EXCHANGE AGREEMENT
Between
ASCONI CORPORATION
(formerly Grand Slam Treasures, Inc.)
ASCONI HOLDINGS LIMITED
and
ASCONI LTD.
Dated: April 12, 2001
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ASCONI CORPORATION
1.01 Organization.................................1
1.02 Capitalization...............................1
1.03 Financial Statements.........................2
1.04 Information..................................2
1.05 Options and Warrants.........................2
1.06 Absence of Certain Changes or Events.........2
1.07 Litigation and Proceedings...................3
1.08 Contracts....................................3
1.09 Material Contract Defaults...................4
1.10 No Conflict With Other Instruments...........4
1.11 Governmental Authorizations..................4
1.12 Compliance With Laws and Regulations.........4
1.13 Approval of Agreement........................4
1.14 Material Transactions or Affiliations........4
1.15 Asconi Corporation Schedules.................5
1.16 Payroll Taxes and Corporate Taxes ...........6
1.17 Valid Obligation.............................6
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ASCONI HOLDINGS
LIMITED
2.01 Organization.................................6
2.02 Capitalization...............................6
2.03 Subsidiaries and Predecessor Corporations....6
2.04 Filings; Books and Records...................6
2.05 Information..................................6
2.06 Options and Warrants.........................7
2.07 Litigation and Proceedings...................7
2.08 Contracts....................................7
2.09 No Conflict With Other Instruments...........8
2.10 Governmental Authorizations..................8
2.11 Compliance With Laws and Regulations.........8
2.12 Approval of Agreement........................8
2.13 Continuity of Business Enterprises...........8
2.14 Asconi Holdings Limited Schedules............8
2.15 Valid Obligation.............................9
ARTICLE III REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ASCONI LTD.
3.01 Organization.................................6
3.02 Capitalization...............................6
3.03 Subsidiaries and Predecessor Corporations....6
3.04 Filings; Books and Records...................6
3.05 Information..................................6
3.06 Options and Warrants.........................7
3.07 Absence of Certain Changes or Events.........
3.08 Title and Related Matters....................
3.09 Litigation and Proceedings...................7
3.10 Contracts....................................7
3.11 Material Contract Defaults...................
3.12 No Conflict With Other Instruments...........8
3.13 Governmental Authorizations..................8
3.14 Compliance With Laws and Regulations.........8
3.15 Approval of Agreement........................8
3.16 Material Transactions or Affiliations........
3.17 Labor Relations..............................
3.18 Asconi Ltd. Schedules........................8
3.19 Valid Obligation.............................9
ARTICLE IV PLAN OF EXCHANGE
4.01 The Exchange.................................9
4.02 Closing......................................9
4.03 Closing Events...............................9
4.04 Termination..................................9
ARTICLE V SPECIAL COVENANTS
5.01 Access to Properties and Records............10
5.02 Delivery of Books and Records...............11
5.03 Third Party Consents and Certificates.......11
5.04 Consent of Asconi Corporation Shareholders..11
5.05 Actions Prior to Closing....................11
5.06 Sales Under Rule 144 or 145, If Applicable..11
5.07 Indemnification.............................12
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND HOLDING
6.01 Accuracy of Representations and Performance
of Covenants................................12
6.02 Officer's Certificates......................12
6.03 No Material Adverse Change..................12
6.04 Approval by Asconi Corporation Shareholders.12
6.05 No Governmental Prohibitions................13
6.06 Consents....................................13
6.07 Other Items.................................13
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF Asconi Corporation AND
THE Asconi Corporation SHAREHOLDERS
7.01 Accuracy of Representations and Performance of
Covenants..................................13
7.02 Officer's Certificate......................13
7.03 No Governmental Prohibition................13
7.04 Consents...................................13
7.05 Other Items................................14
ARTICLE VIII MISCELLANEOUS
8.01 Brokers.................................14
8.02 Governing Law...........................14
8.03 Notices.................................14
8.04 Attorney's Fees.........................14
8.05 Confidentiality.........................14
8.06 Public Announcements and Filings........15
8.07 Schedules; Knowledge....................15
8.08 Third Party Beneficiaries...............15
8.09 Expenses................................15
8.10 Entire Agreement........................15
8.11 Survival; Termination...................15
8.12 Counterparts............................15
8.13 Amendment or Waiver.....................15
8.14 Best Efforts............................15
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this 12th day of April 2001, by and between ASCONI
CORPORTIAON, a Nevada corporation (hereinafter referred to as "Parent") ASCONI
HOLDINGS LIMITED, a British Virgin Islands corporation (hereinafter referred to
as "Holdings") and ASCONI LTD., a Republic of Moldova corporation (hereinafter
referred to as "Asconi"), (collectively the three companies are hereinafter
referred to as the "Parties") upon the following premises:
Premises
WHEREAS, Parent (formerly Grand Slam Treasures, Inc.), is a publicly held
corporation organized under the laws of the State of Nevada;
WHEREAS, Holdings is a privately held corporation organized under the laws
of the British Virgin Islands;
WHEREAS, Asconi Ltd. is a privately held corporation organized under the
laws of the Republic of Moldova;
WHEREAS, Holdings desires to acquire 100% of the issued and outstanding
securities of Asconi Corporation in exchange for the issuance of 12,600,000
shares of Parent (the "Exchange") and Asconi agrees to use its best efforts to
cause its shareholders (the "Asconi Shareholders") to exchange their securities
of Asconi on the terms described herein; and
WHEREAS, the Parties desire to set forth the terms of the Exchange, which
is intended to constitute a tax-free reorganization pursuant to the provisions
of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the Parties to be derived herefrom, it is hereby agreed as follows:
Agreement
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF PARENT CORPORATION
As an inducement to, and to obtain the reliance of Asconi except as set
forth on the Parent Schedules (as hereinafter defined), Parent represents and
warrants as follows:
Section 1.01 Organization. Parent is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the Parent
Schedules are complete and correct copies of the restated articles of
incorporation, and bylaws of Parent as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of Parent's
articles of incorporation or bylaws. Parent has taken all actions required by
law, its articles of incorporation, or otherwise to authorize the execution and
delivery of this Agreement. Parent has full power, authority, and legal right
and has taken all action required by law, its articles of incorporation, and
otherwise to consummate the transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of Parent
consists of 100,000,000 shares of common stock, $.001 par value per share, of
which 330,000 shares are currently issued and outstanding and 5,000,000 shares
of preferred stock, $.001 par value of which none are issued and outstanding.
All issued and outstanding shares are legally issued, fully paid, and
non-assessable and not issued in violation of the preemptive or other rights of
any person.
Section 1.03 Financial Statements.
--------------------
(a) Included in the Parent Schedules is the unaudited balance sheet and
the related statements of operations of Parent as of December 31, 2000
and the audited financial statements as of June 30, 2000.
(b) All such financial statements have been prepared in accordance with
generally accepted accounting principles. The Parent balance sheet
presents a true and fair view as of the date of such balance sheet of
the financial condition of Parent. Parent did not have, as of the dates
of such balance sheets, except as and to the extent reflected or
reserved against therein, any liabilities or obligations (absolute or
contingent) which should be reflected in the balance sheets or the
notes thereto, prepared in accordance with generally accepted
accounting principles, and all assets reflected therein are properly
reported and present fairly the value of the assets of Parent in
accordance with generally accepted accounting principles.
(c) Parent has no liabilities with respect to the payment of any
federal, state, county,local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(d) Parent has filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the
date hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate,
are immaterial.
(e) The books and records, financial and otherwise, of Parent are in
all material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
(f) All of Parent's assets are reflected on its financial statements,
and, except as set forth in the Parent Schedules or the financial
statements of Parent or the notes thereto, Parent has no material
liabilities, direct or indirect, matured or unmatured, contingent or
otherwise.
Section 1.04 Information. The information concerning Parent set forth
in this Agreement and in the Parent Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
Parent has fully disclosed in writing to Asconi (through this Agreement or the
Parent Schedules) all information relating to matters involving Parent or its
assets or its present or past operations or activities which (i) indicated or
may indicate, in the aggregate, the existence of a greater than $25,000
liability or diminution in value, (ii) have led or may lead to a competitive
disadvantage on the part of Parent or (iii) either alone or in aggregation with
other information covered by this Section, otherwise have led or may lead to a
material adverse effect on the transactions contemplated herein or on Parent,
its assets, or its operations or activities as presently conducted or as
contemplated to be conducted after the Closing , including, but not limited to,
information relating to governmental, employee, environmental, litigation and
securities matters and transactions with affiliates.
Section 1.05 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued Parent common stock, except options, warrants, calls or commitments, if
any, to which Parent is not a party and by which it is not bound.
Section 1.06 Absence of Certain Changes or Events. Except as set forth
in this Agreement or the Parent Schedules, since December 31, 2000 there has
been a change in the business and assets of Parent as is required to the best
knowledge of Parent, Parent has not become subject to any law or regulation
which materially and adversely affects, or in the future may adversely affect
the business, operations, properties, assets, or condition of Parent.
Section 1.07 Litigation and Proceedings. Except as set forth in the
Parent Schedules, there are no actions, suits, proceedings, or investigations
pending or, to the knowledge of Parent after reasonable investigation,
threatened by or against Parent or affecting Parent or its properties, at law or
in equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. Parent does not have
any knowledge of any material default on its part with respect to any judgment,
order, injunction, decree, award, rule, or regulation of any court, arbitrator,
or governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a default.
Section 1.08 Contracts.
---------
(a) Except as included or described in the Parent Schedules, there are
no "material" contracts, agreements, franchises, license agreements,
debt instruments or other commitments to which Parent is a party or by
which it or any of its assets, products, technology, or properties are
bound other than those incurred in the ordinary course of business (as
used in this Agreement, a "material" contract, agreement, franchise,
license agreement, debt instrument or commitment is one which (i) will
remain in effect for more than six (6) months after the date of this
Agreement or (ii) involves aggregate obligations of at least
twenty-five thousand dollars ($25,000));
(b) All contracts, agreements, franchises, license agreements, and
other commitments to which Parent is a party or by which its properties
are bound and which are material to the operations of Parent taken as a
whole are valid and enforceable by Parent in all respects, except as
limited by bankruptcy and insolvency laws and by other laws affecting
the rights of creditors generally;
(c) Parent is not a party to or bound by, and the properties of Parent
are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Parent; and
(d) Except as included or described in the Parent Schedules or
reflected in the most recent Parent balance sheet, Parent is not a
party to any oral or written (i) contract for the employment of any
officer or employee which is not terminable on 30 days, or less notice;
(ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, (iii) agreement,
contract, or indenture relating to the borrowing of money, (iv)
guaranty of any obligation, other than one on which Parent is a primary
obligor, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations
which, in the aggregate do not exceed more than one year or providing
for payments in excess of $25,000 in the aggregate; (vi) collective
bargaining agreement; or (vii) agreement with any present or former
officer or director of Parent.
Section 1.09 Material Contract Defaults. Parent is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Parent and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Parent has not taken adequate steps to prevent
such a default from occurring.
Section 1.10 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Parent is a party or to which any of its
properties or operations are subject.
Section 1.11 Governmental Authorizations. Except as set forth in the
Parent Schedules, Parent has all licenses, franchises, permits, and other
governmental authorizations that are legally required to enable it to conduct
its business in all material respects as conducted on the date hereof. Except
for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Parent of this
Agreement and the consummation by Parent of the transactions contemplated
hereby.
Section 1.12 Compliance With Laws and Regulations. Except as set forth
in the Parent Schedules, to the best of its knowledge Parent has complied with
all applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations, properties,
assets, or condition of Parent, or except to the extent that noncompliance would
not result in the occurrence of any material liability for Parent.
Section 1.13 Approval of Agreement. The board of directors of Parent
has authorized the execution and delivery of this Agreement by Parent and has
approved this Agreement and the transactions contemplated hereby, and will
recommend to the Parent Shareholders that the Exchange be accepted by them.
Section 1.14 Material Transactions or Affiliations. Set forth in the
Parent Schedules is a description of every contract, agreement, or arrangement
between Parent and any predecessor and any person who was at the time of such
contract, agreement, or arrangement an officer, director, or person owning of
record, or known by Parent to own beneficially, 5% or more of the issued and
outstanding common stock of Parent and which is to be performed in whole or in
part after the date hereof or which was entered into not more than three years
prior to the date hereof. Except as disclosed in the Parent Schedules or
otherwise disclosed herein, no officer, director, or 5% shareholder of Parent
has, or has had since inception of Parent, any known interest, direct or
indirect, in any transaction with Parent which was material to the business of
Parent. There are no commitments by Parent, whether written or oral, to lend any
funds, or to borrow any money from, or enter into any other transaction with,
any such affiliated person.
Section 1.15 Parent Schedules. Parent has delivered to Asconi the following
schedules, which are collectively referred to as the "Parent Schedules" and
which consist of separate schedules dated as of the date of execution of this
Agreement, all certified by the chief executive officer of Parent as complete,
true, and correct as of the date of this Agreement in all material respects:
(a) a schedule containing complete and correct copies of the articles
of incorporation, and bylaws of Parent in effect as of the date of
this Agreement;
(b) a schedule containing the financial statements of Parent
identified in paragraph 1.03(a);
(c) copies of all licenses, permits, and other governmental
authorizations (or requests or applications therefor) pursuant to
which Parent carries on or proposes to carry on its business (except
those which, in the aggregate, are immaterial to the present or
proposed business of Parent);
(d) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Parent
Schedules by Sections 1.01 through 1.14.
Parent shall cause the Parent Schedules and the instruments and data
delivered to Asconi Holdings Limited hereunder to be promptly updated after the
date hereof up to and including the Closing .
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by Parent. Parent shall
have until April 30, 2001 to provide such schedules. If Parent cannot or fails
to do so, or if Asconi Holdings Limited acting reasonably finds any such
schedules or updates provided after the date hereof to be unacceptable according
to the criteria set forth below, Asconi may terminate this Agreement by giving
written notice to Parent within five (5) days after the schedules or updates
were due to be produced or were provided. For purposes of the foregoing, Asconi
may consider a disclosure in the Parent Schedules to be "unacceptable" only if
that item would have a material adverse impact on the financial statements
listed in Section 1.03(a), taken as a whole.
Section 1.16 Payroll Taxes and Corporate Taxes. All of the payroll taxes
and corporate taxes owed by Parent up to the date of Closing shall remain the
responsibility of Parent.
Section 1.17 Valid Obligation. This Agreement and all agreements and other
documents executed by Parent in connection herewith constitute the valid and
binding obligation of Parent, enforceable in accordance with its or their terms,
except as may be limited by bankruptcy, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefor may be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ASCONI HOLDINGS LIMITED
As an inducement to, and to obtain the reliance of Asconi and the Asconi
Shareholders, except as set forth in the Holdings Schedules (as hereinafter
defined), Holdings represents and warrants as follows:
Section 2.01 Organization. Holdings is a corporation duly organized,
validly existing, and in good standing under the laws of the British Virgin
Islands and has the corporate power and is duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances, and
orders of public authorities to own all of its properties and assets, to carry
on its business in all material respects as it is now being conducted, and
except where failure to be so qualified would not have a material adverse effect
on its business, there is no jurisdiction in which it is not qualified in which
the character and location of the assets owned by it or the nature of the
business transacted by it requires qualification. Included in the Holdings
Schedules are complete and correct copies of the Memorandum and Articles of
Association of Holdings as in effect on the date hereof. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of Holding's Memorandum and
Articles of Association. Holdings has taken all action required by law, its
Memorandum and Articles of Association, or otherwise to authorize the execution
and delivery of this Agreement, and Holdings has full power, authority, and
legal right and has taken all action required by law, its Memorandum and
Articles of Association, or otherwise to consummate the transactions herein
contemplated.
Section 2.02 Capitalization. Holding's authorized capitalization consists
of 50,000 shares of common stock, $1.00 par value of which 1,000 shares are
issued and outstanding. All issued and outstanding shares are legally issued,
fully paid, and non-assessable and not issued in violation of the preemptive or
other rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. Holdings does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 2.03. For purposes hereinafter, the term "Holdings" also
includes those subsidiaries, if any, set forth on Schedule 2.03.
Section 2.04 Filings: Books and Records. The books and records, financial
and otherwise, of Holdings are in all material aspects complete and correct and
have been maintained in accordance with good business and accounting practices.
Section 2.05 Information. The information concerning Holdings set forth in
this Agreement and the Holdings Schedules is complete and accurate in all
material respects and does not contain any untrue statements of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading.
Section 2.06 Options or Warrants. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and unissued
stock of Asconi Holdings Limited, except as described in Schedule 2.06 (the
"Existing Rights").
Section 2.07 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or, to the knowledge Asconi Holdings
Limited after reasonable investigation, threatened by or against Asconi Holdings
Limited or affecting Asconi Holdings Limited or its properties, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind except as disclosed in
Schedule 2.07. Asconi Holdings Limited has no knowledge of any default on its
part with respect to any judgement, order, writ, injunction, decree, award, rule
or regulation of any court, arbitrator, or governmental agency or
instrumentality or any circumstance which after reasonable investigation would
result in the discovery of such default.
Section 2.08 Contracts.
---------
(a) Asconi Holdings Limited is not a party to, and its assets, are not
bound by, any material contract, franchise, license agreement, agreement,
debt instrument or other commitments whether such agreement is in writing
or oral, except as disclosed in Schedule 2.08.
(b) Holdings is not a party to or bound by, and the properties of
Holdings are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any judgment,
order, writ, injunction, decree, or award which materially and adversely
affects, the business operations, properties, assets, or condition of
Holdings.
Section 2.09 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Holdings is a party or to which any of its assets or operations are subject.
Section 2.10 Governmental Authorizations. Holdings has all licenses,
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Holdings of this Agreement and the consummation by Holdings of
the transactions contemplated hereby.
Section 2.11 Compliance With Laws and Regulations. To the best of its
knowledge, Holdings has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Holdings or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 2.12 Approval of Agreement. The board of directors of Holdings has
authorized the execution and delivery of this Agreement by Holdings and has
approved this Agreement and the transactions contemplated hereby.
Section 2.13 Continuity of Business Enterprises. Holdings has no
commitment or present intention to liquidate Asconi or sell or otherwise dispose
of a material portion of Asconi's business or assets following the consummation
of the transactions contemplated hereby.
Section 2.14 Asconi Holdings Limited Schedules. Holdings has delivered
to Asconi the following schedules, which are collectively referred to as the
"Holdings Schedules" and which consist of separate schedules, which are dated
the date of this Agreement, all certified by the chief executive officer of
Holdings to be complete, true, and accurate in all material respects as of the
date of this Agreement:
(a) a schedule containing complete and accurate copies of the
Memorandum and Articles of Association of Holdings as in effect as of the
date of this Agreement;
(b) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Holdings
Schedules by Sections 2.01 through 2.13.
Holdings shall cause the Holdings Schedules and the instruments and
data delivered to Asconi hereunder to be promptly updated after the date hereof
up to and including the Closing .
Section 2.15 Valid Obligation. This Agreement and all agreements and
other documents executed by Holdings in connection herewith constitute the valid
and binding obligation of Holdings, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ASCONI LTD.
As an inducement to, and to obtain the reliance of Parent except as set
forth in the Asconi Schedules (as hereinafter defined), Asconi represents and
warrants as follows:
Section 3.01 Organization. Asconi is a corporation duly organized,
validly existing, and in good standing under the laws of the Republic of Moldova
and has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on its
business in all material respects as it is now being conducted, and except where
failure to be so qualified would not have a material adverse effect on its
business, there is no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. Included in the Asconi Schedules are
complete and correct copies of the Charter of Asconi as in effect on the date
hereof. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of Asconi's Charter. Asconi has taken all action required by law, its
Charter, or otherwise to authorize the execution and delivery of this Agreement,
and Asconi has full power, authority, and legal right and has taken all action
required by law, its Charter, or otherwise to consummate the transactions herein
contemplated.
Section 3.02 Capitalization. Asconi's authorized capital of Asconi is
5,400 Lei of which 5,400 Lei has been issued and is outstanding. All issued and
outstanding shares are legally issued, fully paid, and non-assessable and not
issued in violation of the preemptive or other rights of any person.
Section 3.03 Subsidiaries and Predecessor Corporations. Asconi does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 3.03. For purposes hereinafter, the term "Asconi" also
includes those subsidiaries, if any, set forth on Schedule 3.03.
Section 3.04 Filings: Books and Records. The books and records,
financial and otherwise, of Asconi are in all material aspects complete and
correct and have been maintained in accordance with good business and accounting
practices.
Section 3.05 Information. The information concerning Asconi set forth in
this Agreement and the Asconi Schedules is complete and accurate in all material
respects and does not contain any untrue statements of a material fact or omit
to state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 3.06 Options or Warrants. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and unissued
stock of Asconi except as described in Schedule 3.06 (the "Existing Rights").
Section 3.07 Absence of Certain Changes or Events. Except as set forth in
this Agreement or the Asconi Schedules, since December 31, 2000.
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of Asconi or (ii)
any damage, destruction, or loss to Asconi (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of Asconi;
(b) to the best knowledge of Asconi, Asconi has not become subject to
any law or regulation which materially and adversely affects, or in the
future may adversely affect the business, operations, properties, assets,
or condition of Parent.
Section 3.08 Title and Related Matters. Asconi has good and marketable
title to all of its properties, inventory, interests in properties, and assets,
real and personal, which are reflected in the most recent Asconi balance sheet
or acquired after that date (except properties, inventory, interests in
properties, and assets sold or otherwise disposed of since such date in the
ordinary course of business) free and clear of all liens, pledges, charges, or
encumbrances except (a) statutory liens or claims not yet delinquent; (b) such
imperfections of title and easements as do not and will not materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties; and (c) as described in the Asconi Schedules.
Except as set forth in the Asconi Schedules, Asconi owns, free and clear of any
liens, claims, encumbrances, royalty interests, or other restrictions or
limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying technology and data, and all procedures,
techniques, marketing plans, business plans, methods of management, or other
information utilized in connection with Asconi's business. Except as set forth
in the Asconi Schedules, no third party has any right to, and Asconi has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
propriety techniques, trademarks, service marks, trade names, or copyrights
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse effect on the
business, operations, financial condition, income, or business prospects of
Asconi or any material portion of its properties, assets, or rights.
Section 3.09 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or, to the knowledge Asconi after
reasonable investigation, threatened by or against Asconi or affecting Asconi or
its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of any
kind except as disclosed in Schedule 3.09. Asconi has no knowledge of any
default on its part with respect to any judgement, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator, or governmental
agency or instrumentality or any circumstance which after reasonable
investigation would result in the discovery of such default.
Section 3.10 Contracts.
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(a) Asconi is not a party to, and its assets, are not bound by, any
material contract, franchise, license agreement, agreement, debt
instrument or other commitments whether such agreement is in writing or
oral, except as disclosed in Schedule 3.10.
(b) Holdings is not a party to or bound by, and the properties of
Asconi are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Asconi.
Section 3.11 Material Contract Defaults. Asconi is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Asconi and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Asconi has not taken adequate steps to prevent
such a default from occurring.
Section 3.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Asconi is a party or to which any of its assets or operations are subject.
Section 3.13 Governmental Authorizations. Asconi has all licenses,
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Asconi of this Agreement and the consummation by Asconi of the
transactions contemplated hereby.
Section 3.14 Compliance With Laws and Regulations. To the best of its
knowledge, Asconi has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Asconi or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 3.15 Approval of Agreement. The board of directors of Asconi
has authorized the execution and delivery of this Agreement by Asconi and has
approved this Agreement and the transactions contemplated hereby.
Section 3.16 Material Transactions or Affiliations. Set forth in the
Asconi Schedules is a description of every contract, agreement, or arrangement
between Asconi and any predecessor and any person who was at the time of such
contract, agreement, or arrangement an officer, director, or person owning of
record, or known by Asconi to own beneficially, 5% or more of the issued and
outstanding common stock of Asconi and which is to be performed in whole or in
part after the date hereof or which was entered into not more than three years
prior to the date hereof. Except as disclosed in the Asconi Schedules or
otherwise disclosed herein, no officer, director, or 5% shareholder of Asconi
has, or has had since inception of Asconi any known interest, direct or
indirect, in any transaction with Asconi which was material to the business of
Asconi. There are no commitments by Parent, whether written or oral, to lend any
funds, or to borrow any money from, or enter into any other transaction with,
any such affiliated person.
Section 3.17 Labor Relations. Asconi has not had work stoppage
resulting from labor problems. To the knowledge of Asconi no union or other
collective bargaining organization is organizing or attempting to organize any
employee of Waterford Sterling.
Section 3.18 Asconi Ltd Schedules. Asconi has delivered to Parent the
following schedules, which are collectively referred to as the "Asconi
Schedules" and which consist of separate schedules, which are dated the date of
this Agreement, all certified by the chief executive officer of Asconi to be
complete, true, and accurate in all material respects as of the date of this
Agreement:
(a) a schedule containing complete and accurate copies of the Charter
of Asconi as in effect as of the date of this Agreement;
(b) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Asconi
Schedules by Sections 3.01 through 3.17.
Asconi shall cause the Asconi Schedules and the instruments and data
delivered to Parent hereunder to be promptly updated after the date hereof up to
and including the Closing .
Section 3.19 Valid Obligation. This Agreement and all agreements and
other documents executed by Asconi in connection herewith constitute the valid
and binding obligation of Asconi enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE IV
PLAN OF EXCHANGE
Section 4.01 The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing (as defined in Section 4.02), Parent
shall issue 12,600,000 shares of Parent common stock to Parent to obtain 100% of
the stock and ownership of Asconi which shall constitute 70% of the post SB-2
issued and outstanding shares of Parent Common Stock. Each Shareholder of Asconi
who shall elect to accept the exchange offer described herein (the "Accepting
Shareholders"), shall assign, transfer and deliver, free and clear of all liens,
pledges, encumbrances, charges, restrictions or known claims of any kind,
nature, or description, the number of shares of common stock of Asconi; the
objective of such Exchange being the acquisition by Parent of 100% of the issued
and outstanding common stock of Asconi. In the event the Exchange is
consummated, as provided in Section 4.05, but less than 100% of the common stock
of is delivered to Parent, the number of shares issuable by Parent to the Asconi
Shareholders as described above shall be reduced proportionately. At the
Closing, each Asconi Shareholders shall, on surrender of his certificate or
certificates representing such Asconi shares to Parent or its registrar or
transfer agent, be entitled to receive a certificate or certificates evidencing
his proportionate interest in the Parent shares. Upon consummation of the
transaction contemplated herein, assuming participation by all of the Asconi
Shareholders, 70% of the shares of capital stock of Parent after the SB-2
Registration shall be held by Asconi Shareholders.
Section 4.02 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall take place at a mutually agreeable time and
place.
Section 4.03 Closing Events. At the Closing, Parent and each of the
Accepting Shareholders shall execute, acknowledge, and deliver (or shall ensure
to be executed, acknowledged, and delivered) any and all certificates, opinions,
financial statements, schedules, agreements, resolutions, rulings or other
instruments required by this Agreement to be so delivered at or prior to the
Closing, together with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby. This Agreement shall become
effective as of Closing.
Section 4.04 Termination.
(a) This Agreement may be terminated by the board of directors of either
Parent or Holdings at any time prior to the Closing if:
(i) there shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this Agreement and
which, in the judgement of such board of directors, made in good faith and
based upon the advice of its legal counsel, makes it inadvisable to proceed
with the Exchange; or
(ii) any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate such
transactions (which does not include the Securities and Exchange
Commission) or in the judgement of such board of directors, made in good
faith and based on the advice of counsel, there is substantial likelihood
that any such approval will not be obtained or will be obtained only on a
condition or conditions which would be unduly burdensome, making it
inadvisable to proceed with the Exchange.
In the event of termination pursuant to this paragraph (a) of Section 4.04, no
obligation, right or liability shall arise hereunder, and each party shall bear
its own costs and expenses incurred by it in connection with the negotiation,
drafting, and execution of this Agreement and the transactions herein
contemplated.
(b) This Agreement may be terminated by the board of directors of Asconi at
any time prior to the Closing if:
(i) the board of directors of Asconi Holdings Limited determines in
good faith that one or more of Parent's conditions to Closing has not
occurred, through no fault of Asconi Holdings Limited.
(ii) Asconi takes the termination action specified in Section 3.18 as
a result of Parent's Schedules or updates thereto which Asconi finds
unacceptable; or
(iii) Parent shall fail to comply in any material respect with any of
its covenants or agreements contained in this Agreement or if any of the
representations or warranties of Parent contained herein shall be
inaccurate in any material respect, where such noncompliance or inaccuracy
has not been cured within ten (10) days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (b) of Section
4.04, this Agreement shall be of no further force or effect, and no obligation,
right or liability shall arise hereunder, except that each shall bear its own
costs as well in connection with the negotiation, preparation, and execution of
this Agreement and qualifying the offer and sale of securities to be issued in
the Exchange under the registration requirements, or exemption from the
registration requirements, of state and federal securities laws.
(c) This Agreement may be terminated by the board of directors of
Parent at any time prior to the Closing if Asconi shall fail to comply in
any material respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties of Asconi
contained herein shall be inaccurate in any material respect, where such
noncompliance or inaccuracy has not been cured within thirty (30) days
after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (c) of
Section 4.04, Parent must provide written notice of its intention to terminate
and state reasons for such termination, whereby Asconi shall have thirty (30)
days to cure such items that are unacceptable to Parent. In the event Asconi
shall fail to cure such items, this Agreement shall be of no further force or
effect, and no obligation, right or liability shall arise hereunder.
ARTICLE V
SPECIAL COVENANTS
Section 5.01 Access to Properties and Records. Each of the Parties will
each afford to the officers and authorized representatives of the other Parties
full access to their properties, books and records be, in order that each may
have a full opportunity to make such reasonable investigation as it shall desire
to make of the affairs of the other, and each will furnish the other with such
additional financial and operating data and other information reasonably
requested.
Section 5.02 Delivery of Books and Records. At the Closing, Parent shall
deliver to Asconi the copies of the corporate minute books, books of account,
contracts, records, and all other books or documents of Parent now in the
possession of Parent or its representatives.
Section 5.03 Third Party Consents and Certificates. All Parties agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein contemplated.
Section 5.04 Consent of Asconi Shareholders. Asconi shall use its best
efforts to obtain the consent of all Asconi shareholders to participate in the
Exchange.
Section 5.05 Actions Prior to Closing.
From and after the date of this Agreement until the Closing and except
as set forth in the Schedules of each Party or as permitted or contemplated
by this Agreement, each party (subject to paragraph (d) below)
respectively, will:
(i) carry on its business in substantially the same manner as it
has heretofore;
(ii) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to ordinary
wear and tear and damage due to casualty;
(iii) perform in all material respects all of its obligations
under material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(iv) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationship with its material suppliers and customers; and
(v) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and
all rules, regulations, and orders imposed by federal or state
governmental authorities.
Section 5.06 Sales Under Rule 144 or 145, If Applicable.
-------------------------------------------
(a) Parent will use its best efforts to at all times comply with the
reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including timely filing of all periodic reports
required under the provisions of the Exchange Act and the rules and
regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding restricted
stock of Parent that such person intends to sell any shares under Rule 144,
Rule 145 or Regulation S promulgated under the Securities Act (including
any rule adopted in substitution or replacement thereof), Parent will
certify in writing to such person that it has filed all of the reports
required to be filed by it under the Exchange Act to enable such person to
sell such person's restricted stock under Rule 144, 145 or Regulation S, as
may be applicable in the circumstances, or will inform such person in
writing that it has not filed any such report or reports.
(c) If any certificate representing any such restricted stock is presented
to Parent's transfer agent for registration of transfer in connection with
any sale theretofore made under Rule 144, 145 or Regulation S, provided
such certificate is duly endorsed for transfer by the appropriate person(s)
or accompanied by a separate stock power duly executed by the appropriate
person(s) in each case with reasonable assurances that such endorsements
are genuine and effective, and is accompanied by an opinion of counsel
satisfactory to Asconi Holdings Limited and its counsel that the stock
transfer has complied with the requirements of Rule 144, 145 or Regulation
S, as the case may be, Parent will promptly instruct its transfer agent to
register such shares and to issue one or more new certificates representing
such shares to the transferee and, if appropriate under the provisions of
Rule 144, 145 or Regulation S, as the case may be, free of any stop
transfer order or restrictive legend. The provisions of this Section 5.06
shall survive the Closing and the consummation of the transactions
contemplated by this Agreement.
Section 5.07 Indemnification.
(a) Parent hereby agrees to indemnify Asconi and each of the officers,
agents and directors of Asconi as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentations made under Article I of
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
(b) Asconi hereby agrees to indemnify Parent and each of the officers,
agents, and directors of Parent as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentation made under Article III of
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND HOLDINGS
The obligations of Parent under this Agreement are subject to the
satisfaction, at or before the Closing, of the following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Asconi in this Agreement were true
when made and shall be true at the Closing with the same force and effect as if
such representations and warranties were made at and as of the Closing (except
for changes therein permitted by this Agreement). Asconi shall have performed or
complied with all covenants and conditions required by this Agreement to be
performed or complied with by Asconi prior to or at the Closing. Parent shall be
furnished with a certificate, signed by a duly authorized executive officer of
Asconi and dated the Closing, to the foregoing effect.
Section 6.02 Officer's Certificate. Parent have been furnished with a
certificate dated the Closing and signed by a duly authorized officer of Asconi
to the effect that no litigation, proceeding, investigation, or inquiry is
pending, or to the best knowledge of Asconi threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
this Agreement, or, to the extent not disclosed in the Asconi Schedules, by or
against Asconi, which might result in any material adverse change in any of the
assets, properties, business, or operations of Asconi.
Section 6.03 No Material Adverse Change. Prior to the Closing , there
shall not have occurred any change in the financial condition, business, or
operations of Parent nor shall any event have occurred which, with the lapse of
time or the giving of notice, is determined to be unacceptable using the
criteria set forth in Section 3.__.
Section 6.04 Approval by Shareholders. The Exchange shall have been
approved, and shares delivered in accordance with Section 3.01, by the holders
of not less than one hundred percent (100%) of the outstanding common stock of
Asconi.
Section 6.05 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.06 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Asconi after the Closing on the basis as presently operated shall
have been obtained.
Section 6.07 Other Items.
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(a) Parent shall have received a list of Asconi's shareholders
containing the name, address, and number of shares held by each Asconi
shareholder as of the date of Closing, certified by an executive
officer of Asconi as being true, complete and accurate; and
(b) Parent shall have received such further opinions, documents,
certificates or instruments relating to the transactions contemplated
hereby as Parent may reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF ASCONI
The obligations of Asconi and the Asconi Shareholders under this
Agreement are subject to the satisfaction, at or before the Closing, of the
following conditions:
Section 7.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Parent and Holdings in this Agreement
were true when made and shall be true as of the Closing (except for changes
therein permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing. Additionally,
Parent and Holdings shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by Parent
and Holdings and the directors of Parent and Holdings shall have approved the
Exchange and the related transactions described herein.
Asconi shall have been furnished with certificates, signed by duly authorized
executive officers of Parent and Holdings and dated the Closing , to the
foregoing effect.
Section 7.02 Officer's Certificate. Asconi shall have been furnished
with certificates dated the Closing and signed by duly authorized executive
officers of Parent and Holdings, to the effect that no litigation, proceeding,
investigation or inquiry is pending, or to the best knowledge of Parent and
Holdings threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the Parent and Holdings Schedules, by or against Parent
and Holdings, which might result in any material adverse change in any of the
assets, properties or operations of Parent and Holdings.
Section 7.03 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 7.04 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of each party after the Closing on the basis as presently operated
shall have been obtained.
Section 7.05 Other Items. Asconi shall have received further opinions,
documents, certificates, or instruments relating to the transactions
contemplated hereby as Asconi may reasonably request.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Brokers. The Parties agree that, except as set out on
Schedule 8.01 attached hereto, there were no finders or brokers involved in
bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. The Parties each agree to indemnify
the other against any claim by any third person other than those described above
for any commission, brokerage, or finder's fee arising from the transactions
contemplated hereby based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying party.
Section 8.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Nevada without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States,.
Section 8.03 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to Parent or Holdings to: Asconi Corporation
0000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn:Xxxxx Xxxxxxx
With copies to: Xxxx Xxxxxxxxx, Esq.
Vanderkam & Xxxxxxx
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to Asconi: Asconi Ltd.
Republic of Xxxxxxx, Xxxxxxxx Xxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxx, Xxx. Sciusev 53
Attn: Jitaru Xxxxxxxxxx Xxxxx
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 8.04 Attorney's Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgement rendered
therein.
Section 8.05 Confidentiality. Each party hereto agrees with the other
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 8.06 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 8.07 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 8.08 Third Party Beneficiaries. This contract is strictly
between Parent Holding and Asconi and Parent, and, except as specifically
provided, no director, officer, stockholder (other than the Parent
Shareholders), employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
Section 8.09 Expenses. Subject to Sections 4.04 and 8.04 above, whether
or not the Exchange is consummated, each Party hereto will bear their own
respective expenses, including legal, accounting and professional fees, incurred
in connection with the Exchange or any of the other transactions contemplated
hereby.
Section 8.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 8.11 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing and the
consummation of the transactions herein contemplated for a period of two years.
Section 8.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 8.13 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing , this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 8.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its 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 under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused
this Agreement to be executed by their respective officers, hereunto duly
authorized, as of the date first-above written.
ATTEST: ASCONI CORPORATION
______________________ BY:______________________
Secretary or Assistant Secretary ______________________, President
ATTEST: ASCONI HOLDINGS LIMITED
______________________ BY:______________________
Secretary or Assistant Secretary ______________________President
ATTEST: ASCONI LTD.
_______________________ By:______________________
Secretary or Assistant Secretary ______________________President
The undersigned shareholders of Asconi Ltd. hereby agree to participate
in the Exchange on the terms set forth above. Subject to Section 8.11 above,
each of the undersigned hereby represents and affirms that he has read each of
the representations and warranties of Asconi set out in Article III hereof and
that, to the best of his knowledge, all of such representations and warranties
are true and correct.
____________, individually
____________, individually
____________, individually
____________, individually
The undersigned officers of Asconi Corporation and Asconi Holdings
Limited hereby agree to approve the foregoing Agreement and the transactions
contemplated thereby. Subject to Section 8.11 above, the undersigned hereby
represents and affirms that they have read each of the representations and
warranties of Asconi Corporation set out in Article I hereof and of Asconi
Holding Limited set out in Article II hereof, and that, to the best of his
knowledge, all of such representations and warranties are true and correct.
ASCONI CORPORATION
_______________________
_______________________President
ASCONI HOLDINGS LIMITED
_______________________
_______________________President
