EXHIBIT 2
AGREEMENT
This Agreement (this "Agreement") is entered into as of February 10,
2003 by and between BTSL TECHNOLOGIES LIMITED, an Irish limited liability
company ("BTSL"), and CONSOLIDATED RESOURCES GROUP, INC., a Florida corporation
("CSRG"). Certain other capitalized terms used herein are defined in Article
VIII and throughout this Agreement.
RECITALS
The Boards of Directors of BTSL and CSRG have determined that it is in
the best interests of their respective shareholders for BTSL to acquire
TecEnergy Enterprises Limited, an Irish limited liability company and a
wholly-owned subsidiary of CSRG ("TecEnergy"), upon the terms and subject to the
conditions set forth in this Agreement. In order to effectuate the transaction,
BTSL shall acquire all of the outstanding shares of capital stock of TecEnergy
from CSRG, and as a result, TecEnergy will become a wholly-owned subsidiary of
BTSL.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE TRANSACTION
1.1 TRANSACTION. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 1.2), BTSL, or its nominee,
shall acquire and CSRG shall sell, convey, transfer, assign and deliver to BTSL
all of the issued and outstanding shares of capital stock and any other rights
comprising all of the capital stock of TecEnergy (the "TecEnergy Shares"), free
and clear of any Liens. In exchange for the TecEnergy Shares, the aggregate
consideration that will be paid by BTSL (the "BTSL Consideration") shall be
equal to 2,200,000 shares of common stock, par value $.001 per share, of CSRG
(the "CSRG Common Stock").
1.2 CLOSING. Subject to the terms and conditions of this
Agreement, the consummation of the transactions contemplated hereby (the
"Closing") shall take place on the date hereof after the satisfaction or waiver
of the conditions set forth in Articles V and VI, at the offices of BTSL's
counsel, or such other time and place as the parties may otherwise agree. The
date on which the Closing occurs shall be herein referred to as the "Closing
Date."
1.3 TRANSFERS. At the Closing, CSRG shall deliver to BTSL, or its
nominee, the certificate representing the TecEnergy Shares, along with a stock
power with respect to such certificate duly endorsed to BTSL, and BTSL shall
deliver to CSRG the BTSL Consideration payable pursuant to Section 1.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BTSL
As a material inducement to CSRG to enter into this Agreement and to
consummate the transactions contemplated hereby, BTSL makes the following
representations and warranties to CSRG as of the Closing Date:
2.1 CORPORATE STATUS. BTSL is a limited liability company duly
organized, validly existing and in good standing under the laws of Ireland.
2.2 CORPORATE POWER AND AUTHORITY. BTSL has the corporate power
and authority to execute and deliver the Transaction Documents (as defined
below), to perform its obligations thereunder and to consummate the transactions
contemplated thereby. BTSL has taken all action necessary to authorize its
execution and delivery of the Transaction Documents, the performance of its
obligations thereunder and the consummation of the transactions contemplated
thereby.
2.3 ENFORCEABILITY. The Transaction Documents have been duly
executed and delivered by BTSL and constitute legal, valid and binding
obligations of BTSL, enforceable against BTSL in accordance with their terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
2.4 NO VIOLATION. The execution and delivery of the Transaction
Documents by BTSL, the performance by it of its obligations thereunder and the
consummation by it of the transactions contemplated thereby will not (i)
contravene any provision of the Articles of Association or Memorandum of
Association of BTSL, (ii) violate or conflict with any law, statute, ordinance,
rule, regulation, decree, writ, injunction, judgment or order of any
Governmental Authority or of any arbitration award which is either applicable
to, binding upon or enforceable against BTSL, or any of its assets, (iii)
conflict with, result in any breach of, or constitute a default (or an event
which would, with the passage of time or the giving of notice or both,
constitute a default) under, or give rise to a right to terminate, amend,
modify, abandon or accelerate, any Contract which is applicable to, binding upon
or enforceable against BTSL, or any of its properties or assets, or to which it
is a party, (iv) result in or require the creation or imposition of any Lien
upon or with respect to any of the properties or assets of BTSL, or (v) require
BTSL to obtain the consent, approval, authorization or permit of, or file with
or notify, any Governmental Authority, any court or tribunal or any other
Person.
2.5 ACCURACY OF INFORMATION FURNISHED BY BTSL. No statement or
information made or furnished by BTSL to CSRG or any of CSRG's representatives,
including those contained in this Agreement and the various Schedules attached
hereto and the other information and statements referred to herein and
previously furnished by BTSL, contains or shall contain any untrue statement of
a material fact or omits or shall omit any material fact necessary to make the
information contained therein not misleading.
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2.6 LITIGATION. There is no action, suit, or other legal or
administrative proceeding or governmental investigation pending, threatened,
anticipated or contemplated (i) which could affect BTSL's properties or assets,
or (ii) to which BTSL is a party which questions the validity or enforceability
of this Agreement or the transactions contemplated hereby, and there is no basis
for any of the foregoing. There are no outstanding orders, decrees or
stipulations issued by any Governmental Authority in any proceeding to which
BTSL is or was a party, or by which any of its properties or assets may be
bound, which have not been complied with in full or which continue to impose any
material obligations on BTSL.
2.7 NO COMMISSIONS. BTSL has not incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar compensation in
connection with the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
CSRG
As a material inducement to BTSL to enter into this Agreement and to
consummate the transactions contemplated hereby, CSRG makes the following
representations and warranties to BTSL as of the Closing Date:
3.1 CORPORATE STATUS. CSRG is duly organized, validly existing and
in active status under the laws of its jurisdiction of organization, and has the
requisite power and authority to own or lease its properties and to carry on its
business as now being conducted. CSRG is not qualified to transact business as a
foreign entity in any jurisdiction, and the nature of its properties and the
conduct of its business does not require such qualification. CSRG has fully
complied with all of the requirements of any law, statute, ordinance, rule,
regulation, decree, writ, injunction, judgment or order governing the use and
registration of fictitious names, and has the legal right to use the names under
which it operates its business. There is no pending or threatened proceeding for
the dissolution, liquidation, insolvency or rehabilitation of TecEnergy, any
Subsidiary (as defined below) or CSRG.
3.2 POWER AND AUTHORITY. CSRG has the power and authority to
execute and deliver the Transaction Documents, to perform its obligations
thereunder and to consummate the transactions contemplated thereby. CSRG has
taken all action necessary to authorize the execution and delivery of the
Transaction Documents, the performance of its obligations thereunder and the
consummation of the transactions contemplated thereby. The execution and
delivery of the Transaction Documents by CSRG, the performance by it of its
obligations thereunder and the consummation by it of the transactions
contemplated by thereby (i) have been approved by Xxxxxx Xxxxxxxx in his
capacity as a director of CSRG, and (ii) do not require the consent or approval
of the shareholders of CSRG. Xx. Xxxxxxxx was a director of CSRG prior to the
time BTSL acquired any shares of CSRG Common Stock, has held that status
continuously since then through the Closing Date, and is a "disinterested
director" with respect to this Agreement and the transactions contemplated
hereby as defined in Section 607.0901(1)(h) of the Florida Business Corporation
Act.
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3.3 ENFORCEABILITY. The Transaction Documents have been duly
executed and delivered by CSRG, and constitute legal, valid and binding
obligations of CSRG, enforceable against it in accordance with their terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
3.4 CAPITALIZATION. As of the date hereof, TecEnergy's issued and
outstanding capital stock consists solely of 1,000 ordinary shares, such
ordinary shares comprising all of the TecEnergy Shares. All of the TecEnergy
Shares and the issued and outstanding shares of capital stock of each Subsidiary
(i) have been duly authorized and validly issued and are fully paid and
non-assessable, (ii) were issued in compliance with all applicable federal,
state and foreign securities laws, and (iii) were not issued in violation of any
preemptive rights or rights of first refusal. No preemptive rights or rights of
first refusal exist with respect to the shares of capital stock of TecEnergy or
any Subsidiary and no such rights arise by virtue of or in connection with this
Agreement and the transactions contemplated hereby. Except as provided in
Section 4.3(b) of this Agreement, there are no outstanding or authorized rights,
options, warrants, convertible securities, subscription rights, conversion
rights, exchange rights or other agreements or commitments of any kind
(including, but not limited to, any agreements or commitments in favor of CSRG
or any of its Affiliates) that could require TecEnergy or any Subsidiary to
issue or sell any shares of its capital stock (or securities convertible into or
exchangeable for shares of its capital stock). There are no outstanding stock
appreciation, phantom stock, profit participation or other similar rights with
respect to TecEnergy or any Subsidiary. There are no proxies, voting
arrangements, shareholder agreements or other agreements or understandings with
respect to the voting or transfer of the capital stock of TecEnergy or any
Subsidiary, including, but not limited to, any agreements or understandings in
favor of CSRG or any of its Affiliates. Neither TecEnergy nor any Subsidiary is
obligated to redeem or otherwise acquire any of its outstanding shares of
capital stock. As of the Closing Date, all of the shares of CSRG Common Stock to
be delivered by BTSL to the Escrow Agent (as defined in the Escrow Agreement (as
defined below)) on the Closing Date pursuant to Section 5.5 below were duly
authorized and validly issued and are fully paid and non-assessable, free of any
preemptive rights or rights of first refusal.
3.5 NO VIOLATION. The execution and delivery of the Transaction
Documents by CSRG and the performance by it of its obligations hereunder and the
consummation by it of the transactions contemplated thereby will not (i)
contravene any provision of the Articles of Incorporation or Bylaws of CSRG,
(ii) violate or conflict with any law, statute, ordinance, rule, regulation,
decree, writ, injunction, judgment or order of any Governmental Authority or of
any arbitration award which is either applicable to, binding upon or enforceable
against TecEnergy, any of the Subsidiaries or CSRG, or any of their assets,
(iii) conflict with, result in any breach of, or constitute a default (or an
event which would, with the passage of time or the giving of notice or both,
constitute a default) under, or give rise to a right to terminate, amend,
modify, abandon or accelerate, any Contract which is applicable to, binding upon
or enforceable against TecEnergy, any of the Subsidiaries or CSRG, or any of
their properties or assets, or to which any of them is a party, (iv) result in
or require the creation or imposition of any Lien upon or with respect to any of
the properties or assets of TecEnergy, any of the Subsidiaries or CSRG
(including, but not limited to, the TecEnergy Shares), or (v) require CSRG to
obtain the consent,
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approval, authorization or permit of, or file with or notify, any Governmental
Authority, any court or tribunal or any other Person, except for any filings
with the Securities and Exchange Commission required to be made by CSRG.
3.6 SOLE SHAREHOLDER. As of the date hereof, CSRG constitutes the
sole holder, beneficially and of record, of all of the issued and outstanding
shares of capital stock of TecEnergy (all of which such shares comprise the
TecEnergy Shares), and CSRG owns such shares free and clear of all Liens,
restrictions and claims of any kind. On the Closing Date, CSRG will deliver to
BTSL good and marketable title to the TecEnergy Shares, free and clear of all
Liens, restrictions and claims of any kind. As of the date hereof, TecEnergy
constitutes the sole holder of all of the issued and outstanding shares of
capital stock of each Subsidiary, and TecEnergy owns such shares free and clear
of all Liens, restrictions and claims of any kind.
3.7 SUBSIDIARIES. The entities listed on Schedule 3.7 are direct,
wholly-owned subsidiaries of TecEnergy (each, a "Subsidiary" and, collectively,
the "Subsidiaries"). Schedule 3.7 sets forth the full capitalization of each
Subsidiary. Except for the Subsidiaries, TecEnergy does not own, directly or
indirectly, any outstanding voting securities of or other interests or
investments in, or control, any other corporation, partnership, company, joint
venture or other business entity.
3.8 NO CSRG RELATED DIRECTORS OR OFFICERS. Subject to Section 6.5,
and except for Xxx Xxxxxx, as of the Closing Date, no officer, director,
employee, independent contractor or consultant of CSRG or any of its
subsidiaries (other than TecEnergy) will be an officer, director, employee,
independent contractor or consultant of TecEnergy or any of the Subsidiaries.
3.9 CERTAIN LIABILITIES OF TECENERGY AND THE SUBSIDIARIES. As of
the Closing Date, neither TecEnergy nor any Subsidiary owes CSRG (or any of its
Affiliates) any dividends, preferences, distributions or other payments on its
capital stock.
3.10 LITIGATION. Except as set forth in Schedule 3.10, there is no
action, suit, or other legal or administrative proceeding or governmental
investigation pending, threatened, anticipated or contemplated (i) which could
affect any of TecEnergy's, any Subsidiary's or CSRG's properties or assets, or
(ii) to which TecEnergy, any Subsidiary or CSRG is a party which questions the
validity or enforceability of this Agreement or the transactions contemplated
hereby, and there is no basis for any of the foregoing. There are no outstanding
orders, decrees or stipulations issued by any Governmental Authority in any
proceeding to which TecEnergy, any Subsidiary or CSRG is or was a party, or by
which any of their properties or assets may be bound, which have not been
complied with in full or which continue to impose any material obligations on
TecEnergy, any Subsidiary or CSRG.
3.11 GOOD TITLE TO ASSETS. Neither CSRG nor any of its Affiliates
has any Liens or claims of any kind whatsoever, whether absolute or contingent,
on or with respect to any of the properties or assets of TecEnergy or any
Subsidiary.
3.12 INTERCOMPANY TRANSACTIONS. As of the Closing Date, there is no
intercompany Indebtedness or other liabilities or obligations of any kind
(including, but not limited to, contingent liabilities) between TecEnergy and
CSRG, or between any Subsidiary and CSRG.
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Neither TecEnergy nor any Subsidiary has guaranteed, or is otherwise liable for,
any Indebtedness or other obligations of CSRG or any of its Affiliates. Neither
TecEnergy nor any Subsidiary is liable for any payments or other obligations of
CSRG or any of its Affiliates under any agreements with any Person. Except for
this Agreement and that certain 2001 Asset Purchase Agreement, dated December 5,
2001, between BTSL and CSRG (the "2001 Asset Purchase Agreement"), there are no
Contracts of any kind between TecEnergy or any Subsidiary, on the one hand, and
CSRG or any of its directors, officers, employees or other Affiliates, on the
other hand. No officer, director or shareholder or other Affiliate of CSRG, nor
any Person related by blood or marriage to any such Person, nor any entity in
which any such Person owns any beneficial interest, has any interest in any
property used by TecEnergy or any Subsidiary.
3.13 EMPLOYEE BENEFIT PLANS.
(a) To the Knowledge of CSRG, neither TecEnergy nor any
Subsidiary currently has, or has ever had, any Employee Benefit Plan (as defined
in clause (c) below). CSRG does not currently have, and has never had, any
Employment Benefit Plan in which any officer, director, employee or consultant
of TecEnergy or any Subsidiary is entitled or eligible to participate.
(b) The consummation of the Closing, and the completion
of the other transactions contemplated by this Agreement, will not trigger any
liabilities or obligations of any kind under any Employee Benefit Plan.
(c) For purposes hereof, "Employee Benefit Plan" means
any: (i) employee pension benefit plan as defined in Section 3(2) of ERISA; (ii)
multiemployer plan as defined in Section 3(37) of ERISA; (iii) employee welfare
benefit plan as defined in Section 3(1) of ERISA; (iv) any stock option, bonus,
stock purchase, or insurance plan and any severance or termination pay plan or
policy in which employees, spouses or dependents participate; and (v) any other
employee benefit plan which is applicable to employees, spouses or dependents.
3.14 COMPLIANCE WITH LAWS. CSRG is and has been in full compliance
with all laws, regulations, ordinances and other legal requirements applicable
to it. CSRG is not subject to any Contract, decree or injunction which restricts
the continued operation of any business of TecEnergy or any Subsidiary, or the
expansion thereof to other geographical areas, customers and suppliers or lines
of business.
3.15 TAXES. Neither TecEnergy nor any Subsidiary is a party to any
intercompany tax indemnity agreement, tax sharing agreement, or other similar
agreement under which it will have tax liability to or with respect to CSRG or
any of its Affiliates following the Closing. To the Knowledge of CSRG, (i) CSRG
has filed or caused to be filed all Tax Returns of TecEnergy and each Subsidiary
which have become due (taking into account valid extensions of time to file),
and has paid or caused to be paid all Taxes shown thereon as due, (ii) there are
no outstanding Tax Liens that have been filed by any Tax Governmental Authority
against any property or assets of TecEnergy or any Subsidiary, (iii) no claims
are currently being asserted in writing with respect to any Taxes of TecEnergy
or any Subsidiary, and (iv) no audit or other investigation related to the Taxes
of TecEnergy or any Subsidiary is currently being conducted by any Governmental
Authority.
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3.16 LABOR AND EMPLOYMENT MATTERS. CSRG is not a party to or bound
by any collective bargaining agreement or any other agreement with a labor union
which could affect TecEnergy or any Subsidiary, or any of their employees.
3.17 INSURANCE. The insurance policies of CSRG are independent of
and separate from the insurance policies of BTSL and each Subsidiary and no
actions or omissions of CSRG following the Closing will have an adverse impact
on the insurance policies of BTSL or any Subsidiary, including, but not limited
to, the premiums thereof.
3.18 NO ADVERSE ACTIONS. From the period commencing on the date
that CSRG acquired the TecEnergy Shares and ending on the Closing Date, CSRG did
not, either directly or indirectly (including, but not limited to, through an
Affiliate), and did not cause TecEnergy or any of the Subsidiaries to, (i)
transfer, sell, hypothecate or otherwise convey, any assets of TecEnergy or any
Subsidiary, other than inventory in the ordinary course of business, or (ii)
take any actions or omit to take any actions that have materially adversely
affected, or that might after the Closing Date materially adversely affect,
TecEnergy or any Subsidiary, including, but not limited to, any actions or
omissions pursuant to which TecEnergy or any Subsidiary might incur or become
subject to any liabilities, losses or other obligations of any kind after the
Closing Date (including, but not limited to, the failure to file any tax returns
or pay any taxes relating to TecEnergy or any Subsidiary).
3.19 ACCURACY OF INFORMATION FURNISHED BY CSRG. No statement or
information made or furnished by CSRG to BTSL or any of BTSL's representatives,
including those contained in this Agreement and the various Schedules attached
hereto and the other information and statements referred to herein and
previously furnished by TecEnergy, the Subsidiaries and/or CSRG, contains or
shall contain any untrue statement of a material fact or omits or shall omit any
material fact necessary to make the information contained therein not
misleading. CSRG has provided BTSL with true, accurate and complete copies of
all documents listed or described in the various Schedules attached hereto.
3.20 INFORMED BUSINESS DECISION BY CSRG. CSRG acknowledges and
agrees that it has taken all steps it has deemed necessary to investigate the
business, properties, financial condition and future prospects of TecEnergy and
the Subsidiaries, that it is making an informed business decision with respect
to the transfer of the TecEnergy Shares to BTSL and the other transactions
contemplated by this Agreement and that, subject to the terms of Section 4.3,
following the Closing, it will not have any ownership interest in, or any rights
whatsoever to participate in the business or affairs of, TecEnergy or any
Subsidiary.
3.21 SOLVENCY.
(a) As of the Closing Date, CSRG is a solvent entity and
the consummation of the transactions contemplated hereby will not render CSRG
insolvent.
(b) CSRG, by executing and delivering this Agreement or
any other document contemplated herein, or by entering into any of the other
transactions referred to in this Agreement, does not intend to nor will its
actions hinder, delay or defraud any Person to whom CSRG is or becomes indebted
or obligated to.
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(c) In the event that CSRG files a voluntary petition
seeking relief under Title 11 of the United States Code ("Bankruptcy Code"), or
that CSRG becomes the subject of an involuntary bankruptcy proceeding in which
an order for relief is entered, or otherwise becomes the subject of any petition
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, assignment for the benefit of creditors, or similar relief under
any present or future federal, state or foreign laws or statutes relating to
bankruptcy, insolvency, or other relief for debtors, or CSRG seeks, consents to
or acquiesces in the appointment of a trustee, receiver, conservator or
liquidator, CSRG agrees that BTSL will not be adequately protected and therefore
will be entitled to immediate relief from any automatic stay prescribed by
applicable federal, state or foreign laws or statutes including, but not limited
to, 11 U.S.C. ss. 362, to enforce its rights under this Agreement. This
entitlement shall be irrespective of any of the requirements of any federal,
state or foreign laws or statutes including, but not limited to, 11 U.S.C. ss.
362, and BTSL shall not be obligated to satisfy those requirements in order to
obtain relief from any stay.
(d) To the extent that BTSL has received, or will
receive, by virtue of this Agreement, "transfers" BTSL has given reasonably
equivalent value and the exchanges for such transfers were done
contemporaneously.
(e) Notwithstanding the provisions of this Section 3.21,
in the event any payments made to, obligations incurred to, or property
transferred by, CSRG to BTSL, directly or indirectly, or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside,
voided, and/or required to be repaid or transferred to a trustee, receiver or
any other party appointed under the Bankruptcy Code, any applicable federal,
state or foreign laws or statutes, common law or equitable cause, the obligation
or part thereof intended to be satisfied by CSRG under this Agreement shall be
reinstated or shall continue to be effective, as the case may be, and shall
remain fully enforceable pursuant to this Agreement and applicable law to the
extent that such payments or transfers are voided, set aside or required to be
disgorged.
3.22 NO COMMISSIONS. Neither TecEnergy nor any Subsidiary nor CSRG
has incurred any obligation for any finder's or broker's or agent's fees or
commissions or similar compensation in connection with this Agreement and the
transactions contemplated hereby.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 FURTHER ASSURANCES; COMPLIANCE WITH COVENANTS. Each party
shall execute and deliver such additional instruments and other documents and
shall take such further actions as may be necessary or appropriate to
effectuate, carry out and comply with all of the terms of this Agreement and the
transactions contemplated hereby. At the Closing, TecEnergy and CSRG covenant
and agree to deliver to BTSL the certificates, opinions and other documents
required to be delivered to BTSL pursuant to Article V, and BTSL covenants and
agrees to deliver to TecEnergy and CSRG the certificates and other documents
required to be delivered to TecEnergy and CSRG pursuant to Article VI.
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4.2 COOPERATION. Each of the parties agrees to cooperate with the
other in the preparation and filing of all forms, notifications, reports and
information required to be prepared or filed, or reasonably deemed advisable to
be prepared or filed, in connection with this Agreement and the transactions
contemplated hereby pursuant to any law, rule or regulation, including, but not
limited to, pursuant to federal, state or foreign securities laws, and to use
their respective best efforts to agree jointly on a method to overcome any
objections by any Governmental Authority to any such transactions. Immediately
following the Closing, BTSL and CSRG shall issue a joint press release regarding
the Agreement and the transactions contemplated hereby, the contents of which
shall be mutually agreed upon by BTSL and CSRG.
4.3 CERTAIN POST-CLOSING COVENANTS.
(a) At the Closing, BTSL and CRSG shall execute an Escrow
Agreement, substantially in the form of Exhibit A to this Agreement (the "Escrow
Agreement"), and BTSL shall deliver to the Escrow Agent stock certificates
representing 6,467,161 of the shares of CSRG Common Stock issued by CSRG in
connection with the 2001 Asset Purchase Agreement (the "Escrowed CSRG Shares").
Following the Closing, CSRG shall pay to BTSL a total of $245,000 in cash (the
"Cash Payment") via wire transfer of immediately available funds as follows: (i)
$5,000, within five days of the Closing Date; (ii) $40,000, within 15 days of
the Closing Date (the "Second Payment"); and (iii) $25,000 per week for each of
the eight weeks immediately following the week during which the Second Payment
is made, with each of such weekly payments due and payable on the same day of
the week that the Second Payment is made. Upon the payment by CSRG of the entire
Cash Payment in accordance with the terms of this Section 4.3(a), and subject to
the terms of the Escrow Agreement, the Escrow Agent shall deliver to CSRG
2,467,161 of the Escrowed CSRG Shares.
(b) At the Closing, CSRG shall receive from BTSL
5,252,839 warrants (collectively, the "BTSL Warrants"), evidenced by a
certificate (the "Certificate") substantially in the form of Exhibit B to this
Agreement. Upon the Exercise Date (as defined below), all of the BTSL Warrants
represented by the Certificate shall, in the aggregate, without any further
action on the part of the CSRG, entitle CSRG to receive and automatically be
converted into (i) such number of ordinary shares of TecEnergy such that CSRG
will own ten percent (10%) of the total outstanding ordinary shares of TecEnergy
owned by BTSL, or (ii) in the event that TecEnergy consummates a transaction
prior to or on the Exercise Date pursuant to which the ordinary shares of
TecEnergy become wholly-owned by a Public Company (as defined below) (a "Public
Company Transaction"), ten percent (10%) of the total consideration received by
BTSL solely in exchange for BTSL's ordinary shares of TecEnergy in the Public
Company Transaction; provided, however, that in the event that the foregoing
produces a result which would require the issuance or transfer of any fractional
securities, the number of securities which CSRG shall be entitled to receive
shall be rounded up to the next whole security so that no fractional securities
are issued or transferred. For the purposes of this Agreement, a "Public
Company" is an entity which has any class of capital stock registered under
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). For the purposes of this Agreement, the term "Exercise Date" means the
earlier of (A) the date which is 180 days following the Closing Date, or (B) the
date on which the Company consummates a Public Company Transaction. Prior to the
Exercise Date, BTSL covenants and agrees to cause TecEnergy to conduct its
operations in the
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ordinary course of business. BTSL agrees to take, and to cause TecEnergy to
take, any actions necessary in order to consummate the transactions contemplated
by this Section 4.3(b).
(c) During the 180-day period following the Closing Date,
BTSL will use its best efforts, within commercially reasonable standards, to
assist CSRG in obtaining possession of 140,000 shares of CSRG's Series 2001
Convertible Preferred Stock, issued by CSRG in connection with the 2001 Asset
Purchase Agreement.
(d) As of the Closing Date, BTSL represents that there
are outstanding options to purchase 1,000,000 shares of CSRG Common Stock issued
by BTSL (the "BTSL Options"). In the event that, at any time during the period
commencing on the Closing Date and ending on December 31, 2004 (the "Options
Exercise Period"), any of such BTSL Options are exercised by the holders
thereof, (i) the number of Escrowed CSRG Shares corresponding to such exercise
shall immediately be released from escrow directly to BTSL, and (ii) BTSL shall
forward to CSRG upon receipt the following amounts: (A) $.50 per Escrowed CSRG
Share released to BTSL pursuant to this Section 4.3(d), with respect to the
first 500,000 Escrowed CSRG Shares released; and (B) $.75 per Escrowed CSRG
Share released to BTSL pursuant to this Section 4.3(d), with respect to the
second 500,000 Escrowed CSRG Shares released. Notwithstanding the foregoing, in
no event shall the number of Escrowed CSRG Shares released to BTSL pursuant to
the exercise of the BTSL Options exceed 1,000,000 in the aggregate. CSRG
covenants and agrees that it will not, during the Options Exercise Period,
consummate a combination, reverse stock split or transaction having similar
effect, that will cause a greater than 4-to-1 reduction in the total shares of
CSRG Common Stock outstanding as of the Closing Date. Upon the earlier of (i)
the exercise of all of the BTSL Options and the delivery to BTSL of the
corresponding number of Escrowed CSRG Shares pursuant to this Section 4.3(d), or
(ii) the expiration of the Options Exercise Period (and subject to the terms of
Section 4.3(e) below), any Escrowed CSRG Shares thereafter remaining in escrow
shall immediately be released to CSRG. CSRG agrees to take any and all actions
reasonably necessary or advisable in order to effectuate the terms of this
Section 4.3(d) including, but not limited to, the registration on CSRG's books
and records of the Escrowed CSRG Shares in the names of the holders of the BTSL
Options (upon their exercise), and the cancellation and re-issuance of the
Escrowed CSRG Shares in such denominations and in such names as are reasonably
necessary or advisable. The transactions described in this Section 4.3(d) shall
be subject to, and further governed by, the terms of the Escrow Agreement.
(e) Notwithstanding anything to the contrary in this
Section 4.3, in the event that CSRG does not make the entire Cash Payment on the
terms set forth in Section 4.3(a), then, (i) all of the Escrowed CSRG Shares
shall immediately be released from escrow directly to BTSL, and (ii) CSRG shall
have no right to receive from BTSL any amounts pursuant to the exercise of the
BTSL Options as set forth in Section 4.3(b).
(f) All of the covenants in this Section 4.3 shall be
independent of the Closing and the Closing shall, upon taking place, be deemed
final, irrevocable and binding on the parties hereto regardless of whether any
of the covenants in this Section 4.3 are complied with. Except for the
challenging of any transactions consummated at or prior to the Closing which
shall be deemed final upon the Closing, a party shall have all remedies
available to it at law or equity for the breach by another party of any covenant
in this Section 4.3.
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(g) For a period of two years following the Closing Date,
CSRG shall take any and all actions necessary to make any shares of CSRG Common
Stock held by BTSL or any of its shareholders, employees, consultants or other
Affiliates, eligible for public resale pursuant to Rule 144 promulgated under
the Securities Act.
4.4 CONFIDENTIALITY; PUBLICITY. Except as may be required by law
or as otherwise permitted or expressly contemplated herein, no party hereto or
their respective Affiliates, employees, agents and representatives shall
disclose to any third party this Agreement or the subject matter or terms hereof
without the prior consent of the other parties hereto. No press release or other
public announcement related to this Agreement or the transactions contemplated
hereby shall be issued by any party hereto without the prior approval of the
other parties, except that CSRG and BTSL may make such public disclosure which
it believes in good faith to be required by law.
4.5 RETURN AND PRESERVATION OF CONFIDENTIAL INFORMATION. Prior to
the Closing, CSRG and its Affiliates have had access to the proprietary,
confidential business information of TecEnergy and each Subsidiary (the
"Proprietary Information"). Prior to or upon the Closing, CSRG agrees to
promptly return any and all Proprietary Information that is in hard copy or
digital format to BTSL. Following the Closing, unless otherwise compelled by a
court of competent jurisdiction, CSRG agrees not to, and to cause its Affiliates
not to, use or disclose the Proprietary Information to any third party other
than BTSL for any purpose.
4.6 CERTAIN TAX MATTERS. The parties agree that after the Closing,
BTSL shall prepare, or cause to be prepared, and file, or cause to be filed, all
Tax Returns (including any amendments to previously filed Tax Returns) for
TecEnergy and each Subsidiary for any period ending on or before the Closing.
After the Closing, CSRG shall provide BTSL with such information and records as
may be reasonably requested by BTSL in connection with the preparation of any
Tax Return or any audit or other proceeding relating to TecEnergy or any
Subsidiary.
4.7 INDEMNIFICATION. The provisions of the articles of
incorporation and bylaws of CSRG with respect to indemnification of directors
and officers in effect as of the Closing Date shall not be amended, repealed or
otherwise modified for a period of three years after the Closing Date in any
manner that would adversely affect the rights thereunder of individuals who at
any time prior to the Closing Date were directors or officers of CSRG, unless
such amendment, repeal or modification is required by law.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF BTSL
The obligations of BTSL to effect the transactions contemplated hereby
shall be subject to the fulfillment at or prior to the Closing of the following
conditions, any or all of which may be waived in whole or in part in writing by
BTSL:
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of CSRG contained in this
Agreement shall be
11
true and correct at and as of the Closing except that those representations and
warranties which address matters only as of a particular date shall remain true
and correct as of such date. CSRG shall have performed and complied with all of
its obligations required by this Agreement to be performed or complied with at
or prior to the Closing. CSRG shall have delivered to BTSL a certificate, dated
as of the Closing Date, duly signed, certifying that such representations and
warranties are true and correct and that all such obligations have been complied
with and performed.
5.2 CORPORATE CERTIFICATES. CSRG shall have delivered to BTSL (i)
copies of the articles of incorporation and bylaws of CSRG, (ii) copies of
resolutions adopted by the Board of Directors of CSRG authorizing the
transactions contemplated by this Agreement, and (iii) a certificate of good
standing of CSRG issued by the Secretary of State of the State of Florida as of
a date not more than 30 days prior to the Closing Date, certified in the case of
subsections (i) and (ii) of this Section, as of the Closing Date by the
Secretary of CSRG as being true, correct and complete.
5.3 RELEASES. CSRG shall have delivered to BTSL a release,
substantially in the form of Exhibit C to this Agreement, releasing any claims
of any nature that CSRG, or any of its officers, directors, employees,
consultants or other Affiliates, has, or may ever have had, against BTSL,
TecEnergy or any of the Subsidiaries, or any of their officers, directors,
employees, consultants or other Affiliates, including, but not limited to, any
claims arising out of or in connection with the 2001 Asset Purchase Agreement,
provided that such releases shall not cover any rights of CSRG against BTSL,
TecEnergy or any Subsidiary, or any of their officers, directors, employees,
consultants or other Affiliates, under this Agreement or any of the transactions
contemplated hereby.
5.4 OPINION OF COUNSEL. BTSL shall have received a legal opinion
from counsel for CSRG, dated as of the Closing Date, in a form reasonably
satisfactory to BTSL.
5.5 ESCROW AGREEMENT. BTSL and CSRG shall have executed the Escrow
Agreement substantially in the form of Exhibit A to this Agreement, and BTSL
shall have delivered to the Escrow Agent 6,467,161 of the shares of CSRG Common
Stock issued by CSRG in connection with the 2001 Asset Purchase Agreement, for
further disbursement in accordance with the terms of this Agreement and the
Escrow Agreement.
5.6 CONSENTS. CSRG shall have received consents to the
transactions contemplated hereby and waivers of rights to terminate or modify
any material rights or obligations of CSRG from any Person from whom such
consent or waiver is required under any Contract or instrument or who, as a
result of the transactions contemplated hereby, would have such rights to
terminate or modify such Contracts or instruments, either by the terms thereof
or as a matter of law.
5.7 NO ORDER, INJUNCTION OR ADVERSE LITIGATION. No court of
competent jurisdiction or other governmental body shall have issued or entered
any order or injunction restraining or prohibiting the transactions contemplated
hereby, which remains in effect at the time of the Closing. There shall not be
pending or threatened any action or proceeding by or before any court or other
governmental body which shall seek to restrain, prohibit, invalidate or
12
collect damages arising out of the transactions contemplated hereby, and which,
in the judgment of BTSL, in its discretion, makes it inadvisable to proceed with
the transactions contemplated hereby.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF
CSRG
The obligations of CSRG to effect the transactions contemplated hereby
shall be subject to the fulfillment at or prior to the Closing of the following
conditions, any or all of which may be waived in whole or in part in writing by
CSRG:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of BTSL contained in this
Agreement shall be true and correct at and as of the Closing except that those
representations and warranties which address matters only as of a particular
date shall remain true and correct as of such date. BTSL shall have performed
and complied with all of its obligations required by this Agreement to be
performed or complied with at or prior to the Closing. BTSL shall have delivered
to CSRG a certificate, dated as of the Closing Date, and signed by an officer,
certifying that such representations and warranties are true and correct and
that all such obligations have been complied with and performed.
6.2 RELEASES. BTSL shall have delivered to CSRG a release,
substantially in the form of Exhibit C to this Agreement, releasing any claims
of any nature that BTSL, or any of its officers, directors, employees,
consultants or other Affiliates, has, or may ever have had, against CSRG, or any
of its officers, directors, employees, consultants or other Affiliates,
including, but not limited to, any claims arising out of or in connection with
the 2001 Asset Purchase Agreement, provided that such releases shall not cover
any rights of BTSL against CSRG, or any of its officers, directors, employees,
consultants or other Affiliates, under this Agreement or any of the transactions
contemplated hereby.
6.3 OPINION OF COUNSEL. CSRG shall have received a legal opinion
from counsel for BTSL, dated as of the Closing Date, in a form reasonably
satisfactory to CSRG.
6.4 ESCROW AGREEMENT. BTSL and CSRG shall have executed the Escrow
Agreement substantially in the form of Exhibit A to this Agreement, and BTSL
shall have delivered to the Escrow Agent 6,467,161 of the shares of CSRG Common
Stock issued by CSRG in connection with the 2001 Asset Purchase Agreement, for
further disbursement in accordance with the terms of this Agreement and the
Escrow Agreement.
6.5 NO ORDER, INJUNCTION OR ADVERSE LITIGATION. No court of
competent jurisdiction or other governmental body shall have issued or entered
any order or injunction restraining or prohibiting the transactions contemplated
hereby, which remains in effect at the time of the Closing. There shall not be
pending or threatened any action or proceeding by or before any court or other
governmental body which shall seek to restrain, prohibit, invalidate or collect
damages arising out of the transactions contemplated hereby, and which, in the
judgment
13
of CSRG, in its discretion, makes it inadvisable to proceed with the
transactions contemplated hereby.
6.6 RESIGNATION. Xxxxxxx Xxxxxxx shall have resigned from his
position as a director of CSRG.
6.7 BTSL WARRANTS. BTSL will deliver to CSRG the BTSL Warrants,
substantially in the form of Exhibit B to this Agreement, further evidencing
CSRG's rights under Section 4.3(b) of this Agreement.
6.8 CONSENTS. BTSL shall have received consents to the
transactions contemplated hereby and waivers of rights to terminate or modify
any material rights or obligations of BTSL from any Person from whom such
consent or waiver is required under any Contract or instrument or who, as a
result of the transactions contemplated hereby, would have such rights to
terminate or modify such Contracts or instruments, either by the terms thereof
or as a matter of law.
ARTICLE VII
INDEMNIFICATION
7.1 AGREEMENT TO INDEMNIFY. Each party hereto (the "Indemnifying
Party") agrees to indemnify and hold the other party hereto (the "Indemnified
Party") harmless from and against the aggregate of all expenses, losses, costs,
deficiencies, liabilities and damages (including, without limitation, legal
counsel and paralegal fees and expenses) incurred or suffered by the Indemnified
Party (and/or its Affiliates) arising out of or resulting from (i) any breach of
a representation or warranty made by the Indemnifying Party in or pursuant to
any Transaction Document, (ii) any breach of the covenants, agreements or
obligations made by the Indemnifying Party in or pursuant to any Transaction
Document, (iii) any inaccuracy in any certificate delivered by the Indemnifying
Party pursuant to this Agreement, or (iv) solely with respect to an
indemnification of BTSL by CSRG, any Excluded Liability (collectively,
"Indemnifiable Damages"). Without limiting the generality of the foregoing, with
respect to the measurement of Indemnifiable Damages, the Indemnified Party shall
have the right to be put in the same pre-tax consolidated financial position as
it would have been in had each of the representations and warranties of the
Indemnifying Party hereunder been true and correct, had the covenants,
agreements and obligations of the Indemnifying Party hereunder been performed in
full, had the certificates been delivered hereunder by the Indemnifying Party
been accurate and had BTSL as an Indemnified Party not been held liable for any
Excluded Liability. Notwithstanding anything to the contrary in this Agreement,
no Indemnifiable Damages shall be recoverable by an Indemnified Party pursuant
to the provisions of this Section 7.1, and no claim therefor shall be asserted
for any purpose hereunder, unless and until the amount of such Indemnified
Party's Indemnifiable Damages equals or exceeds $10,000 in the aggregate, in
which case such Indemnified Party shall be entitled to seek the recovery of 100%
of its Indemnifiable Damages, including such $10,000.
7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made in the Transaction Documents or pursuant
thereto shall survive after the
14
Closing. Notwithstanding any knowledge of facts determined or determinable by
any party by investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other parties
contained in the Transaction Documents. Each representation, warranty, covenant
and agreement of the parties contained in the Transaction Documents is
independent of each other representation, warranty, covenant and agreement.
ARTICLE VIII
DEFINITIONS
8.1 DEFINED TERMS. As used herein, the following terms shall have
the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as
in effect on the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and treasury regulations promulgated thereunder.
"Contract" means any agreement, contract, lease, note,
mortgage, indenture, loan agreement, franchise agreement, covenant,
employment agreement, license, instrument, purchase and sales order,
commitment, undertaking, understanding or obligation, whether written
or oral, express or implied.
"Excluded Liability" shall mean: (i) any obligations and
liabilities of TecEnergy and any Subsidiary which arise from events or
circumstances occurring or existing prior to the Closing Date, absolute
or contingent, known or unknown, other than those liabilities or
obligations reflected on TecEnergy's most recent balance sheet prior to
the Closing Date delivered to BTSL; (ii) any liability or obligation of
TecEnergy or any Subsidiary with respect to, or arising out of, any
Employee Benefit Plan, executive deferred compensation plan, or any
other plans or arrangements for the benefit of any employees or
officers of TecEnergy or any Subsidiary; (iii) any liability or
obligation of TecEnergy or any Subsidiary to any Person claiming to
have a right to acquire any shares of capital stock or other securities
convertible into or exchangeable for any shares of capital stock of
TecEnergy or any Subsidiary; (iv) any liability or obligation relating
to the Taxes of CSRG; and (v) any Litigation Costs.
"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof, and any
entity or official exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Indebtedness" of any Person means all obligations of such
Person (i) which in accordance with applicable accounting rules should
be classified upon a balance sheet of such Person as indebtedness, (ii)
for borrowed money or purchase money financing which has been incurred
in connection with the acquisition of property or services, including
without limitation, prepayment or early termination penalties
associated with any of the foregoing, (iii) secured by any lien or
other charge upon property or assets
15
owned by such Person, even though such Person has not assumed or become
liable for the payment of such obligations, (iv) created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person, whether or not the rights
and remedies of the lender or lessor under such agreement in the event
of default are limited to repossession or sale of the property, and (v)
for remaining payments under any capitalized leases (as defined under
applicable accounting rules), non-competition agreements, severance
agreements or any other agreements made outside the ordinary course of
business.
"Knowledge" means, with respect to any Person, (i) the actual
knowledge of such Person, including, if that Person is an entity, the
actual knowledge of the directors, officers, employees or other legal
representatives of such Person, and (ii) the knowledge which that
Person, in its capacity as a prudent businessperson or shareholder,
should have obtained in the management of its business after making due
inquiry, and after exercising due diligence, with regard thereto.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, but not limited to,
any conditional sale or other title retention agreement, any lease in
the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code or comparable law
or any jurisdiction in connection with such mortgage, pledge, security
interest, encumbrance, lien or charge).
"Litigation Costs" shall mean any and all expenses, costs,
damages, liabilities, or obligations (including, without limitation,
fees and expenses of counsel) incurred in connection with any action,
suit (including, but not limited to, at the pre-trial, trial and
appellate levels), or other legal or administrative proceeding or
governmental investigation against CSRG, TecEnergy and/or any
Subsidiary arising as a result of events occurring or facts or
circumstances arising or existing on or prior to the Closing Date
(whether or not in the ordinary course of business).
"Material Adverse Change (or Effect)" means a change (or
effect), in the condition (financial or otherwise), properties, assets,
liabilities, rights, obligations, operations, business or prospects
which change (or effect) individually or in the aggregate, is
materially adverse to such condition, properties, assets, liabilities,
rights, obligations, operations, business or prospects.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, estate,
trust, unincorporated association, joint venture, Governmental
Authority or other person, of whatever nature.
"Tax" or "Taxes" means, with respect to any Person, any
federal, state, local or foreign net income, gross income, gross
receipts, sales, use, ad valorem, value-added, capital, unitary,
franchise, profits, withholding, payroll, employment, excise,
severance, stamp, transfer, occupation, premium, property or windfall
profit tax or other tax of any kind whatsoever, together with any
interest or penalty, imposed by any taxing authority, on such Person.
16
"Tax Returns" mean any returns, reports, forms or other
information filed or required to be filed with the Internal Revenue
Service or any other federal, foreign, state local or provincial taxing
authority with respect to any Tax, including any claim for refund of
Taxes and any amendments or supplements of any of the foregoing.
"Transaction Documents" means, with respect to any party to
this Agreement, this Agreement and any other documents which such party
executes and delivers pursuant to or in connection with this Agreement
and the transactions contemplated hereby.
8.2 OTHER DEFINITIONAL PROVISIONS. All terms defined in this
Agreement shall have the defined meanings when used in any certificates, reports
or other documents made or delivered pursuant hereto or thereto, unless the
context otherwise requires. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa. All matters of an
accounting nature in connection with this Agreement and the transactions
contemplated hereby shall be determined in accordance with applicable accounting
rules applied on a basis consistent with prior periods, where applicable. As
used herein, the neuter gender shall also denote the masculine and feminine, and
the masculine gender shall also denote the neuter and feminine, where the
context so permits.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), or guaranteed overnight
delivery, to the following addresses (or to such other addresses which such
party shall designate in writing to the other party):
(a) IF TO BTSL TO:
BTSL Technologies Limited
Xxxxx 0000 Xxxxx Xxxxx
Xxxxxx Xxxxx Xxxxxx
XXXX
Xxxxxx 0
Ireland
Attn: Xxxxxxx Xxxxxxx
Telephone: (000) 000 000 000
WITH A COPY TO:
Akerman Senterfitt
Xxx Xxxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxx, XX 00000-0000
Attn: J. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
17
(b) IF TO CSRG TO:
Consolidated Resources Group, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
WITH A COPY TO:
Xxxx X. Xxxxxxxx, Esq.
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Notice shall be deemed given on the date delivered (or the date of
refusal of delivery).
9.2 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement
(including the exhibits and schedules attached hereto) and all other documents
delivered pursuant to and in connection with this Agreement contain the entire
understanding of the parties in respect of its subject matter and supersede all
prior agreements and understandings (oral or written) between or among the
parties with respect to such subject matter. The parties agree that prior drafts
of this Agreement shall not be deemed to provide any evidence as to the meaning
of any provision hereof or the intent of the parties with respect thereto. The
exhibits and schedules constitute a part hereof as though set forth in full
above. This Agreement is not intended to confer upon any Person, other than the
parties hereto, any rights or remedies hereunder.
9.3 EXPENSES. Except as otherwise provided herein, the parties
shall pay their own fees and expenses, including their own counsel fees,
incurred in connection with this Agreement or any transaction contemplated
hereby. The fees and expenses incurred by CSRG in connection with this Agreement
and the transactions contemplated hereby shall be paid from CSRG's own funds and
not from the properties or assets of TecEnergy or any Subsidiary, including, but
not limited to, any legal, accounting, tax consulting or financial advisory
fees, transfer fees, government filing fees and the cost of title insurance and
surveys.
9.4 AMENDMENT; WAIVER. This Agreement may not be modified,
amended, supplemented, canceled or discharged, except by written instrument
executed by all parties. No failure to exercise, and no delay in exercising, any
right, power or privilege under this Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude the exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any waiver be
implied from any course of dealing between the parties. No extension of time for
performance of any obligations or other acts hereunder or under any other
agreement shall be deemed to be an extension of the time for performance of any
other obligations or any other acts. The rights and remedies of the parties
18
under this Agreement are in addition to all other rights and remedies, at law or
equity, that they may have against each other.
9.5 BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other Person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned by any of the parties hereto without the prior
written consent of the other parties hereto.
9.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument. Executed counterparts of this Agreement
and the other Transaction Documents delivered via facsimile transmission shall
be binding on the parties thereto and have the same force and effect as if they
were executed and delivered in original form.
9.7 INTERPRETATION. When a reference is made in this Agreement to
an article, section, paragraph, clause, schedule or exhibit, such reference
shall be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or the
schedules. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." Time shall be of the essence in this Agreement.
9.8 CONSTRUCTION. The parties agree and acknowledge that they have
jointly participated in the negotiation and drafting of this Agreement. In the
event of an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no
presumptions or burdens of proof shall arise favoring any party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to refer
to all rules and regulations promulgated thereunder, unless the context requires
otherwise. If any party has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the party has not
breached shall not detract from or mitigate the fact that the party is in breach
of the first representation, warranty, or covenant.
9.9 GOVERNING LAW; SEVERABILITY. This Agreement shall be construed
in accordance with and governed for all purposes by the laws of the State of
Florida applicable to contracts executed and to be wholly performed within such
State, without regard to any conflicts of laws principles. If any word, phrase,
sentence, clause, section, subsection or provision of this Agreement as applied
to any party or to any circumstance is adjudged by a court to be invalid or
unenforceable, the same will in no way affect any other circumstance or the
validity or enforceability of any other word, phrase, sentence, clause, section,
subsection or provision of this Agreement. If any provision of this Agreement,
or any part thereof, is held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration
19
and/or area of such provision, and/or to delete specific words or phrases, and
in its reduced form, such provision shall then be enforceable and shall be
enforced.
9.10 ARM'S LENGTH NEGOTIATIONS. Each party herein expressly
represents and warrants to all other parties hereto that (a) before executing
this Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party has
had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement; (d) said party has acted voluntarily and of its own
free will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
BTSL TECHNOLOGIES LIMITED, an Irish
limited liability company
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
CONSOLIDATED RESOURCES GROUP, INC.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
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