EXHIBIT 2.2
AGREEMENT
Dated June 29, 2000
By and Among
Academy Resources, Inc.
Myofis Internet, Inc.
Myofis' shareholders
INDEX
ARTICLE I -- SALE AND TRANSFER OF Myofis, INC. STOCK
1.1 Myofis .................................................................
1.2 Purchase Price..........................................................
ARTICLE II -- REPRESENTATIONS AND WARRANTIES OF Myofis
2.1 Valid Corporate Existence...............................................
2.2 Capitalization..........................................................
2.3 Subsidiaries............................................................
2. Consents................................................................
Corporate Authority;
Binding Nature of Agreement; Title to Myofis Stock, etc................
2.6 Financial Statements, etc...............................................
2.7 Liabilities.............................................................
2.8 Actions Since Myofis Balance Sheet Date................................
2.9 Adverse Developments....................................................
2.10 Taxes...................................................................
2.11 Ownership of Assets;
Trademarks, etc.........................................................
2.12 Litigation;
Compliance with Law.....................................................
2.13 No Breach...............................................................
2.14 Brokers.................................................................
2.15 Change of Name..........................................................
2.16 Untrue or Omitted Facts.................................................
2.17 Patents.................................................................
2.18 Royalty Agreements......................................................
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF ACADEMY
3.1 Valid Corporate Existence...............................................
3.2 Capitalization..........................................................
3.3 Subsidiaries............................................................
3.4 Consents................................................................
3.5 Corporate Authority;
Binding Nature of Agreement, etc....................................
3.7 Financial Statements, etc...............................................
3.9 Liabilities.............................................................
3.10 Actions Since Academy Balance Sheet Date................................
3.11 Adverse Developments....................................................
3.12 Taxes...................................................................
3.13 Ownership of Assets.....................................................
3.14 Litigation; Compliance with Law ........................................
3.15 No Breach...............................................................
ii
3.16 Brokers.................................................................
3.17 Untrue or Omitted Facts.................................................
ARTICLE IV -- PRE-CLOSING COVENANTS
4.1 Carcinotek, Covenants...................................................
4.2 Academy Covenants.......................................................
ARTICLE V -- ACADEMY STOCK
5.1 Acquisition of Academy Stock............................................
5.2 Restrictive Legend......................................................
ARTICLE VI -- CONDITIONS PRECEDENT TO THE OBLIGATION OF ACADEMY TO CLOSE
6.1 Representations and Warranties..........................................
6.2 Covenants...............................................................
6.3 No Actions..............................................................
6.4 Consents;
Licenses and Permits....................................................
6.5 Certificate.............................................................
6.6 Additional Documents....................................................
6.7 Approval of Counsel.....................................................
ARTICLE VII -- CONDITIONS PRECEDENT TO THE OBLIGATION OF MYOFIS, AND THE
STOCKHOLDERS TO CLOSE
7.1 Representations and Warranties..........................................
7.2 Covenants...............................................................
7.3 No Actions..............................................................
7.4 Certificate.............................................................
7.5 Additional Documents....................................................
7.6 Approval of Counsel.....................................................
ARTICLE VII -- CLOSING
8.1 Location................................................................
8.2 Items to be Delivered by Myofis,........................................
and the Myofis, Stockholders.......................................
8.3 Items to be Delivered by Academy........................................
8.4 Other Items to be Delivered by Academy..................................
ARTICLE IX -- SURVIVAL OF REPRESENTATIONS;
INDEMNIFICATION
9.1 Survival................................................................
9.2 Indemnification.........................................................
9.3 Defense of Claims.......................................................
9.4 Rights Without Prejudice................................................
iii
ARTICLE X -- TERMINATION AND WAIVER
10.1 Termination.............................................................
10.2 Waiver..................................................................
ARTICLE XI -- MISCELLANEOUS PROVISIONS
11.1 Expenses...............................................................
11.2 Confidential Information...............................................
11.3 Modification, Termination or Waiver....................................
11.4 Publicity..............................................................
11.5 Notices................................................................
11.6 Binding Effect and Assignment..........................................
11.7 Entire Agreement.......................................................
11.8 Exhibits...............................................................
11.9 Governing Law..........................................................
11.10 Counterparts...........................................................
11.11 Section Headings.......................................................
iv
EXHIBITS
1.2 -- Academy -- Shares to be Issued in Exchange for Shares of Myofis
.................................................................
v
AGREEMENT AND PLAN OF REORGANIZATION dated June 29, 2000 (the "Agreement") by
and among Academy Yacht deliveries Corporation, a Nevada corporation
("Academy"), and Myofis, Inc. ("Carcinotek"), a Delaware corporation.
--------------------------------------------------------------------------------
WHEREAS, Academy desires to acquire all of the issued and outstanding
shares of capital stock of Myofis in a tax-free reorganization within the
meaning of Section 368 (a)(1)(B) of the Internal Revenue Code of 1986 (the
"Reorganization"), and
WHEREAS, Myofis' shareholders own of all of the issued and outstanding
stock of Myofis,
NOW, THEREFORE, in consideration of the mutual benefits to be derived
hereby and the representations, warranties, covenants and agreements herein
contained, Academy, Myofis and Myofis' shareholders agree as follows:
ARTICLE I
Sale and Transfer of Myofis Stock
---------------------------------
1.1 MYOFIS STOCK. Upon the terms and subject to the conditions
hereinafter set forth, at the Closing (as hereinafter defined in Section
8.1), Myofis' shareholders shall sell, transfer and deliver to Academy and
Academy shall acquire from Myofis' shareholders all of his shares of Common
Stock of Myofis, as set forth opposite his name on Exhibit 1.1 hereto, being
all of the issued and outstanding shares of capital stock of Myofis as of the
date hereof (collectively, the "Myofis Stock"), free and clear of all liens,
pledges,
encumbrances, charges and claims thereon. Certificates evidencing the Myofis
Stock and or other evidence of ownership where stock certificates have not been
formally issued, will be delivered to Academy duly endorsed in blank or
accompanied by appropriate stock powers and/or transmittal forms, endorsed in
blank. Such certificates and or other evidence of ownership shall also be
accompanied by evidence satisfactory to Academy of Myofis' shareholders' payment
of any applicable transfer taxes.
1.2 PURCHASE PRICE. Upon the sale, transfer and delivery to Academy by
Myofis' shareholders of the Myofis Stock as set forth in Section 1.1, and in
consideration therefor, Academy shall deliver to Myofis' shareholders
certificates evidencing an aggregate of 21,800,000 restricted shares of Common
Stock, par value $.001 per share, of Academy (the "Academy Stock") in the names
and denominations as set forth on Exhibit 1.2 hereto and Xxxxxxx Xxxxxxx will
receive the sum of $175,000 ( one hundred seventy five thousand dollars)
ARTICLE II
Representations and Warranties of Myofis
----------------------------------------
Carcinotek and Myofis' shareholders make the following
representations and warranties to Academy, each of which shall be deemed
material (and Academy, in executing, delivering and consummating this Agreement,
has relied and will rely upon the correctness and completeness of each of such
representations and warranties):
2.1 VALID CORPORATE EXISTENCE; QUALIFICATION. Myofis is a Delaware
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Myofis has the corporate power to carry on its
business as now conducted and to own its assets. Myofis is not qualified to
conduct business in any other jurisdiction, there being no jurisdiction in which
failure to qualify would have a material adverse effect on Myofis, and its
assets, properties or business, and there has not been any claim by any other
jurisdiction to the effect that Myofis is required to qualify or otherwise be
authorized to do business as a foreign corporation therein. A copy of Myofis's
Certificate of Incorporation (certified by the appropriate official of the State
of Delaware) and By-Laws (certified by Myofis's Secretary), as amended to date,
which will be delivered to Academy at or prior to the Closing, are true and
complete copies of those documents as now in effect. The minute books of Myofis
contain accurate records of all meetings of its Board of Directors, and
stockholders since its incorporation, and accurately reflect all transactions
referred to therein.
2.2 CAPITALIZATION. The authorized capital stock of Myofis consists of
1,500 shares of Common Stock, $.01 par value of which 1,500 shares of Common
Stock are issued and outstanding. All of such shares of Common Stock are duly
authorized and validly issued and outstanding, fully paid and nonassessable.
There are no subscriptions, options, warrants, rights or calls or other
commitments or agreements to which Myofis is a party or by which it is bound,
calling for the issuance, transfer, sale or other disposition of any class of
securities of Myofis. There are no outstanding securities of Myofis convertible
or exchangeable, actually or contingently, into shares of Common Stock or any
other securities of Myofis.
2.3 SUBSIDIARIES. Myofis has no subsidiaries.
2.4 CONSENTS. There are no consents of governmental and other
regulatory agencies, foreign or domestic, and of other parties required to be
received by or on the part of Myofis, or Myofis' shareholders to enable each of
such persons to enter into and carry out this Agreement in all material
respects.
2.5 CORPORATE AUTHORITY; BINDING NATURE OF AGREEMENT; TITLE TO MYOFIS
STOCK, ETC. MYOFIS and Myofis' shareholders have the power to enter into this
Agreement and to carry out its, his or her obligations hereunder. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of
Myofis and no other corporate proceedings on the part of Myofis are necessary to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of each of Myofis and Myofis' shareholders and is enforceable
in accordance with its terms. Myofis' shareholders individually represents and
warrants to Academy that he is, and at the Closing will be the sole record and
beneficial owner of the respective shares of Myofis Stock held by him, free and
clear of all liens, charges, encumbrances and claims. Myofis' shareholders
further represents and warrants to Academy that they have, and at the Closing
will have, good and marketable title to the respective shares of Myofis Stock
and subject to pertinent federal and state rules and regulations, pertaining to
the sale of unregistered securities, the absolute and unqualified right to sell,
transfer and deliver the Myofis Stock to Academy. The delivery of the Myofis
Stock to Academy at the Closing pursuant to the provisions of this Agreement
will transfer valid title thereto, free and clear of all manner of liens,
pledges, encumbrances, charges and claims.
2.6 FINANCIAL STATEMENTS, ETC. The unaudited balance sheet for the
period ending June 15,2000 of Myofis, copies of which have been delivered to
Academy, fairly present the financial position of Myofis as of said date, and,
except as set forth therein, were prepared in conformity with generally accepted
accounting principles consistently applied throughout the period covered
thereby.
2.7 LIABILITIES. As at May 15, 2000 (the "Myofis Balance Sheet Date")
and as of the date hereof, Myofis had no material debts, liabilities or
obligations, contingent or absolute, other than those debts, liabilities and
obligations reflected or reserved against in Myofis's Balance Sheets at the
Myofis Balance Sheet Date, except those arising in the ordinary and usual course
of its business and those set forth in the interim unaudited balance sheet dated
as of June 15, 2000.
2.8 ACTIONS SINCE MYOFIS BALANCE SHEET DATE. Except as otherwise
expressly provided or set forth in, or required by, this Agreement, since
the Myofis Balance Sheet Date, Myofis has not: (i) issued or sold, or agreed to
issue or sell any of its capital stock or options, warrants, rights or calls to
purchase such stock, any securities convertible or exchangeable into such
capital stock or other corporate securities, or effected any subdivision or
other recapitalization affecting its capital stock; (ii) incurred any material
obligation or liability, absolute or contingent, except those arising in the
ordinary and usual course of its business; (iii) discharged or satisfied any
lien or encumbrance, except in the ordinary and usual course of business, or
paid or satisfied any liability, absolute or contingent, other than liabilities
as at the Myofis Balance Sheet Date and current liabilities incurred since
the Myofis Balance Sheet Date in the ordinary and usual course of business; (iv)
made any wage or salary increases or granted any bonuses other than wage and
salary increases and bonuses granted in accordance with its normal salary
increase and bonus policies; (v) mortgaged, pledged or subjected to any lien,
pledge, charge or other encumbrance any of its properties or assets, or
permitted any of its property or assets to be subjected to any lien or other
encumbrance, except in the ordinary and usual course of business; (vi) sold,
assigned or transferred any of its properties or assets, except in the ordinary
and usual course of business; (vii) entered into any transaction or course of
conduct not in the ordinary and usual course of business; (viii) waived any
rights of substantial value, or canceled, modified or waived any indebtedness
for borrowed money held by it, except in the ordinary and usual course of
business; (ix) declared, paid or set aside any dividends or other distributions
or payments on its capital stock, or redeemed or repurchased, or agreed to
redeem or repurchase, any shares of its capital stock; (x) made any loans or
advances to any person, or assumed, guaranteed, endorsed or otherwise became
responsible for the obligations of any person; or (xi) incurred any indebtedness
for borrowed money (except for endorsement, for collection or deposit of
negotiable instruments received in the ordinary and usual course of business).
2.9 ADVERSE DEVELOPMENTS. Since the Myofis Balance Sheet Date,
there have been no material adverse changes in the assets, properties,
operations or financial condition of Myofis, and no event has occurred other
than in the ordinary and usual course of business which could be reasonably
expected to have a materially adverse effect upon the business of Myofis and
Myofis' shareholders, after reasonable inquiry, do not know of any development
of a nature that is, or which could be reasonably expected to have a materially
adverse effect upon the respective business of Myofis or upon any of its assets,
properties, operations or financial condition, including, without limitation,
the loss of any licenses or permits, suppliers, customers or employees, which
loss would be of a materially adverse nature, except
2.10 TAXES. Myofis never filed a Federal tax return on form 1120
and none was delivered to Academy. All taxes, including, without limitation,
income, property, sales, use, franchise, capital stock, excise, added value,
employees' income withholding, social security and unemployment taxes imposed by
the United States, any state or any foreign country, or by any other taxing
authority, which have or may become due or payable by Myofis and all interest
and penalties thereon, whether disputed or not, have been paid in full or
adequately provided for by reserves shown in its books of account; all deposits
required by law to be made by Myofis or with respect to estimated income,
franchise and employees' withholding taxes have been duly made; and all tax
returns, including estimated tax returns, required to be filed have been duly
filed.
2.11 OWNERSHIP OF ASSETS; TRADEMARKS, ETC. Except as set forth in
the Myofis Balance Sheet, Myofis is free and clear of all liens, mortgages,
pledges, conditional sales agreements, restrictions on transfer or other
encumbrances or changes.
2.12 LITIGATION; COMPLIANCE WITH LAW. Currently, there is an action
pending against Myofis.
2.13 NO BREACH. Neither the execution and delivery of this Agreement
nor compliance by Myofis and Myofis' shareholders with any of the provisions
hereof, nor the consummation of the transactions contemplated hereby, will:
(a) violate or conflict with any provision of the Certificate of
Incorporation or By-laws of Myofis;
(b) violate or, alone or with notice or the passage of time, result in
the material breach or termination of, or otherwise give any contracting party
the right to terminate, or declare a default under, the terms of any agreement
or other document or undertaking, oral or written to which Myofis or Myofis'
shareholders is a party or by which any of them or any of their respective
properties or assets may be bound (except for such violations, conflicts,
breaches or defaults as to which required waivers or consents by other parties
have been, or will, prior to the Closing, be obtained);
(c) result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of Myofis pursuant to the terms
of any such agreement or instrument;
(d) violate any judgement, order, injunction, decree or award against,
or binding upon, Myofis,
(e) violate any law or regulation of any jurisdiction relating to
Myofis, its securities, assets or properties.
2.14 BROKERS. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly with Academy and
by Myofis and Myofis' shareholders, without the intervention of any broker,
finder, investment banker or other third party.
2.15 CHANGE OF NAME. Myofis has not conducted business under any other
name during the past three (3) years.
2.16 UNTRUE OR OMITTED FACTS. To the knowledge of Myofis, Myofis'
shareholders after reasonable inquiry, no representation, warranty or statement
by Myofis or Myofis' shareholders in this Agreement contains any untrue
statement of a material fact, or omits or will omit to state a fact necessary in
order to make such representations, warranties or statements not materially
misleading. Without limitation of the foregoing, there is no fact known to
Myofis or Myofis' shareholders, after reasonable inquiry, that has had, or
which may be reasonably expected to have, a materially adverse effect on Myofis
or any of its assets, properties, operations or businesses that has not been
disclosed in writing to Academy.
2.17 PATENTS. Myofis warrants that it has no patents.
2.18 ROYALTY AGREEMENTS. Myofis has no royalty agreements.
ARTICLE III
Representations and Warranties of Academy
-----------------------------------------
Academy makes the following representations and warranties to Myofis
and Myofis' shareholders, each of which shall be deemed material (and Myofis and
Myofis' shareholders, in executing, delivering and consummating this Agreement,
have relied and will rely upon the correctness and completeness of each of such
representations and warranties):
3.1 VALID CORPORATE EXISTENCE; QUALIFICATION. Academy is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada. Academy has the corporate power to carry on its business as now
conducted and to own its assets. Academy is not qualified to conduct business as
a foreign corporation in any jurisdiction, there being no jurisdiction in which
failure to qualify would have a material adverse effect on Academy and its
assets, properties or business, and there has not been any claim by any
jurisdiction to the effect Academy is required to qualify or otherwise be
authorized to do business as a foreign corporation therein. The copies of the
Certificate of Incorporation (as certified by the Secretary of the State of
Nevada) and By-Laws (as certified by the Secretary of Academy, as the case may
be) of Academy, as amended to date, which will be delivered to Myofis prior to
the Closing, are true and complete copies of those documents as now in effect.
3.2 CAPITALIZATION.
(a) The authorized capital stock of Academy consists of 50,000,000
shares of Common Stock, par value $.001 per share, of which 5,450,000 shares of
Common Stock are issued and outstanding on the date hereof. Upon the closing,
Academy shall issue and declare outstanding an additional 21,800,000 shares. All
of such shares of Common Stock are and will be duly authorized and validly
issued and outstanding, fully paid and non-assessable. The shares of Academy to
be issued and delivered to Myofis' shareholders as contemplated by Section 1.2
hereof, have been duly and validly authorized and, when so issued and delivered,
will be duly and validly issued, fully paid and non-assessable.
3.3 SUBSIDIARIES. Academy has no subsidiaries and it does not own any
stock in any other corporation, association or business venture. Academy is not
a party to any joint venture or partnership agreement.
3.4 CONSENTS. No consents of governmental and other regulatory
agencies, foreign or domestic, and of other third parties is required to be
received by or on the part of Academy to enable it to enter into and carry out
this Agreement in all material respects.
3.5 CORPORATE AUTHORITY; BINDING NATURE OF AGREEMENT; ETC. Academy has
the corporate power to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Academy prior to the Closing. No other corporate
proceedings on the part of Academy are necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement constitutes the valid and binding obligation of Academy
and is enforceable in accordance with its terms.
3.6 FINANCIAL STATEMENTS, ETC. The financial statements of Academy for
the period from May 14,1998 through June 30, 1999, copies of which have been
delivered to Myofis fairly present in all material respects the financial
position of Academy, including its income, expenses, assets and liabilities, as
of said dates and the results of its operations for such periods and were
prepared in conformity with generally accepted accounting principles
consistently applied throughout the periods covered thereby.
3.7 LIABILITIES. As at June 1, 2000 (the "Academy Balance Sheet Date"),
Academy had no material debts, liabilities or obligations, contingent or
absolute, in excess of $10,000, other than those debts, liabilities and
obligations reflected or reserved against in Academy's Balance Sheet at the
Balance Sheet Date (the "Academy Balance Sheet"), and except for Academy's
obligation to pay professional fees in connection with the transaction herein.
3.8 ACTIONS SINCE ACADEMY BALANCE SHEET DATE. Except as set forth and
reflected in this Agreement, Academy has not: (i) issued or sold, or agreed to
issue or sell any of its capital stock, options, warrants, rights or calls to
purchase such stock, any securities convertible or exchangeable into such
capital stock or other corporate securities, or effected any subdivision or
other recapitalization affecting its capital stock; (ii) incurred any material
obligation or liability, absolute or contingent, except those arising in the
ordinary and usual course of its business; (iii) discharged or satisfied any
lien or encumbrance, except in the ordinary and usual course of business, or
paid or satisfied any liability, absolute or contingent, other than liabilities
as at the Academy Balance Sheet Date and current liabilities incurred since the
Academy Balance Sheet Date in the ordinary and usual course of business; (iv)
made any wage or salary increases or granted any bonuses other than wage and
salary increases and bonuses granted in accordance with its normal salary
increase and bonus policies; (v) mortgaged, pledged or subjected to any lien,
pledge, charge or other encumbrance any of its properties or assets, or
permitted any of its property or assets to be subjected to any lien or other
encumbrance, except in the ordinary and usual course of business; (vi) sold,
assigned or transferred any of its properties or assets, except in the ordinary
and usual course of business; (vii) entered into any transaction or course of
conduct not in the ordinary and usual course of business; (viii) waived any
rights of substantial value, or canceled, modified or waived any indebtedness
for borrowed money held by it, except in the ordinary and usual course of
business; (ix) declared, paid or set aside any dividends or other distributions
or payments on its capital stock, or redeemed or repurchased, or agreed to
redeem or repurchase, any shares of its capital stock; (x) made any loans or
advances to any person, or assumed, guaranteed, endorsed or otherwise became
responsible for the obligations of any person; or (xi) incurred any indebtedness
for borrowed money (except for endorsement, for collection or deposit of
negotiable instruments received in the ordinary and usual course of business).
3.9 ADVERSE DEVELOPMENTS. Since the Effective Date, the Academy has not
engaged in any business activities other than exploring business opportunities
and the negotiation of this Agreement and the transactions contemplated hereby.
Since the Academy Balance Sheet Date, there have been no material adverse
changes in the assets, properties, operations or financial condition of Academy,
and no event has occurred other than in the ordinary and usual course of
business which could be reasonably expected to have a materially adverse effect
upon the business of Academy, and Academy, after reasonable inquiry, knows of no
development or threatened development of a nature that is, or which could be
reasonably expected to have a materially adverse effect upon the business of
Academy or upon any of its assets, properties, operations or financial
condition.
3.10 TAXES. All taxes, including without limitation, income property,
sales, use, franchise, capital stock, excise, employees income, withholding,
social security and unemployment taxes imposed by the United States, or any
state, have been paid or otherwise provided for.
3.11 OWNERSHIP OF ASSETS. Academy owns outright, and has good and
marketable title to all of its assets and properties reflected in the Academy
Balance Sheet, except as the same may have been disposed of in the ordinary
course of business since the Academy Balance Sheet Date, free and clear of all
liens, mortgages, pledges, conditional sales agreements, restrictions on
transfer or other encumbrances or charges whatsoever. Academy does not own any
patents, copyrights, trademarks, trade names or other similar intangible assets.
3.12 LITIGATION, COMPLIANCE WITH LAW. There are no pending or
threatened actions, suits, proceedings or governmental investigations relating
to Academy or any of its properties, assets or business or, to the knowledge of
Academy, or any order, injunction, award or decree outstanding, against Academy
or against or relating to any of its properties, assets or business; and
Academy, after reasonable inquiry, knows of no basis for any such action, suits
or proceedings or any such governmental investigations, orders, injunctions or
decrees. To the knowledge of Academy, after reasonable inquiry, Academy is not
in violation of any material law, regulation, ordinance, order, injunction,
decree, award, or other requirement of any governmental body, court or
arbitrator relating to its properties, assets or business.
3.13 NO BREACH. Neither the execution and delivery of this Agreement
nor compliance by Academy with any of the provisions hereof nor the consummation
of the transactions contemplated hereby, will:
(a) violate or conflict with any provision of the Articles of
Incorporation or By-laws of Academy;
(b) violate or, alone or with notice or the passage of time, result in
the material breach or termination of, or otherwise give any contracting party
the right to terminate, or declare a default under, the terms of any agreement
or other document or undertaking, oral or written to which Academy or any of the
Academy stockholders is a party or by which any of them or any of their
respective properties or assets may be bound (except for such violations,
conflicts, breaches or defaults as to which required waivers or consents by
other parties have been, or will, prior to the Closing, be obtained);
(c) result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of Academy pursuant to the
terms of any such agreement or instrument;
(d) violate any judgement, order, injunction, decree or award against,
or binding upon, Academy or upon their respective properties or assets; or
(e) violate any law or regulation of any jurisdiction relating to
Academy, its securities, assets or properties.
3.14 BROKERS. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly by Academy with
Myofis and Myofis' shareholders, without the intervention of any broker,
finder, investment banker or other third party.
3.14 UNTRUE OR OMITTED FACTS. To the knowledge of Academy, after
reasonable inquiry, no representation, warranty or statement by Academy in this
Agreement contains any untrue statement of a material fact, or omits or will
omit to state a fact necessary in order to make such representations, warranties
or statements not materially misleading. Without limitation of the foregoing,
there is no fact known to Academy, after reasonable inquiry, that has had, or
which may be reasonably expected to have, a materially adverse effect on Academy
or any of its assets, properties, operations or businesses and that has not been
disclosed in writing to Myofis.
ARTICLE IV
Pre-Closing Covenants
---------------------
4.1 MYOFIS COVENANTS. Myofis, hereby covenants that, from and after
the date hereof and until the Closing or earlier termination of this Agreement
(the "Pre-Closing Period"):
(a) ACCESS. Myofis shall afford to the officers, attorneys, accountants
and other authorized representatives of Academy free and full access, during
regular business hours and upon reasonable notice, to all of its books, records,
personnel and properties so that Academy, at its own expense, may have full
opportunity to make such review, examination and investigation as Academy may
desire of Myofis's business and affairs. Myofis will cause its employees,
accountants and attorneys to cooperate fully with said review, examination and
investigation and to make full disclosure to Academy of all material facts
affecting its financial condition and business operations.
(b) CONDUCT OF BUSINESS. Myofis shall conduct its business only in the
ordinary and usual course and make no material change in any of its business
practices and policies without the prior written consent of Academy, which shall
not be unreasonably withheld or delayed.
(c) LIABILITIES. Myofis shall not incur any obligation or liability,
absolute or contingent, except for those incurred in the ordinary and usual
course of its business.
(d) PRESERVATION OF BUSINESS. Myofis will use its best efforts to
preserve their business organization intact, to keep available the services of
its present officers, employees and consultants and to preserve its good will.
(e) NO BREACH. Myofis will (i) use its best efforts to assure that all
of its representations and warranties contained herein are true in all material
respects as of the closing as if repeated at and as of such time, and that no
material breach or default shall occur with respect to any of its covenants,
representations or warranties contained herein that has not been cured by the
Closing; (ii) not voluntarily take any action or do anything which will cause a
breach of or default respecting such covenants, representations or warranties;
and (iii) promptly notify Academy of any event or fact which represents or is
likely to cause such a breach or default.
(f) NO NEGOTIATIONS. For so long as this Agreement shall remain in
effect, neither Myofis nor any of its officers or directors nor any of its
respective affiliates, employees, agents or representatives shall enter into or
conduct negotiations, or enter into any agreement or understanding, for the sale
or possible sale of any of Myofis's securities or business or all or
substantially all of its assets with anyone other than Academy.
4.2 ACADEMY COVENANTS. Academy, hereby covenants that, during the
Pre-Closing Period:
(a) ACCESS. Academy shall afford to the officers, attorneys,
accountants and other authorized representatives of Myofis free and full access,
during regular business hours and upon reasonable notice, to all of its books,
records, personnel and properties so that any of such persons, at their own
expense, may have full opportunity to make such review, examination and
investigation as any of them may desire of the business and affairs of Academy.
Academy will cause its employees, accountants and attorneys to cooperate fully
with said review, examination and investigation and to make full disclosure
to Myofis of all material facts affecting their respective financial conditions
and business operations.
(b) CONDUCT OF BUSINESS. Academy shall conduct its business only in the
ordinary and usual course and make no material change in any of its business
practices and policies without the prior written consent of Myofis, which shall
not be unreasonably withheld or delayed.
(c) LIABILITIES. Academy shall not incur any obligation or liability,
absolute or contingent, except for those incurred in the ordinary and usual
course of its business.
(d) PRESERVATION OF BUSINESS. Myofis will use its best efforts to
preserve its business organization intact, keep available the services of its
present officers, employees and consultants and to preserve good will.
(e) NO BREACH. Academy will (i) use its best efforts to assure that all
of its representations and warranties contained herein are true in all material
respects as of the closing as if repeated at and as of such time, and that no
material breach or default shall occur with respect to any of its covenants,
representations or warranties contained herein that has not been cured by the
Closing; (ii) not voluntarily take any action or do anything which will cause a
breach of or default respecting such covenants, representations or warranties;
and (iii) promptly notify Academy of any event or fact which represents or is
likely to cause such a breach or default.
(f) LEGAL FEES. Myofis, its shareholders and Academy shall each bear
their own costs and expenses if this transaction is abandoned at any time.
ARTICLE V
Academy Stock
-------------
5.1 ACQUISITION OF ACADEMY STOCK. Myofis' shareholders represents and
warrants that the Academy Stock to be acquired by them pursuant to the terms of
Section 1.2 hereof is being acquired for their own account, with no intention of
assigning any participation or interest therein, and without a view to the
distribution of any portion thereof, except in accordance with the 1933 Act.
Myofis' shareholders understands that, the Academy Stock is not being
registered under the 1933 Act and must be held indefinitely unless it is
subsequently registered thereunder or an exemption from such registration is
available. Myofis' shareholders understands that, except as otherwise provided
in this Agreement, the Academy Stock is not being registered under the 1933 Act
in part on the ground that the issuance thereof is exempt under Section 4(2) of
the 1933 Act as a transaction by an issuer not involving any public offering;
that Academy's reliance on such exemption is predicated in part on the foregoing
representation and warranty of such Stockholder and that in the view of the
Commission, the statutory basis for the exemption claimed would not be present
if, notwithstanding such representation and warranty, Myofis' shareholders
contemplates acquiring any of the Academy Stock for sale upon the occurrence or
non-occurrence of some predetermined event.
5.2 RESTRICTIVE LEGEND. Myofis' shareholders understands that the
Academy Stock shall bear the following legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
WERE ISSUED IN ACCORDANCE WITH AN AGREEMENT DATED JUNE 29,2000
WHICH IS ON FILE AT THE OFFICES OF ACADEMY.
ARTICLE VI
Conditions Precedent to the Obligation
--------------------------------------
of Academy to Close
-------------------
The obligation of Academy to enter into and complete the Closing is
subject to the fulfillment, prior to or on the Closing Date, of each of the
following conditions, any one or more of which may be waived by Academy (except
when the fulfillment of such condition is a requirement of law).
6.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties
of each of Myofis and Myofis' shareholders contained in this Agreement and in
any written statement (except financial statements), exhibit, certificate,
schedule or other document delivered pursuant hereto or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects as at the Closing Date, as if made at the Closing and as of the Closing
Date.
6.2 COVENANTS. Myofis and Myofis' shareholders shall have performed
and complied in all material respects with all covenants and agreements required
by this Agreement to be performed or complied with by each of them prior to or
at the Closing.
6.3 NO ACTIONS. No action, suit, proceeding or investigation shall have
been instituted, and be continuing before a court or before or by a governmental
body or agency, or shall have been threatened and be unresolved, to restrain or
to prevent or to obtain damages in respect of, the carrying out of the
transactions contemplated hereby, or which might materially affect the right of
Academy to own the Myofis Stock or to operate or control the assets, properties
and business of Myofis after the Closing Date, or which might have a materially
adverse effect thereon.
6.4 CONSENTS; LICENSES AND PERMITS. Myofis, Academy, and Myofis'
shareholders shall have each obtained all consents, licenses and permits of
third parties necessary for the performance by each of them of all of their
respective obligations under this Agreement.
6.5 CERTIFICATE. Academy shall have received a certificate dated the
Closing Date, signed by the President and Secretary of Myofis as to the
satisfaction of the conditions contained in Sections 6.1 and 6.2.
6.6 ADDITIONAL DOCUMENTS. Myofis and Academy shall have delivered all
such other certificates and documents as Academy or its counsel may have
reasonably requested.
6.7 APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required to carry out this Agreement, or incidental thereto, and all
other related legal matters shall have been approved as to the form and
substance by counsel to Academy, which approval shall not be unreasonably
withheld or delayed.
ARTICLE VII
Conditions Precedent to the Obligation
--------------------------------------
of Myofis and Myofis' shareholders to Close
-------------------------------------------
The obligation of Myofis and Myofis' shareholders to enter into and
complete the Closing is subject to the fulfillment, prior to or on the closing
Date, of each of the following conditions, any one or more of which may be
waived by Myofis and Myofis' shareholders (except when the fulfillment of such
condition is a requirement of law).
7.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties
of Academy and contained in this Agreement and in any written statement,
schedule or other document delivered pursuant hereto or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects as at the Closing Date, as if made at the Closing and as of the Closing
Date.
7.2 COVENANTS. Academy shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by each of them prior to or at the Closing.
7.3 NO ACTIONS. No action, suit, proceeding, or investigation shall
have been instituted, and be continuing, before a court or before or by a
governmental body or agency, or have been threatened, and be unresolved, by any
governmental body or agency to restrain or prevent, or obtain damages in respect
of, the carrying out of the transactions contemplated hereby.
7.4 CERTIFICATE. Myofis and Myofis' shareholders shall have received a
certificate dated the Closing Date, signed by the President and Secretary of
Academy as to the satisfaction of the conditions contained in Sections 7.1 and
7.2.
7.5 ADDITIONAL DOCUMENTS. Academy shall have delivered all such
certified resolutions, certificates and documents with respect to Academy as
Myofis and Myofis' shareholders or their counsel may have reasonably requested.
7.6 APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required to carry out this Agreement or incidental thereto, and all
other related legal matters, shall have been approved as to form and substance
by counsel to Myofis, which approval shall not be unreasonably withheld or
delayed.
ARTICLE VIII
Closing
-------
8.1 LOCATION. The Closing provided for herein shall take place at the
offices of Xxxx Xxxxxxx, at 12:00 o'clock noon on or before June 29, 2000 or at
such other time and place as may be mutually agreed to by the parties hereto.
Such date is referred to in this Agreement as the "Closing Date." Corporate
action by a majority of the outstanding and issued shares of Academy Corporation
may be completed in lieu of a meeting.
8.2 ITEMS TO BE DELIVERED BY MYOFIS AND MYOFIS' SHAREHOLDERS. At the
Closing, Myofis' shareholders will deliver or cause to be delivered to Academy:
(a) Certificates representing the Myofis Stock in accordance with Section 1.1
hereof, accompanied by all instruments and documents as in the opinion of
Academy's counsel shall be necessary to effect the transfer of and to vest title
in and to the Myofis Stock in Academy, free and clear of all liens, pledges,
encumbrances, charges and claims thereon; (b) The certificates required by
Section 6.5; and (c) Such other certified resolutions, documents and
certificates as are required to be delivered by Myofis and Myofis' shareholders
pursuant to the provisions of the Agreement.
8.3 ITEMS TO BE DELIVERED BY ACADEMY. At the Closing, Academy will
deliver or cause to be delivered to Myofis' shareholders:
(a) Certificates evidencing the Academy Stock in accordance with
Section 1.2 hereof;
(b) The certificate required by Section 7.4;
(c) Resolutions appointing Xxx Xxxxx to Academy's Board of Directors;
and
(d) Resignations of Academy's executive officers and Directors; and
(d) Such other certified resolutions, documents and certificates as are
required to be delivered by Academy pursuant to the provisions of this
Agreement.
8.4 OTHER ITEMS TO BE DELIVERED BY ACADEMY. At the Closing, Academy
will deliver or cause to be delivered, the Certificates evidencing Academy Stock
in accordance with Section 3.2 (c) hereof.
ARTICLE IX
Survival of Representations; Indemnification
--------------------------------------------
9.1 SURVIVAL. The parties hereto agree that their respective
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing for a term of twenty-four (24) months with
the exception of those regarding taxes set forth in Sections which shall survive
until the expiration of the respective periods within which such taxes may be
assessed.
9.2 INDEMNIFICATION. Academy agrees to indemnify and hold
harmless Myofis and each of Myofis' shareholders from and against any and all
obligations or liabilities, of every kind, nature and description, fixed or
contingent (including, without limitation, counsel fees and expenses in
connection with any action, claim or proceeding relating to such liabilities)
arising out of any transaction or event commencing or occurring on or prior to
the Closing Date, which is not fully disclosed or provided for in the Academy
Balance Sheet, this Agreement or the several exhibits hereto, including, without
limitation, any tax liabilities to the extent not so reflected or reserved
against in the Academy Balance Sheet and for any liability arising out of
Federal and State securities laws.
9.3 DEFENSE OF CLAIMS. A party entitled to Indemnification hereunder
(an "Indemnified Party") agrees to notify each party required to indemnify
hereunder (an "Indemnifying Party") with reasonable promptness of any claim
asserted against it in respect of which any Indemnifying Party may be liable
under this Agreement, which notification shall be accompanied by a written
statement setting forth the basis of such claim and the manner of calculation
thereof. An Indemnifying Party shall have the right to defend any such claim at
its or his own expense and with counsel of its or his choice; provided, however,
that such counsel shall have been approved by the Indemnified Party prior to
engagement, which approval shall not be unreasonably withheld or delayed; and
provided further, that the Indemnified Party may participate in such defense, if
it so chooses, with its own counsel and at its own expense.
9.4 RIGHTS WITHOUT PREJUDICE. The rights of the parties under this
Article IX are without prejudice to any other rights or remedies that they may
have by reason of this Agreement or as otherwise provided by law.
ARTICLE X
Termination and Waiver
----------------------
10.1 TERMINATION. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the transactions provided
for herein abandoned at any time prior to the Closing Date:
(a) By mutual consent of the Board of Directors of Academy and Myofis;
(b) By Academy if any of the conditions set forth in Article VI hereof
shall not have been fulfilled on or prior to, or shall become incapable of
fulfillment, and shall not have been waived;
(c) By Myofis and Myofis' shareholders if any of the conditions set
forth in Article VII hereof shall not have been fulfilled, or shall have become
incapable of fulfillment, and shall not have been waived;
(d) By either party if any legal action or proceeding shall have been
instituted or threatened seeking to restrain, prohibit, invalidate or otherwise
affect the consummation of the transactions contemplated by this Agreement which
makes it inadvisable, in the judgement of the terminating party to consummate
same.
In the event that this Agreement is terminated as described above, this
Agreement shall be void and of no force and effect, without any liability or
obligation on the part of any of the parties hereto except for any liability
which may arise pursuant to Section 11.2
10.2 WAIVER. Any condition to the performance of Myofis, Myofis'
shareholders or Academy which legally may be waived on or prior to the Closing
Date may be waived at any time by the party entitled to the benefit thereof by
action taken or authorized by an instrument in writing executed by the relevant
party or parties. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
party as a later time to enforce the same. No waiver by any party of the breach
of any term, covenant, representation or warranty contained in this Agreement as
a condition to such party's obligations hereunder shall release or affect any
liability resulting from such breach, and no waiver of any nature, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such condition or of any
breach of any other term, covenant, representation or warranty of this
Agreement.
ARTICLE XI
Miscellaneous Provisions
------------------------
11.1 EXPENSES. Each of the parties hereto shall bear his or its own
expenses in connection herewith.
11.2 CONFIDENTIAL INFORMATION. Each party agrees that such party and
its representatives will hold in strict confidence all information and documents
received from the other parties and, if the transactions herein contemplated
shall not be consummated, each party will continue to hold such information and
documents in strict confidence and will return to such other parties all such
documents (including the exhibits attached to this Agreement) then in such
receiving party's possession without retaining copies thereof; provided,
however, that each party's obligations under the Section 11.1 to maintain such
confidentiality shall not apply to any information or documents that are in the
public domain at the time furnished by the others or that become in the public
domain thereafter through any means other than as a result of any act of the
receiving party or of its agents, officers, directors or stockholders which
constitutes a breach of this Agreement, or that are required by applicable law
to be disclosed. The parties agree that the remedy at law for any breach of this
Section 11.1 will be inadequate and a non-breaching party will be entitled to
injunctive relief to compel the breaching party to perform or refrain from
action required or prohibited hereunder.
11.3 MODIFICATION, TERMINATION OR WAIVER. This Agreement may be
amended, modified, superseded or terminated, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, but only by a
written instrument executed by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision hereof shall
in no manner affect the right of such party at a later time to enforce the same.
11.4 PUBLICITY. The parties agree that no publicity, release or other
public announcement concerning the transactions contemplated by this Agreement
shall be issued by either party without the advance approval of both the form
and substance of the same by the other party and its counsel, which approval, in
the case of any publicity, release or other public announcement required by
applicable law, shall not be unreasonably withheld or delayed. 11.5 Notices. Any
notice or other communication required or which may be given hereunder shall be
in writing and either be delivered personally or be mailed, certified or
registered mail, postage prepaid, and shall be deemed given when so delivered
personally, or if mailed, two days after the date of mailing, as follows: If to
Academy to:
Att:
with a copy to:
and if to Myofis to:
with a copy to:
The parties may change the persons and addresses to which the notices
or other communications are to be sent by giving written notice of any such
change in the manner provided herein for giving notice.
11.6 BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the parties
hereto; provided, however, that no assignment of any rights or delegation of any
obligations provided for herein may be made by any party without the express
written consent of the other parties.
11.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof.
11.8 EXHIBITS. All exhibits annexed hereto and the documents and
instruments referred to herein or required to be delivered simultaneously
herewith or at the Closing are expressly made a part of this Agreement as fully
as though completely set forth herein, and all references to this Agreement
herein or in any of such exhibits, documents, or instruments shall be deemed to
refer to and include all such exhibits, documents and instruments.
11.9 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within that State, excluding the choice of law
rules thereof.
11.10 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but which together shall
constitute one and the same instrument.
11.11 SECTION HEADINGS. The section headings contained in this
Agreement are inserted for conveniences of reference only and shall not affect
the meaning or interpretation of this Agreement.
WITNESS the execution of this Agreement as of the date first above
written.
Academy Resources Corporation
By
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ATTEST:
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By
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Secretary
ATTEST:
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ATTEST:
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President
CARCINOTEK INTERNET, INC.
By
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ATTEST:
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Secretary
ATTEST:
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ATTEST:
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President
