1
EXHIBIT 1
STOCK EXCHANGE AND MERGER AGREEMENT
THIS AGREEMENT made and entered into this 16th day of June 1998, by and
between TIROL PINES (TIROL) a Nevada corporation with its Florida office at 000
XX 00xx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 and INTERNATIONAL ENVIRONMENTAL
MANAGEMENT, INC. (IEMI) a Florida corporation, with offices at 0000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000.
WHEREAS, TIROL PINES is a non-reporting/non-trading company with aged 144K
common stock that is not presently quoted on any exchange and which currently
has no market makers;
WHEREAS, IEMI is a private corporation, that is in the environmental waste
recycling business.
WHEREAS, IEMI is interested in acquiring a controlling interest in TIROL
PINES through a stock for stock exchange and reverse merger; and
WHEREAS, TIROL PINES is interested in selling a controlling interest to
IEMI through a stock for stock exchange, to be accomplished as set forth below.
NOW, THEREFORE, in consideration of the provisions and the representations,
warranties and agreements herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
SECTION - I.
TERMS AND CONDITIONS OF STOCK EXCHANGE AND MERGER.
(a) IEMI and TIROL PINES acknowledge that time is of the essence in
executing this Agreement and closing on the transaction described herein. As a
consequence, neither party has been able to complete a satisfactory due
diligence investigation of the other and is relying completely on the
representations of past and present fact and representations of future
performance stated herein. TIROL PINES and IEMI have been advised by their
respective attorneys of the risks inherent in executing the agreement and
closing on the transaction without completing a full due diligence
investigation. Nevertheless, the parties desire to proceed.
Page l of 20
2
Nevertheless, the parties desire to proceed.
(b) On the "Effective Date", as hereinafter defined, the following shall
be done:
(i) TIROL PINES shall divest itself of all of its assets.
(ii) TIROL PINES will expand its Board of Directors to five (5)
members and simultaneously nominate Xxxxxx Xxxxxx, as a director.
Simultaneously with the election of Xx. Xxxxxx to the Board, the
existing directors will all resign.
(iii) IEMI shall issue to TIROL PINES all of its outstanding common
stock. The stock certificates representing ownership of the
common stock shall be properly endorsed on the back for transfer,
surrendered to TIROL PINES and such shares shall be canceled on
the transfer records of IEMI.
(iv) TIROL PINES shall issue to the existing shareholders of IEMI
restricted shares of its common stock totaling 1,500,000. Each
certificate representing the restricted shares of common stock
will have a legend thereon incorporating language as follows:
"The Shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"). The shares have been
acquired for investment and may not be sold or transferred in absence of an
effective registration statement for the Shares under the Act unless, in
the opinion of counsel satisfactory to the Company, registration is not
required under the "Act".
(v) The existing shareholders of TIROL PINES will transfer to IEMI or
its designees 750,000 shares of Rule 144 K common stock currently
issued to them and thereafter hold unto themselves 200,000 shares
of TIROL PINES.,
(vi) The officers and directors of TIROL PINES shall resign their
positions.
(vii) IEMI will merge into TIROL PINES and cease to exist.
Page 2 of 20
3
(viii) TIROL PINES shall change its name to INTERNATIONAL
ENVIRONMENTAL MANAGEMENT, INC.
(ix) The terms conditions of the merger shall be as set forth in
Articles of Merger (hereinafter referred to as the "Articles of
Merger") and as further provided herein. The Articles of Merger
shall constitute an agreement of merger for purposes of the
General Corporation Law of the State of Nevada.
(x) TIROL PINES and IEMI shall obtain approval for this Agreement and
the transactions described herein by their respective board of
directors and shareholders pursuant to the applicable provisions
of Nevada law.
(c) The Effective Date shall be the date the merger becomes effective. The
merger shall become effective at the close of business on the day when the
Articles of Merger, certified as to requisite stockholder approval, shall have
been filed in the Office of the Secretary of State of the State of Nevada. The
Articles of Merger shall be filed as soon as practicable after the date this
Agreement is signed.
(d) The two million shares of common stock of TIROL PINES to be issued to
the shareholders of IEMI have not been registered under the Securities Act of
1933 and may not be resold unless the common stock is registered under the Act
or an exemption from such registration is available. Each stockholder of IEMI
who receives restricted shares shall represent and warrant that the shareholder
is acquiring the common stock for that shareholder's own account, for
investment, and not with the view to the sale or distribution of the common
stock. Each certificate representing the restricted shares of common stock will
have a legend thereon incorporating language as follows:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended
(the "Act"). The Shares have been acquired for investment
and may not be sold or transferred in the absence of an
effective registration statement for the Shares under the
Act unless, in the opinion of counsel satisfactory to the
company, registration is not required under the Act."
Page 3 of 20
4
(e) Notwithstanding the restrictions set forth in Section 1(d) the rights
to sell the securities may be permitted if, in the opinion of counsel
satisfactory to TIROL PINES, the shareholder complies with the provisions of
Rule 144 of the Act.
SECTION-2.
REPRESENTATIONS AND WARRANTIES OF IEMI
(a) Organization and Authority. IEMI is duly organized, validly existing,
and in good standing under the laws of the jurisdictions of its incorporation,
with full corporate power and authority to own its property and assets and to
conduct its business in the manner and in the places in which it is now
conducted. IEMI is qualified to do business as a domestic corporation in the
State of Florida, and the character of the properties owned or leased by IEMI
and the nature of the business conducted by it does not require such
qualification in any other jurisdiction, except where the failure to so qualify
would not have a material adverse affect on IEMI or its business.
(b) Corporate Action. All corporate action necessary on the part of IEMI
to authorize the execution and delivery of this Agreement and the Articles of
Merger and the performance or satisfaction of IEMI's obligations hereunder and
thereunder has been or will have been duly taken prior to the Effective Date.
This Agreement and the Articles of Merger constitute the valid and binding
obligations of IEMI enforceable in accordance with their respective terms.
(c) Capitalization. As of the date hereof, IEMI's entire authorized
capital stock consists of 50,000,000 shares of common stock, $.001, par value
per share, of which 3,000,000 shares are issued and outstanding. All of the
outstanding shares of capital stock of IEMI have been duly issued in accordance
with all applicable laws, rules and regulations, are fully paid and
non-assessable and are owned by its shareholders. There are no outstanding
subscriptions, rights, options, warrants or other agreements obligating IEMI to
issue, sell or transfer any stock or other securities of IEMI, except as
otherwise described in this Agreement.
(d) Articles of Incorporation and Bylaws The Articles of Incorporation and
bylaws of IEMI are true, correct and complete. The minute books of IEMI contain
true and complete records of all meetings and consents in lieu of meetings of
its Board of Directors and shareholders since the date of
Page 4 of 20
5
incorporation and accurately reflect all transactions referred to therein.
(e) Ongoing Business. IEMI has a fully operational revenue producing
company in the environmental waste recycling business.
(f) No Material Adverse Changes. As of the date of this Agreement, there
shall be no material adverse change in the assets, operations, conditions
(financial of otherwise) or prospective business of IEMI; there shall be no
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of IEMI, whether or
not covered by insurance; there shall be no declaration, setting aside or
payment of any dividend or distribution with respect to any redemption or
repurchase of IEMI's capital stock; there shall no sale of an asset (other than
in the ordinary course of business or otherwise approved by TIROL PINES) or
mortgage or pledge by IEMI of any properties or assets
(g) Taxes. IEMI has prepared and filed all appropriate federal, state and
local tax returns of every kind and category (including, without limitation,
income taxes, estimated taxes, excise taxes, sales taxes, inventory taxes, use
taxes, gross receipt taxes, franchise taxes and property taxes) for all periods
prior to and through the date hereof for which any such returns have been
required to be filed by it and has paid all taxes shown to be due by said
returns or on any assessments received by it, or has made adequate provisions
for the payment thereof.
(h) Compliance with Laws. IEMI and all business conducted by it has
complied with all federal, state, county and local laws, ordinances,
regulation.;, inspections, orders, judgments, injunctions, awards or decrees
applicable to it or its business which, if not complied with, would materially
and adversely affect its business.
(i) Compliance with Other Instruments. Neither the execution nor delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will result in any violation of or be in conflict with any term of any contract
or other instrument to which IEMI is a party or of any judgment, statute, rule
or regulation applicable to IEMI, or result in the creation of any lien, charge
or encumbrance on any of its properties or assets, or result in the acceleration
of any obligation of IEMI under any deed of trust, mortgage, lease, or similar
instrument to which it is a party.
(j) No Breach. The execution, delivery and performance of this
Page 5 of 20
6
Agreement and the consummation of the transactions contemplated hereby will not.
(1) violate any provisions of the Articles of Incorporation or Bylaws
of IEMI;
(2) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, or otherwise give
any other contracting party the right to terminate, or which
constitute a default under, any contract or other agreement to
which IEMI is a party or by or to which it or any of its assets
or properties may be bound or subject;
(3) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or
binding upon, IEMI or upon the properties or business of either
of them; or
(4)) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein.
(k) Litigation. Except as disclosed in detail in a letter which shall be
incorporated by reference and made part of this Agreement, there is no
outstanding order, judgment, injunction, award or decree of any court,
government or regulatory body or arbitration tribunal against or involving IEMI.
There is no action, suit or claim or legal, administrative or arbitral
proceeding or any investigation (whether or not the defense thereof or
liabilities in respect thereof are covered by insurance) pending or threatened
against or involving IEMI or any of its respective properties or assets. There
is no fact, event or circumstances that may give rise to any suit, action,
claim, investigation or proceeding except as disclosed in the letter described
above. There is no action, suit or claim or legal, administrative or arbitral
proceeding pending or threatened that would give rise to any right of
indemnification on the part of any director of IEMI or its respective heirs,
executors or administrators of such directors or officers.
(l) Agreements. The document titled "Material Contracts" which shall be
incorporated by reference into this Agreement sets forth any material
contract or arrangement to which IEMI is a party or by or to which it or
its assets, properties or business are bound or subject whether oral or written.
All of the agreements set forth in the document titled "Material Contracts" are
valid, binding enforceable, subsisting agreements, in full force and effect.
IEMI
Page 6 of 20
7
is not in default under any of them (nor is any other party to any of such
agreements, nor does any condition exist which with notice or lapse of time or
both would constitute default thereunder).
(m) Insurance Policies. The document titled "Insurance Policies" which
shall be incorporated by reference and made part of this Agreement contains a
complete and correct list and summary description of all insurance policies held
by IEMI and in force and effect at the date hereof, including but not limited to
key-man insurance, workers' compensation and employer liability, automobile
insurance, malpractice insurance, product liability and title insurance.
(n) Labor Relation. IEMI is not a party to any collective bargaining
agreement governing its employees. There is no pending or threatened election
for union representation of IEMI's employees.
(o) Finders. No broker's or finder's fees will be payable by IEMI and IEMI
agrees to hold TIROL PINES harmless from any claim, commission, finder's or
broker's fee because of any act, omission or statement of either party to the
transaction contemplated herein including but not limited to any securities
violations.
(p) Real Property. The document titled "Real Property" which shall be
incorporated by reference and made part of this Agreement contains a correct and
complete list and brief description of all interest in real property or
buildings improvements thereon (other than a leasehold interest and improvements
relating thereto) owned by IEMI, as referenced in the document described,
whether situated within or without the State of Nevada, including any options to
acquire real property.
(q) Leases. The document titled "Leases" which shall be incorporated by
reference and made part of this Agreement contains a correct and complete list
and brief description of all leases or agreements under which IEMI is lessee of
or holds, or operates any property, real or personal, owned by any third party.
Each of such leases and agreements is in full force and effect and constitutes a
legal, valid, and binding obligation of the respective parties thereto
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to the enforcement of
creditors' rights generally and to the availability of equitable remedies which
are subject to the discretion of the Court before which any proceeding therefor
may be brought.
Page 7 of 20
8
(r) Tangible Assets. The document titled "Tangible Assets" which shall be
incorporated by reference and made part of this Agreement contains a correct and
complete list and brief description of all machinery, equipment, furniture,
leasehold improvements fixtures, vehicles, structures, owned or leased by IEMI,
any related capitalized items or other tangible property material to the
business of IEMI (the "Tangible Asset"). Except as set forth in this document,
IEMI holds all rights, title and interest in all the properties, interests and
assets, real, personal and mixed, free and clear of all liens, pledges,
mortgage, security interests, conditional sales contracts or any other
encumbrances or liens for current taxes not yet delinquent.
(s) Accounts Receivable. All of IEMI's accounts and other receivables or
thereafter acquired are collectible in full, less any reserves set up for
doubtful receivables on its books.
(t) Inventories. IEMI's inventories, as applicable, or thereafter acquired
are valued at cost or market and consist of items which are of a quality and
quantity usable and/or saleable in the ordinary course of IEMI's business.
(u) Liabilities. As of the date of this Agreement, except as set forth in
a document titled "IEMI's Liabilities", IEMI does not have any direct or
indirect indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation', any liability on account of taxes, any other governmental
charge or lawsuit brought, whether or not of a kind required by generally
accepted accounting principles (all of the foregoing collectively defined as
"Liabilities). As of the Effective Date, IEMI will not have any liabilities,
other than liabilities incurred since the date of the signing of this Agreement
in the ordinary course of business. There is no circumstance, condition, event
or arrangement which may hereafter give rise to any Liabilities not in the
ordinary course of business, except as set forth in the document titled "IEMI's
Liabilities".
(v) Conduct of Business Between the date of this Agreement and the
Effective Date, IEMI shall conduct its business only in the ordinary course
thereof consistent with prudent business judgment and past practice and in such
a manner that the representations and warranties contained in this Section 2
shall be true and correct at and as of the Effective Date (except for changes
contemplated, permitted or required by this Agreement) and so that
Page 8 of 20
9
the conditions to be satisfied by IEMI at the Effective Date shall have been
satisfied. IEMI shall not incur expenses or liabilities between the date this
Agreement is signed and the Effective Date other than in the normal course of
business.
(w) Unusual Events. Until the Effective Date, IEMI shall supplement or
amend all relevant documents incorporated by reference and made part of this
Agreement with respect to any matter thereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been set forth or
described in such documents; provided, however, that for the purpose of the
rights and obligations of the parties hereunder, any such material supplemental
disclosure shall not be deemed to have been disclosed to TIROL PINES until the
date IEMI delivers it to TIROL PINES, unless agreed to in writing by TIROL
PINES.
(x) Changes in Business Relationship, IEMI is not aware of any material
changes or threatened changes in its business or client relationships, including
any discontinuance of contractual relationships.
(y) Full Disclosure. No representation or warranty of IEMI and no
statement contained in any document incorporated by reference and made part of
this Agreement furnished by IEMI to TIROL PINES pursuant hereto or in connection
with the transactions contemplated hereby contain or at the Effective Date will
contain any untrue statement of a material fact or omit or will omit to state a
material fact necessary to make such fact not misleading or necessary to provide
TIROL PINES with full information as to IEMI and its affairs.
(z) Representations and Warrants on Effective Date. The representations
and warranties contained in this Section 2 shall be true and complete on the
Effective Date with the same force and effect as though such representations and
warranties had been made on and as of the Effective Date.
Page 9 of 20
10
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF TIROL PINES
TIROL PINES hereby represents and warrants to IEMI as follows:
(a) Public Company. TIROL PINES is a public shell company. Its common
stock is not currently traded. As of the date of this Agreement, it has no
market makers. TIROL PINES does not nor is it required to file reports with the
Securities and Exchange Commission pursuant to Section 13(a) or 15(d) of The
Exchange Act.
(b) Public Float and Shares Eligible for Public Resale. On the Effective
Date, TIROL PINES shall have outstanding 1,000,000 shares of common stock which
are Rule 144K, and of which 50,000 are in the public "float". These shares may
be eligible for public resale under Rule 144 of the Act and upon the timely
filing of Form 15(c)211.
(c) Capitalization. As of the Effective Date, TIROL PINES shall have
50,000,000 shares of authorized capital stock, $.001 par value, of which
1,000,000 will be issued and outstanding. All of the outstanding, shares will be
duly and validly issued in accordance with all applicable laws, rules, and
regulations and are fully paid and non-assessable and free of pre-emptive
rights. There are and as of the Effective Date will be no options, warrants,
subscription or other rights or commitments outstanding for the sale, issuance
or redemption of any shares or other securities of TIROL PINES.
(d) Organization and Authority. TIROL PINES is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Nevada, with full corporate power and authority to own its property and assets
and to conduct its business in the manner and the places in which it is now
conducted.
(e) Corporate Action. All corporate action necessary on the part of TIROL
PINES to authorize the execution and delivery to IEMI of this Agreement and the
Articles of Merger and the performance of its obligations thereunder has been or
will have been duly taken prior to the Effective Date. This Agreement and the
Articles of Merger constitute the valid and binding obligations of TIROL PINES
enforceable in accordance with their respective terms. The execution and
delivery of and the consummation of the transactions provided for in this
Agreement and the Articles of Merger will not violate any
Page 10 of 20
11
provision of the Certificate of Incorporation, Articles of Incorporation or
Bylaws of TIROL PINES, as applicable, any provision of law, or any judgment,
order or decree of any court or agency or government, applicable to TIROL PINES,
or result in a breach of, default under, or acceleration of any obligation under
any indenture or agreement to which TIROL PINES is a party
(f) Compliance with Other Instruments. Neither the execution nor delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will result in any violation of or be in conflict with any term or any contract
or other instrument to which TIROL PINES is a party or of any judgment, decree,
order, statute, rule or regulation applicable to TIROL PINES, or result in the
creation of any lien, charge or encumbrance on any of its properties or assets,
or result in the acceleration of any obligation of TIROL PINES under any deed of
trust, mortgage, lease, or similar instrument to which it is a party.
(g) Compliance with Laws. TIROL PINES has complied with all federal,
state, county, local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect its status as
a public company.
(h) Articles of Incorporation and Bylaws. TIROL PINES's Articles of
Incorporate and Bylaws and any amendments to each, are true, correct and
complete. The minute books of TIROL PINES contain true and complete records of
all meetings and consents in lieu of meetings of their respective Board of
Directors and shareholders since the date of incorporation and accurately
reflect all transactions; referred to therein.
(i) Shell Company. As of the Effective Date, TIROL PINES shall be a shell
company with no assets and no liabilities, including any and all tax
obligations, except as described in Section 3(j). On or before the Effective
Date, TIROL PINES shall furnish to IEMI an audited balance sheet prepared by an
independent certified public accountant that shows TIROL PINES has no assets and
(except as described in Section 3(j)) no liabilities. TIROL PINES shall divest
itself of any business activity on or before the Effective Date. The balance
sheet date shall be a date between the date of this Agreement and the Effective
Date.
(j) Liabilities. Except as set forth in the document titled "Liabilities
of TIROL" which shall be incorporated by reference and made part of this
Page 11 of 20
12
Agreement, TIROL PINES has no liabilities, including any contingent liability
related to litigation, and will have no liabilities as of the Effective Date.
The document shall disclose in detail the amount of any liability and the
circumstances related to such liability. With the exception of any contingent
liability related to litigation disclosed in the document titled "Liabilities of
TIROL PINES," all other liabilities arising from or related to litigation shall
be assumed by TIROL PINES.
(k) Disclosures. No representation or warranty of TIROL PINES in this
Agreement, and no statement contained in any document incorporated by reference
and made a part of this Agreement or other document furnished or to be furnished
by TIROL PINES to IEMI pursuant hereto or in connection with the transactions
contemplated hereby contains or at the Effective Date will contain any untrue
statement of a material fact or omit or will omit to state a material fact
necessary to make it not misleading or necessary to provide IEMI with full
information as to TIROL PINES and its affairs.
SECTION - 4.
COVENANTS OF IEMI.
IEMI covenants and agrees as follows:
(a) Conduct of Business. From the date of this Agreement through the
Effective Date, IEMI shall conduct its business in the ordinary course.
(b) Preservation of Business. From the date hereof through the Effective
Date, IEMI shall use its best efforts to preserve its business organization
intact, keep available the services of its present officers, employees,
consultants and agents, maintain its present suppliers and customers and
preserve its goodwill.
(c) Insurance. IEMI at all times will have in effect and maintain
insurance now in force on or with respect to its properties and assets and its
business and will at all times have in effect and maintain insurance coverage
against all hazards, casualties, liabilities, and losses in the amount and of
the character and kind normally carried by corporations engaged in a business
similar to that conducted by it.
(d) Litigation. IEMI shall promptly notify TIROL PINES of any lawsuits,
claims, proceedings or investigations which after the date hereof are
Page l2 of 20
13
threatened or commenced against it or any of their respective officers,
directors, employees, consultants, agents, shareholders or other representatives
with respect to the affairs of IEMI.
(e) Dissenting Shareholders. Dissenters rights shall not be demanded prior
to the Effective Date by any of the shareholders of IEMI pursuant to the
provisions of Nevada law, if any, as to dissenters rights.
(f) Continued Effectiveness of Representations and Warranties. From the
date hereof through the Effective Date, IEMI shall conduct its business in such
a manner so that the representations and warranties contained in Section 2 shall
continue to be true and correct on and as of the Effective Date and as if made
on the date of this Agreement, and shall:
(i) promptly give notice to TIROL PINES of any event, condition or
circumstances occurring from the date hereof through the Effective Date
which would render any of the representations or warranties untrue,
incomplete, insufficient or constitute a violation or breach of this
Agreement; and
(ii) supplement the information contained herein in order that such
information is kept current, complete and accurate.
SECTION 5.
COVENANTS OF TIROL PINES.
TIROL PINES covenants and agrees as follows:
(a) Compliance with Laws. TIROL PINES will comply in all material respects
with federal and state regulations necessary to effectuate the exchange of all
outstanding shares of IEMI for shares of common stock of TIROL PINES, as
contemplated by this Agreement
(b) Litigation. TIROL PINES shall promptly notify IEMI of any lawsuits,
claims, proceedings or investigations which after the date hereof are threatened
or commenced against it or against any of their respective officers, directors,
employees, consultants, agents, shareholders or other representatives with
respect to the affairs of TIROL PINES.
(c) Dissenting Shareholders. Dissenters rights shall not be demanded
Page 13 of 20
14
prior to the Effective Date by any of the shareholders of TIROL PINES pursuant
to the provisions of Nevada law, if any, as to dissenters rights.
(d) Continued Effectiveness of Representations and Warranties. From the
date hereof to the Effective Date, TIROL PINES shall conduct its business in
such a manner so that the representations and warranties contained in Section 3
shall continue to be true and correct on and as of the Effective Date and as if
made on the date of this Agreement, and shall:
(i) promptly give notice to IEMI of any event, condition or
circumstances occurring from the date hereof through the Effective
Date which would render any of the representations or warranties
untrue, incomplete, insufficient or constitute a violation or breach
of this Agreement; and
(ii) supplement the information contained herein in order that such
information is kept current, complete and accurate.
SECTION 6.
CONDITIONS OF OBLIGATIONS OF TIROL PINES.
The obligations of TIROL PINES to consummate this Agreement and the
transactions contemplated hereby are subject to the satisfaction at or before
the Effective Date of every one of the following conditions, any of which TIROL
PINES may in its sole discretion waive:
(a) Representations and Warranties. The representations and warranties of
IEMI set forth in Section 2 hereof shall be true and correct at and as of the
Effective Date with the same effect as though such representations and
warranties had been made on and as of the date of this Agreement, and any
letter, statement, list, certificate or other written information furnished by
IEMI pursuant hereto or in connection on with the transactions contemplated
hereby shall be true and correct in all material respects at and as of the date
or dates stated therein.
(b) Performance of IEMI. IEMI shall have performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by it either prior to or at the Effective Date.
Page 14 of 20
15
(c) Governmental Permits and Approvals. Corporate Resolutions. Any and all
permits and approvals from any governmental or regulatory body required for the
lawful consummation of the transaction contemplated shall have been obtained.
(d) Third Party Consents. All consents, Permits and approvals from parties
to any contracts or other agreements with IEMI which may be required in
connection with the performance by IEMI of its obligations under such contacts
or other agreements after the Effective Date shall have been obtained.
(e) Litigation. No action, Suit or proceeding shall have been instituted
before any court or governmental or regulatory body or instituted or threatened
by a governmental or regulatory body to restrain, modify or prevent the carrying
out of the transactions contemplated hereby or to seek damages or a discovery
order in connection with such transactions, or which has or may have, in the
opinion of TIROL PINES, a materially adverse effect on the assets, properties,
business, operations or condition (financial or otherwise) of TIROL PINES.
(f) Absence of Adverse Changes. Since the date of this Agreement, there
shall have been no change in the financial condition, business, or properties of
IEMI which materially and adversely affects the conduct of its business or its
condition, financial or otherwise.
(g) Satisfaction of Indebtedness. Indebtedness and obligations of IEMI to
any of its shareholders and affiliates shall have been satisfied and discharged,
and any documentation evidencing such satisfaction or discharge shall have been
received as requested by TIROL PINES.
(h) No Restraining Order There shall not have been any action or
proceeding instituted or threatened before any court or governmental agency to
restrain or prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated hereby, which in
the opinion of TIROL PINES make it inadvisable to consummate such transaction.
(i) Compliance Certificate. TIROL PINES shall have received a certificate
signed by the President dated as of the Effective Date and satisfactory in form
and substance to TIROL PINES certifying to the fulfillment of the conditions
specified in Section 6(b).
Page 15 of 20
16
SECTION 7.
CONDITIONS TO THE OBLIGATIONS OF IEMI.
The obligations of IEMI to consummate this Agreement and the transactions
contemplated hereby are subject to the satisfaction at or before the Effective
Date of each and every one of the following conditions, any of which IEMI may in
its sole discretion waive:
(a) Representations and Warranties. The representations and warranties of
TIROL PINES as set forth in Section 3 hereof shall be true and correct at and as
of the Effective Date with the same effect as though such representations and
warranties had been made on the date of this Agreement, and any letter,
statement, list, certificate or other written information furnished by TIROL
PINES pursuant hereto or in connection with the transactions contemplated hereby
shall be true and correct in all material respects at and as of the date or
dates stated therein.
(b) Performance by TIROL PINES. TIROL PINES shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it either prior to or at the Effective Date.
(c) Absence of Adverse Changes. Since the date of this Agreement, there
shall have been no change in TIROL PINES which materially and adversely affects
its status as a public company.
(d) Compliance Certificate. IEMI shall have received a certificate signed
by the President of TIROL PINES dated as of the Effective Date and satisfactory
in form and substance to IEMI certifying to the fulfillment of the conditions
specified in Section 7(b).
(e) Stock Certificates. At the Effective Date, each Shareholder of IEMI
shall receive a certificate or certificates representing the number of shares of
common stock of TIROL PINES they are entitled to.
Page 16 of 20
17
SECTION 8.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties, agreements, covenants, and obligations
herein made by or in any of the documents incorporated by reference and made a
part of this Agreement shall be deemed to have been relied upon by each of the
other parties, shall survive the Effective Date for a period of two years
thereafter (except that the representations with respect to taxes of IEMI in
Section 2(h) shall continue to exist after the Effective Date for a period of
three years), and shall not merge in the performance of any obligation by any
party hereto.
SECTION 9.
TERMINATION.
(a) This Agreement may be terminated at any time prior to the filing of the
Articles of Merger in the office of the Secretary of the State of Nevada by:
(i) Mutual consent of IEMI and TIROL PINES;
(ii) TIROL PINES if, at the Effective Date, any of the conditions set
forth in Section 6 shall not have been satisfied;
(iii) IEMI if, at the Effective Date, any of the conditions set forth
in Section 7 shall not have been satisfied;
(iv) TIROL PINES, if IEMI has breached any material representation
warranty, covenant or agreement contained in this Agreement;
(v) IEMI, if TIROL PINES has breached any material representation,
warranty, covenant or agreement contained in this Agreement; and
(vi) TIROL PINES, if any legal proceeding is commenced or threatened
by any governmental or regulatory agency or other person directed
against the consummation of the transaction or any other transaction
under this Agreement.
Page 17 of 20
18
(b) If this Agreement shall be terminated as provided in Section 9(a), the
Articles of merger shall be deemed to have been abandoned and shall be void
and of no further effect, without any liability on the part of any of the
parties thereto or the stockholders, directors, officers, employees or
agents of any of them.
SECTION 10.
INDEMNIFICATION.
(a) Obligation of IEMI to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 8, IEMI, its
respective officers, directors and employees hereby agree to indemnify, defend
and hold TIROL PINES harmless from and against any losses, liabilities, damages,
deficiencies, costs or expenses (including interest, penalties and reasonable
attorneys fees and disbursements) based upon, arising out of or otherwise due to
any material inaccuracy in or any breach of any representation, warranty,
covenant or agreement of IEMI contained in this Agreement or in any document or
other writing delivered pursuant to this Agreement.
(b) Obligation of TIROL PINES to Indemnify. Subject to the limitations on
the survival of representations and warranties contained in Section 8, TIROL
PINES, its respective officers, directors and employees, hereby agree to
indemnify, defend and hold IEMI harmless from and against any losses,
liabilities, damages, deficiencies, costs or expenses (including interest,
penalties and reasonable attorneys fees and disbursements) based upon, arising
out of or otherwise due to any material inaccuracy in or any breach of any
representation, warranty, covenant or agreement of TIROL PINES contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
SECTION 11.
MISCELLANEOUS.
(a) Notices. All notices or requests, demands and other communications
hereunder shall be deemed to have been duly given if in writing and delivered or
mailed postage prepaid to the parties as follows:
Page 18 of 20
19
If to IEMI:
INTERNATIONAL ENVIRONMENTAL MANAGEMENT, INC.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: XXXXXX XXXXXXX., President
If to TIROL PINES:
TIROL PINES
000 XX 00 XXXX
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx, President
The address of any party for any such notice, request or other
communication may be changed by giving notice of such change to the other
parties as herein above provided.
(b) Fees and Expenses. Each of the parties will bear its own costs and
expenses in connection with the negotiation and the consummation of this
Agreement.
(c) Amendment This Agreement may be amended by mutual agreement of the
parties at any time prior to the Effective Date.
(d) Further Assurances. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use it best efforts to fulfill or obtain the fulfillment
of the conditions.
(e) Law Governing This Agreement shall be deemed to have been entered into
under the laws of the State of Nevada, and the rights and obligations of the
parties hereunder shall be governed and determined according to the laws of said
state, without regard to applicable conflicts of laws.
(f) Resolution of Disputes. Any dispute arising out of or related to this
Agreement or the breach thereof shall be resolved by litigation in Broward
Page 19 of 20
20
County, Florida. The prevailing party in any such litigation shall be entitled
to reasonable attorneys fees and costs.
(g) Entire Agreement and Counterparts. This Agreement and the documents
incorporated by reference and made a part of it and any other instruments and
agreements to be delivered in conjunction herewith constitute the entire
agreement between the parties with respect to the transactions contemplated
herein and supersede all prior agreements and understandings of the parties with
respect thereto. This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one instrument.
(h) Construction. This Agreement shall be considered within the fair
meaning of each of its terms and not against the party drafting the document.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto under
their respective seals, as of the day and year first above written.
TIROL PINES
By: /s/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx, President
INTERNATIONAL ENVIRONMENTAL MANAGEMENT, INC.
By: /s/ XXXXXX XXXXXXX
-----------------------------------
Xxxxxx Xxxxxxx, President
Page 20 of 20
