shall not enter into any contract that would survive a
Reversion Delivery and could not be terminated by MGS at will.
iv. MGS shall timely file with the Securities and Exchange
Commission all reports required by the Commissions rules and regulations.
(Xxxxxxx Xxxxxx hereby agrees to provide such assistance as MGS requires to
complete the preparation of audited financial statements for the year ended
December 31, 2005 and the filing of an annual report on Form 10-KSB for said
year.)
v. MGS shall not take any action or commit any failure to act which
results in the delisting of MGS common stock from the OTC Bulletin
Board.
vi. MGS shall not enter into any contract for the sale of MGS
securities that would not be terminated without liability on the
part of MGS if a Reversion Delivery were to occur.
b. Palmera and each of the Palmera Stockholders, jointly and
severally, hereby undertakes to reimburse MGS for any expense, loss or
liability it incurs as a result of a breach of the covenant in Section
4(a).
c. During the Interim Period, MGS may undertake and complete the
following shareholder actions:
i. a reverse split of the common stock at a ratio no greater than
one-for-thirty.
ii. an increase in the number of authorized shares of MGS
iii. a change in the name of the corporation.
5. Escrow Provisions.
5.1 The Escrow Agent may rely conclusively on, and shall be
protected in acting upon, any notice, request, consent, instruction,
affidavit or other instrument or document believed by him in good faith to
be genuine and containing what purports to be the signature of any of the
parties hereto or any investor in the Offering.
5.2 MGS and Palmera, jointly and severally, agree to save
harmless, defend and indemnify the Escrow Agent against all claims, costs,
damages, judgments, attorneys' fees, expenses, obligations, taxes,
assessments, liabilities, actions, suits or charges made against the
Escrow Agent by reason of any act or omission to act by him hereunder or
in connection with any of the transactions contemplated hereby and against
any loss he may sustain in carrying out the terms of this Agreement, other
than as a result of his gross negligence or willful misconduct.
5.3 The Escrow Agent shall have no duties or obligations under
this Agreement except as expressly set forth herein, shall be responsible
only for the performance of such duties and obligations, shall not be
required to take any action other than in accordance with the terms hereof
and shall not be in any manner liable or responsible for any loss or
damage arising by reason of any act or omission to act by him hereunder or
in connection with any of the transactions contemplated hereby, including,
but not limited to, any loss that may occur by reason of forgery, false
representations, the exercise of his discretion in any particular manner
or for any other reason except for his gross negligence or willful
misconduct.
5.4 The Escrow Agent shall not be bound by any notice of, or
demand with respect to, any waiver, modification, amendment, termination,
cancellation, rescission or supersession of this Agreement, unless the
same shall be in writing and signed by the parties hereto. In the event
of any controversy or dispute arising hereunder or with respect to the
construction hereof or any action to be taken by the Escrow Agent
hereunder, the Escrow Agent shall incur no liability from any action or
omission to act by him in good faith. The Escrow Agent shall not be
personally liable for any act the Escrow Agent may do or omit to do
hereunder as the Escrow Agent while acting in good faith, and any act done
or omitted by the Escrow Agent pursuant to the advice of the Escrow
Agent's attorneys-at-law shall be conclusive evidence of such good faith.
5.5 If the Escrow Agent receives a notice from any party that a
dispute exists with respect to the delivery and/or ownership or right of
possession of any Escrowed Document in his possession or of the Residual
Cash Payment, the Escrow Agent shall retain the Escrowed Document and/or
Residual Cash Payment in his possession and shall deliver such Escrowed
Document and/or Residual Cash Payment in accordance with the joint written
instructions of all parties to the dispute or a final order, decree or
judgment of a court of competent jurisdiction after the time for appeal
has expired and no appeal has been perfected. The Escrow Agent shall be
under no duty whatsoever to institute or defend any such proceedings with
respect to any Escrowed Document. The Escrow Agent may resign and be
discharged of his duties hereunder at any time by giving written notice to
all of the parties hereto. Such resignation shall take effect twenty (20)
days after the giving of such notice or upon the earlier receipt by the
Escrow Agent of an instrument of acceptance executed by a successor escrow
agent and upon delivery by the Escrow Agent of the Escrowed Documents and
Residual Cash Payment to such successor. The Escrow Agent shall also be
discharged of his duties and obligations hereunder upon deposit in a court
of competent jurisdiction of the Escrowed Documents and/or Residual Cash
Payment then held by him hereunder, and all parties hereto submit to the
personal jurisdiction of any such court and waive all rights to contest
jurisdiction.
5.6 The Escrow Agent shall be entitled to employ such legal
counsel and other experts as the Escrow Agent may deem necessary to advise
the Escrow Agent in connection with the Escrow Agent's duties hereunder,
may rely upon the advice of such counsel, and may pay such counsel
reasonable compensation therefor.
5.7 MGS shall pay the Escrow Agent for all services rendered
pursuant to this Agreement at the hourly rate that the Escrow Agent
customarily charges for legal services. MGS shall also reimburse the
Escrow Agent for any out-of-pocket expenses incurred in fulfilling his
obligations hereunder.
6. Miscellaneous
a Applicable Law. This Agreement shall be governed by the laws
of the State of Florida, without giving effect to the principles of
conflicts of laws thereof, as applied to agreements entered into and to be
performed in such state.
b. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
or made as follows:
(i) If sent by reputable overnight air courier (such as Federal
Express), 2 business days after being sent;
(ii) If sent by facsimile transmission, with a copy delivered in
the manner provided in clauses (i) or (iii) , when transmitted and receipt
is confirmed by the fax machine; or
(iii) If otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be
sent or delivered as follows:
If to Palmera, to:
M. Xxxxx Xxxxx, III
President
19321 US Highway 00 Xxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 727-535-9600
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to MGS and/or the Principal Stockholder, to:
Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxx. Xxxx, Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxx, Esq.
0000 Xx. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to a Palmera Stockholder, to the address of same as kept on the
stock records of MGS unless contrary written notice from the Palmera
Stockholder has been received by the party giving the notice.
With a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
(contact information above)
If to the Escrow Agent, to
Xxxxxx Xxxxxx, Esq,
(contact information above).
Each Party may change its address by written notice in accordance
with this Section.
c. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned by
any of the Parties (whether by operation of law or otherwise) without the
prior written consent of the other Parties. This Agreement will be
binding upon, inure to the benefit of and be enforceable by, the Parties
and their respective heirs, legal representatives, successors and assigns.
d. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which shall be considered one and the same agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
MAUI GENERAL STORE, INC. PALMERA HOLDINGS, INC.
By:__________________________ By:_____________________________
Xxxxxxx Xxxxxx, President Xx. Xxxxxxxx Xxxxx, Chairman
_____________________________ _____________________________
XXXXXXX XXXXXX XXXXXX XXXXXX
PALMERA STOCKHOLDERS: _____________________________
______________________________
_____________________________
_______________________________
______________________________
_______________________________
______________________________
_______________________________
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