EXHIBIT 10.34
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STOCK PURCHASE AGREEMENT AND PLAN OF REORGANIZATION
Dated February 23, 1998
by and among
TOP FORM, INC.,
TRUEVISION LASER CENTERS OF ALBUQUERQUE, INC.
and
TRUEVISION LASER CENTERS, INC., One of Its Shareholders
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TABLE OF CONTENTS
INTRODUCTION .............................................................5
RECITALS..................................................................5
ARTICLES I. PLAN OF REORGANIZATION........................................5
1.01 Sale and Transfer of TrueVision Albuquerque Stock...............5
1.02 Consideration...................................................5
1.03 Assignment of Contracts and Assumption of
Obligations.....................................................6
1.04 Plan of Reorganization..........................................6
ARTICLE II. CLOSING.......................................................6
2.01 Closing Date....................................................6
2.02 Delivery........................................................6
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS...............7
3.01 Title to Shares.................................................7
3.02 Authorization...................................................7
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF TRUEVISION
ALBUQUERQUE...............................................................7
4.01 Organization....................................................8
4.02 Capitalization..................................................8
4.03 TrueVision Albuquerque Subsidiaries.............................8
4.04 Validity of Agreement...........................................8
4.05 TrueVision Albuquerque Financial Statements.....................8
4.06 Events Since Date of TrueVision Albuquerque Balance Sheet.......9
4.07 Properties.....................................................11
4.08 Accounts Receivable............................................11
4.09 Taxes..........................................................12
4.10 Compensation...................................................12
4.11 Compliance with Law............................................12
4.12 Litigation.....................................................13
4.13 Contracts......................................................13
4.14 Real Property..................................................14
4.15 Proprietary Rights.............................................15
4.16 Toxic Wastes; Employee Safety, etc.............................15
4.17 Insurance......................................................15
4.18 Bank Accounts..................................................16
4.19 No Conflict....................................................16
4.20 No Default.....................................................16
4.21 Certain Advances...............................................16
4.22 Related Parties................................................17
4.23 Copies of Certain Documents....................................17
4.24 Underlying Documents...........................................17
4.25 Disclosure.....................................................17
4.26 Effect of Agreement............................................17
4.27 Indemnification of Top Form....................................18
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF TOP FORM.....................19
5.01 Organization...................................................19
5.02 Validity of Agreement..........................................19
5.03 Effect of Agreement............................................19
5.04 Top Form Corporae Documents....................................19
5.05 Top Form Interim Finanical Statements..........................20
5.06 Adverse Changes................................................20
5.07 Registration of Top Form Common................................20
5.08 Shares of Top Form Common Stock................................21
5.09 Top Form Board Action..........................................21
5.10 Subsequent Private Placement of Top Form Common................21
5.11 Indemnification of TrueVision Albuquerque and
the Shareholder................................................21
ARTICLE VI. ACCESS TO INFORMATION; CONFIDENTIALITY........................22
6.01 Access.........................................................22
6.02 Confidentiality................................................23
ARTICLE VII. COVENANTS OF TRUEVISION ALBUQUERQUE AND CERTAIN
SHAREHOLDERS..............................................................23
7.01 Conduct of Business............................................23
7.02 Notice of Certain Adverse Changes, Defaults
or Claim.......................................................24
7.03 Actions Requiring Consent......................................24
7.04 Implementation of Representations and Warranties...............24
7.05 Communications.................................................24
7.06 Other Negotiations.............................................24
7.07 Cooperation....................................................25
ARTICLE VIII. COVENANTS OF TOP FORM.......................................25
8.01 Implementation of Representations and Warranties...............25
8.02 Communications.................................................25
8.03 Options and Warrants...........................................25
8.04 Additional SEC Documents.......................................26
ARTICLE IX. SECURITIES LAW MATTERS........................................26
9.01 Securities Act Exemptions......................................26
9.02 Stock Restrictions.............................................26
9.03 Other Securities Qualifications................................26
9.04 Representations of Top Form....................................26
9.05 Legend Restrictions............................................27
ARTICLE X. CONDITIONS TO OBLIGATIONS OF THE SHAREHOLDER...................27
10.01 Accuracy of Representations and Warranties.....................27
10.02 Fulfillment of Covenants.......................................27
10.03 Approval of Sale...............................................27
10.04 No Litigation..................................................27
ARTICLE XI. CONDITIONS TO OBLIGATIONS OF TOP FORM.........................28
11.01 Accuracy of Representations and Warranties.....................28
11.02 Fulfillment of Covenants.......................................28
11.03 Approval of Sale...............................................28
11.04 Consents Obtained..............................................28
11.05 No Litigation..................................................28
11.06 Accountant's Review............................................28
11.07 Accounting Treatment...........................................29
11.08 Top Form Review................................................29
11.09 Resignation of Directors.......................................29
11.10 Sale of TrueVision Albuquerque Stock...........................29
ARTICLE XII. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS............................................................29
ARTICLE XIII. PAYMENT OF EXPENSES.........................................29
13.01 Expenses.......................................................29
13.02 Brokers........................................................30
ARTICLE XIV. GENERAL PROVISIONS...........................................30
14.01 Notices........................................................30
14.02 Headings.......................................................31
14.03 Counterparts...................................................31
14.04 Assignment.....................................................31
14.05 Waiver.........................................................31
14.06 Entire Agreement...............................................31
14.07 Good Faith.....................................................31
14.08 Applicable Law.................................................32
14.09 Severability...................................................32
SCHEDULE OF EXHIBITS......................................................33
STOCK PURCHASE AGREEMENT AND PLAN OF REORGANIZATION
THIS STOCK PURCHASE AGREEMENT is made and entered into as of the twenty
third day of February, 1998, by and among Top Form, Inc., a Delaware
corporation ("Top Form"); TrueVision Laser Centers of Albuquerque, Inc., a
New mexico corporation ("TrueVision Albuquerque"); and the majority
shareholder of TrueVision Albuquerque, TrueVision Laser Centers, Inc., a
Nevada corporation (the "Shareholder").
R E C I T A L S:
A. The Shareholder is the holder of not less than eight-four percent
(84%) of the outstanding voting stock of TrueVision Albuquerque (the
"TrueVision Albuquerque Stock");
B. Top Form desires to purchase from the Shareholder, and the
Shareholder desires to sell to Top Form, all of the outstanding TrueVision
Albuquerque Stock owned by it in exchange for Common Stock of Top Form (the
"Top Form Common"), the exchange of certain warrants (the "Consultant's
Warrants") issued by TrueVision Albuquerque pursuant to a consulting
agreement with RB&A, Inc. (the "Consulting Agreement") and certain warrants
to purchase additional Top Form Common Stock; and
C. The parties desire to effect the transaction pursuant to plan of
reorganization under Section 368(a)(1)(B), of the Internal Revenue Code of
1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
ARTICLE I.
PLAN OF REORGANIZATION
1.01 SALE AND TRANSFER OF TRUEVISION ALBUQUERQUE STOCK.
Subject to the terms and conditions of this Agreement, on the Closing Date
(as hereinafter defined) the Shareholder agrees to sell, and Top Form agrees
to purchase, all of the shares of TrueVision Albuquerque Stock owned by the
Shareholder.
1.02 CONSIDERATION. As payment for the TrueVision Albuquerque
Stock, Top Form shall issue and deliver an aggregate of 18,666,667 shares of
Top Form Common, the Consultant's Warrants to purchase 4,000,000 shares of
Top Form Common at an exercise price of $.09 per share, and in addition,
warrants entitling the Shareholder to purchase an additional 18,666,667
shares of Top Form Common at various exercise prices as set forth on
Exhibit 1.02 hereto ("Top Form Warrants"), which shall be delivered to the
Shareholder. The Top Form warrants shall be exercisable for a term of one
year from the date they are granted by Top Form and shall include customary
terms and conditions.
1.03 ASSIGNMENT OF CONTRACTS AND ASSUMPTION OF OBLIGATIONS. As
additional consideration for the consummation of the transactions
contemplated by this Agreement, Top Form shall assume TrueVision
Albuquerque's obligation to perform up to fifty (50) laser correction
surgical procedures (the "TrueVision Surgeries") which have been granted to
certain shareholders of TrueVision Albuquerque's parent corporation,
TrueVision Laser Centers, Inc. ("TrueVision" or "Shareholder"). The
indebtedness which exists as of the Closing Date between TrueVision
Albuquerque and TrueVision shall be reduced by the sum of $1,000 for each
TrueVision Surgery performed by Top Form in accordance with this provision up
to a maximum amount of $50,000 of such indebtedness. Top Form further agrees
to cause to be paid to TrueVision, on behalf of TrueVision Albuquerque, from
the net proceeds of the offering of Top Form's Common Stock (as defined in
Section 5.10 hereof), the sum of $125,000 towards the balance of the
indebtedness existing as of the Closing Date between TrueVision and
TrueVision Albuquerque.
1.04 PLAN OF REORGANIZATION. The parties hereby adopt this Agreement as
a plan of reorganization under Section 368(a)(1)(B) of the Code.
ARTICLE II.
CLOSING
2.01 CLOSING DATE. The Closing of the purchase and sale of the
TrueVision Albuquerque Stock hereunder (the "Closing") shall be held at the
offices of TrueVision Albuquerque at 1:00 p.m. on March 31, 1998, or at such
other time and place upon which Top Form and TrueVision Albuquerque may agree
in writing (the "Closing Date"); provided, however, that any agreement
postponing the
Closing Date beyond March 31, 1998 shall also require the consent of all the
parties hereto.
2.02 DELIVERY. At the Closing, the Shareholder shall deliver to Top
Form a stock certificate or certificates, duly endorsed with signatures
guaranteed, representing the shares of TrueVision Albuquerque Stock to be
purchased from such Shareholder and totaling an aggregate of eighty-four
thousand (84,000) shares, and the Consultant's Warrant to purchase 18,000
shares of TrueVision Albuquerque Stock duly endorsed with appropriate
signature guarantees for transfer. Upon receipt of the stock certificate or
stock certificates and Consultant's Warrant referenced in the preceding
sentence, Top Form shall issue and deliver to the Shareholder an aggregate
of 18,666,667 shares and Warrants to purchase an aggregate of 18,666,667
shares of Top Form, and shall deliver a warrant in exchange for the
Consultant's Warrant to acquire 4,000,000 shares of Top Form at $0.09 per
share on substantially the same terms and conditions as are recited in the
Consultant's Warrant.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS AND HOLDER OF
CONSULTANT'S WARRANT
The Shareholder and the holder of the Consultant's Warrant each
represent and warrant to Top Form as set forth below that:
3.01 TITLE TO SHARES. Each of them is the owner, beneficially and of
record, of either the shares of TrueVision Albuquerque Stock or the
Consultant's Warrant to be sold by such Shareholder or Warrant Holder
hereunder, free and clear of any liens, encumbrances, security agreements,
options, claims, charges or restrictions of any nature whatsoever. Further,
that such Shareholder shall cause its shareholders to vote in favor of the
consummation of the transactions contemplated by this Agreement, at any
meeting of such Shareholder which may be required hereunder.
3.02 AUTHORIZATION. Such Shareholder has the full power and authority
to execute and deliver this Agreement and to execute and deliver the
Consulting Agreement as a part hereof. This Agreement constitutes the valid
and binding obligation of such Shareholder, enforceable in accordance with
its terms, except as enforcement
may be limited by applicable bankruptcy laws or other similar laws affecting
creditors' rights generally and by principles of equity.
ARTICLE IV.
JOINT REPRESENTATIONS AND WARRANTIES OF
TRUEVISION ALBUQUERQUE AND THE SHAREHOLDER
Subject to and except for the information which is set forth in a list
of exceptions, identified by the Section in this Article to which they
pertain, and contained in a schedule delivered to Top Form prior to the
execution of this Agreement and signed for identification on behalf of Top
Form and TrueVision Albuquerque (the "TrueVision Albuquerque Schedule"),
TrueVision Albuquerque and the Shareholder represents and warrants to Top
Form that;
4.01 ORGANIZATION. TrueVision Albuquerque is a corporation duly
organized, validly existing and in good standing under the laws of the State
of New Mexico, and has full corporate power and authority to carry on its
business as it is now being conducted. TrueVision Albuquerque is duly
qualified to do business and is in good standing in each jurisdiction in
which the nature of its business or properties make such qualification
necessary, except where the failure to be so qualified will not have a
material adverse effect on TrueVision Albuquerque.
4.02 CAPITALIZATION. The authorized capital stock of TrueVision
Albuquerque consists of 100,000 shares of Common Stock all of which is issued
and outstanding. All such outstanding shares have been duly authorized, are
validly issued, fully paid and non-assessable and not subject to preemptive
rights created by statute, TrueVision Albuquerque's Articles of Incorporation
or Bylaws or any agreement to which TrueVision Albuquerque is a party or by
which it is bound. All such outstanding shares have been issued in accordance
with all applicable state and federal securities laws. Except as set forth
herein, and except as required by the Consulting Agreement and Consultant's
Warrant, there are no options, warrants, calls, rights, commitments or
agreements of any character to which TrueVision Albuquerque is a party or by
which it is bound obligating TrueVision Albuquerque to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of its
capital stock or obligating TrueVision Albuquerque to grant, extend or enter
into any such option, warrant, call, right, commitment or agreement.
4.03 TRUEVISION ALBUQUERQUE SUBSIDIARIES. TrueVision Albuquerque owns
no shares of capital stock directly or indirectly, of any other corporation,
partnership or joint venture interest.
4.04 VALIDITY OF AGREEMENT. TrueVision Albuquerque and the Shareholder
have full corporate power and authority to execute and deliver this
Agreement. This Agreement constitutes the valid and binding obligation of
TrueVision Albuquerque, enforceable in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy laws or other similar
laws affecting creditors' rights generally and by principles of equity. The
execution and delivery of this Agreement by TrueVision Albuquerque, and the
consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action, and such execution and delivery
do not require the consent, approval or authorization of any person, public
authority or other entity.
4.05 TRUEVISION ALBUQUERQUE FINANCIAL STATEMENTS. TrueVision
Albuquerque has furnished to Top Form true and correct copies of its
unaudited consolidated statements of operations, statements of shareholders'
equity and statements of changes in financial condition for its fiscal year
ended September 30, 1997, and for the interim period from October 1, 1997 to
January 31,1998, and TrueVision Albuquerque's unaudited consolidated balance
sheets as of the end of each such fiscal period (the balance sheet as of
September 30, 1997, and as of January 31, 1998, hereinafter referred to as
the "TrueVision Albuquerque Balance Sheets", and all such financial
statements, together with the notes thereto, being hereinafter referred to
collectively as the "TrueVision Albuquerque Financial"). All of the
TrueVision Albuquerque Financials: (i) are in accordance with TrueVision
Albuquerque's books and records; (ii) present fairly the financial position
of TrueVision Albuquerque and the results of its operations as of the
respective dates and for the periods indicated thereon (subject to normal
audit adjustments); and (iii) have been prepared in accordance with generally
accepted accounting principles, applied on a consistent basis. At the date of
the TrueVision Albuquerque Balance Sheets, TrueVision Albuquerque had no
material liabilities or obligations, fixed, contingent or otherwise, not set
forth on or reserved against in the TrueVision Albuquerque Financials, or the
accompanying notes thereto, or in the TrueVision Albuquerque Schedule. For
purposes of this Agreement, "materiality" shall mean
amounts in excess of $10,000 either individually or in the aggregate.
4.06 EVENTS SINCE DATE OF TRUEVISION ALBUQUERQUE BALANCE SHEETS. Since
the date of the TrueVision Albuquerque Balance Sheet, except as otherwise
contemplated by this Agreement, and except as described in the TrueVision
Albuquerque Schedule, TrueVision Albuquerque has conducted its business only
in the ordinary and usual course and, without: (i) limiting the generality of
the foregoing
(a) TrueVision Albuquerque has not sustained any damage,
destruction or loss by reason of fire, explosion, earthquake, casualty, labor
trouble, requisition or taking of property by any government or agency
thereof, windstorm, embargo, riot, act of God or public enemy, flood,
accident, revocation of license or right to do business, total or partial
termination, suspension, default or modification of contracts, governmental
restriction or regulation, other calamity, or other similar or dissimilar
event (whether or not covered by insurance) materially and adversely
affecting the condition (financial or otherwise), business, net worth,
assets, properties or operations of TrueVision Albuquerque taken as a whole.
(b) There have been no changes in the condition (financial or
otherwise), business, net worth, assets, properties, operations, obligations
or liabilities (fixed or contingent) of TrueVision Albuquerque which, in the
aggregate, have had or may be reasonably expected to have (whether before or
after the Closing Date) a materially adverse effect on the condition
(financial or otherwise), business, net, worth, assets, properties or
operations of TrueVision Albuquerque as a whole.
(c) Except with respect to the Consultant's Warrants, TrueVision
Albuquerque has not issued, or authorized for issuance, any equity security,
bond, note or other security or granted, or entered into, any commitment or
obligation to issue or sell any such equity security, bond, note or other
security, whether pursuant to offers, stock option agreements, stock bonus
agreements, stock purchase plans, incentive compensation plans, warrants,
calls, conversion rights or otherwise.
(d) Except with respect to those obligations contained in the
Consulting Agreement, TrueVision Albuquerque has not
incurred additional debt for borrowed money, nor incurred any obligation or
liability (fixed, contingent or otherwise) except in the ordinary and usual
course of business.
(e) TrueVision Albuquerque has not declared or made any dividend,
payment or other distribution on or with respect to any share of its capital
stock.
(f) TrueVision Albuquerque has not purchased, redeemed or
otherwise acquired or committed itself to acquire for a consideration,
directly or indirectly, any share or shares of its capital stock.
(g) TrueVision Albuquerque has not mortgaged, pledged, otherwise
encumbered or subjected to lien any of its assets or properties, tangible or
intangible, nor committed itself to do any of the foregoing, except for liens
for current taxes which are not yet due and payable and purchase money liens
arising out of the purchase or sale of products or service made in the
ordinary and usual course of business.
(h) TrueVision Albuquerque has not disposed of, or agreed to
dispose of, any asset or property, tangible or intangible, except in the
ordinary and usual course of business, and in each case for a consideration
at least equal to the fair value of such asset or property, nor leased or
licensed to others (including officers and directors), or agreed to lease or
license, any asset or property.
(i) TrueVision Albuquerque has not purchased or agreed to purchase
or otherwise acquire any debt or equity securities of any corporation,
partnership, joint ventures, firm or other entity.
(j) Except with respect to those obligations contained in the
Consulting Agreement, TrueVision Albuquerque has not entered into any
transaction or contract, or made any commitment to do the same, except in
the ordinary and usual course of business and not involving an amount in any
case in excess of $10,000 nor waived any right of substantial value or
cancelled any debt or claim or voluntarily suffered any extraordinary loss.
(k) TrueVision Albuquerque has not sold, assigned, transferred or
conveyed, or committed itself to sell, assign, transfer or convey, any
Proprietary Right (as defined in Section 4.15).
(l) TrueVision Albuquerque has not effected or agreed to any
amendment or supplement to any employee profit sharing, stock option, stock
purchase, pension, bonus, incentive, retirement, medical reimbursement, life
insurance, deferred compensation or any other employee benefit plan or
arrangement.
(m) TrueVision Albuquerque has not effected or agreed to effect
any change in its directors or executive management.
(n) TrueVision Albuquerque has not effected or committed itself to
effect any amendment or modification to its Articles of Incorporation or
Bylaws.
4.07 PROPERTIES. The TrueVision Albuquerque Balance Sheets reflects
all of the assets and properties, real and personal, used by TrueVision
Albuquerque in its business or otherwise held by it, except for: (i) property
acquired or disposed of in the ordinary and usual course of business since
the date of such balance sheet; and (ii) property not required under
generally accepted accounting principles to be reflected thereon. Except as
set forth in the TrueVision Albuquerque Schedule, TrueVision Albuquerque has
good and marketable title to all assets and properties listed on the
TrueVision Albuquerque Balance Sheet and thereafter acquired, free and clear
of any imperfections of title, lien, claim, encumbrance, restriction, charge
or equity of any nature whatsoever, except for the lien of current taxes not
yet due and payable. All of the fixed assets and properties listed on the
TrueVision Albuquerque Balance Sheet and thereafter acquired are in good
operating condition and are free from any material defect.
4.08 ACCOUNTS RECEIVABLE. All of the accounts receivable of TrueVision
Albuquerque shown on the TrueVision Albuquerque Balance Sheet or thereafter
acquired arose and are collectible in the ordinary and usual course of
TrueVision Albuquerque's business, except that the value of any account
receivable the collection of which is doubtful or which is subject to a
defense or set-off has been written down to an amount not in excess of
realizable market value or adequate reserves or allowances therefor have been
provided. The values at which accounts receivable are carried reflect the
accounts receivable valuation policy of TrueVision Albuquerque, which is
consistent with its past practice and in accordance with generally accepted
accounting principles applied on a consistent basis.
4.09 TAXES. TrueVision Albuquerque has duly filed with the appropriate
United States, state, local and foreign governmental agencies, all tax
returns and reports required to be filed and, and except with respect to
state sales taxes due to the New Mexico Department of Revenue in the
approximate sum of $50,000, has paid or accrued in full all taxes, interest,
penalties, assessments or deficiencies, if any, due to, or claimed to be due
by, any taxing authority. The TrueVision Albuquerque Balance Sheet includes
adequate provision for all such taxes, interest, penalties, assessments or
deficiencies, if any, through the date indicated thereon. TrueVision
Albuquerque has not executed or filed with any taxing authority any agreement
extending the period for assessment or collection of any taxes. TrueVision
Albuquerque is not a party to any pending action or proceeding, nor, to the
best of its knowledge, is any such action or proceeding threatened by any
governmental authority for the assessment or collection of taxes, interest,
penalties, assessments or deficiencies, and no claim for assessment or
collection of taxes, interest, penalties, assessments or deficiencies has been
asserted against it. No issue has been raised by any federal, state, local,
or foreign taxing authority in connection with an audit or examination of
TrueVision Albuquerque's tax returns, business or properties which has not
been settled or resolved.
4.10 COMPENSATION. The TrueVision Albuquerque Schedule contains a
full and complete list of all persons who served as directors, officers,
employees or consultants of TrueVision Albuquerque at January 31, 1998,
specifying their names and job designations, the annual compensation paid or
payable to such persons and the basis of such compensation, whether fixed or
commission or a combination thereof. Except as otherwise disclosed in the
TrueVision Albuquerque Schedule, since January 31, 1998, there has been no
material change in compensation, by means of wages, salaries, bonuses,
gratuities or otherwise, to any such director, officer, employee or consultant
of TrueVision Albuquerque.
4.11 COMPLIANCE WITH LAW. Except for possible minor exceptions, the
curing or non-curing of which would not have a material effect on the
condition (financial or otherwise), business, net worth, assets, properties,
or operations of TrueVision Albuquerque has been conducted in accordance with
all applicable laws, regulations, orders and other requirements of
governmental authorities, including, without limiting the
generality of the foregoing, all laws, regulations and orders relating to
employment practices and procedures and the health and safety of employees.
TrueVision Albuquerque has not received any notice of alleged violations of
any of the foregoing.
4.12 LITIGATION. Except as set forth in the TrueVision Albuquerque
Schedule, there is no claim, dispute, action, proceeding, suit, appeal or
investigation, at law or in equity, pending against TrueVision Albuquerque or
involving any of its business or properties, before any court, agency,
authority, arbitration panel or other tribunal, and, to the best knowledge of
TrueVision Albuquerque and the Shareholder, none has been threatened. To the
best knowledge of TrueVision Albuquerque and the Shareholder, there are no
facts which, if known to shareholders, customers, governmental authorities or
other persons, would result in any such claim, dispute, action, proceeding,
suit, appeal or investigation which would have a material adverse effect on
the condition (financial or otherwise), business, net worth, assets,
properties or operations of TrueVision Albuquerque Schedule. TrueVision
Albuquerque is not subject to any order, writ, injunction or decree of any
court, agency, authority, arbitration panel or other tribunal, or in default
with respect to any notice, order, writ, injunction or decree.
4.13 CONTRACTS. The TrueVision Albuquerque Schedule contains a full
and complete list (subject in the case of clause (i) below to the dollar
amount indicated therein) of each partially or totally executory contract or
agreement to which TrueVision Albuquerque is a party, or by which it is bound
in any respect, including, without limitation, any and all: (i) contracts or
agreements for the purchase, sale, lease or other disposition of equipment,
goods, materials, research and development, supplies, studies, or capital
assets, or for the performance of services, in any case involving more than
$10,000, except that such limitation as to dollar amount shall not apply as
to any contracts or agreements covered by Section 4.22; (ii) contracts or
agreements for the joint performance of work or services, and all other joint
venture or teaming agreements, (iii) management or employment contracts,
consulting contracts, collective bargaining contracts or termination and
severance agreements; (iv) notes, mortgages, deeds of trues, loan agreements,
security agreements, guarantees, debentures, indentures, credit agreements
and other evidences of indebtedness; (v) pension, retirement, profit sharing,
deferred
compensation, bonus, incentive, life insurance, hospitalization, or other
employee benefit plans or arrangements (including, without limitation, any
contracts or agreements with trustees, insurance companies or others relating
to any such employee benefit plan or arrangement); (vi) stock option, stock
purchase, warrant, repurchase or other contracts or agreements relating to
any shares of capital stock; (vii) contracts or agreements with agents,
brokers, consignees, sales representatives or distributors; (viii) contracts
or agreements with any director, officer, employee, consultant or
shareholder; (ix) powers of attorney or similar authorizations granted to
third parties; and (x) licenses, sublicensees, royalty agreements, and other
contracts or agreements to which TrueVision Albuquerque is a party, or
otherwise subject, relating to technical assistance or to Proprietary Rights
(as defined in Section 4.15). Except with respect to the Consulting Agreement
and to the extent specifically described in the TrueVision Albuquerque
Schedule, TrueVision Albuquerque is not a party to, nor bound by, any
contract or agreement which: (A) TrueVision Albuquerque can reasonably
foresee will result in any material loss upon the performance thereof
(including any material liability for penalties or damages, whether
liquidated, direct, indirect, incidental or consequential, or down time
charges); and (B) is not reflected or adequately reserved against on the
TrueVision Albuquerque Balance Sheets. No party has raised any claim, dispute
or controversy or withheld payments from TrueVision Albuquerque with respect
to any of its contracts nor has TrueVision Albuquerque received notice or
warning of alleged nonperformance, delay in delivery or other noncompliance
with respect to the obligations of TrueVision Albuquerque under any of its
contracts, nor are there any facts which exist indicating that any of such
contracts may be totally or partially terminated or suspended by the other
party thereto. TrueVision Albuquerque has not entered into any contract or
agreement containing covenants limiting its right to compete in any business
with any person. As used in this Agreement, the terms "contract" and
"agreement" mean and include every contract, agreement and commitment whether
written or oral.
4.14 REAL PROPERTY. The TrueVision Albuquerque Schedule contains a full
and complete list of all real property leased by TrueVision Albuquerque. All
such property is held under valid and enforceable leases, copies of which
have been delivered to Top Form and as to which neither party to the lease is
in material default. TrueVision Albuquerque does not own any real property in
fee simple. To the best knowledge of TrueVision
Albuquerque, the operations of TrueVision Albuquerque on any of such real
property, nor any improvement thereon, violate any applicable building code,
zoning requirement, or pollution control ordinance or any other regulation or
statute applicable to such real property.
4.15 PROPRIETARY RIGHTS. The TrueVision Albuquerque Schedule contains a
full and complete list of all trademarks, trade names, service marks, and
copyrights, or applications therefor, owned or used by TrueVision
Albuquerque. TrueVision Albuquerque owns, or possesses adequate licenses or
other rights to use, all trademarks, trademark applications, service marks,
trade names, copyrights, inventions, drawings, computer software, designs,
trade secrets, customer lists, proprietary know-how or information, or other
rights with respect thereto (collectively referred to as "Proprietary
Rights") required for or incident to the operation, sale and use of all
products and services sold or provided by TrueVision Albuquerque, free and
clear of any right, lien, encumbrance or claim of others, including without
limitation present or former employees of TrueVision Albuquerque or their
former employers; provided, however, that the possibility exists that other
persons, completely independent of TrueVision Albuquerque or its employees or
agents, could have developed trade secrets, customer information or items of
technical information similar or identical trade secrets or technical
information. TrueVision Albuquerque has taken reasonable security measures to
protect the secrecy and confidentiality of such of its Proprietary Rights,
the value of which depends upon such secrecy and confidentiality.
4.16 TOXIC WASTES; EMPLOYEE SAFETY ETC. To the best of its knowledge,
TrueVision Albuquerque makes adequate provision for the control, removal,
disposal and storage of all toxic wastes, if any, generated by its business
operations. TrueVision Albuquerque is not presently in violation of any
federal or state law, regulation, ordinance, or the like governing protection
of the environment and human health and safety regarding toxic wastes.
TrueVision Albuquerque is not presently in violation of any provision of OSHA
or any regulation promulgated thereunder. No action, proceeding, claim, suit
or the like is pending or has been
threatened against by any government agency or any person with respect to
toxic wastes, occupational health and safety or environmental damage, nor is
TrueVision Albuquerque aware of any potential claims concerning any such
matters.
4.17 INSURANCE. The TrueVision Albuquerque Schedule contains a full and
complete list of all policies of insurance to which TrueVision Albuquerque is
a party or is a beneficiary or named insured, and TrueVision Albuquerque has
in full force and effect, with all premiums due thereon paid, the policies of
insurance set forth therein. All the insurable properties of TrueVision
Albuquerque are insured in amounts and coverage and against risks and losses
which are adequate and usual for similar properties and businesses.
4.18 BANK ACCOUNTS. The TrueVision Albuquerque Schedule contains a full
and complete list of all the bank accounts of TrueVision Albuquerque together
with the names of the persons authorized to draw thereon. All cash in such
accounts is held in demand deposits and is not subject to any restriction or
limitation as to withdrawal.
4.19 NO CONFLICT. The execution and delivery of this Agreement by
TrueVision Albuquerque and the performance of its obligations hereunder:
(i) are not in violation or breach of, and will not conflict with or
constitute a default under, any of the terms of its Articles of Incorporation
or Bylaws, or any note, debt instrument, security agreement, lease, deed of
trust or mortgage, or any other contract, agreement or commitment binding
upon TrueVision Albuquerque or any of its assets or properties; (ii) will not
result in the creation or imposition of any lien, encumbrance, equity or
restriction in favor of any third party upon any of its assets or properties;
and (iii) will not conflict with or violate any applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over TrueVision Albuquerque or
any of its assets or properties. The TrueVision Albuquerque Schedule contains
a full and complete list of all necessary consents, waivers and approvals of
third parties required to be obtained by TrueVision Albuquerque in connection
with the execution and delivery of this Agreement by TrueVision Albuquerque
and the performance of its obligations hereunder.
4.20 NO DEFAULT. TrueVision Albuquerque has in all respects performed,
or is now performing, the obligations of, and is not in
material default (and would not by the lapse of time and/or the giving of
notice be in material default) in respect of, any note, debt instrument,
"security agreement, option to purchase, lease, deed of trust or mortgage, or
any other material contract, agreement or commitment binding upon it or its
assets or properties. Each of the material contracts, agreements or other
instruments described on the TrueVision Albuquerque Schedule is a legal,
binding, and enforceable obligation by or against it. To the best knowledge
of TrueVision Albuquerque, no party with whom it has an agreement or
contract, which is of material importance to the condition (financial or
otherwise), business, net worth, assets, properties, or operations of
TrueVision Albuquerque taken as a whole, is in default thereunder or has
breached any terms of provisions thereof in a material way.
4.21 CERTAIN ADVANCES. There are no receivables of TrueVision
Albuquerque owing by directors, officers, employees, consultants or its
shareholders, or owing by any affiliate of any director or officer of
TrueVision Albuquerque, other than advances in the ordinary and usual course
of business to officers and employees for reimbursable business expenses.
4.22 RELATED PARTIES. No officer or director of TrueVision Albuquerque,
or any affiliate of any such person, has, either directly or indirectly:
(i) an interest in any corporation, partnership, firm or other person or
entity which furnishes or sells products or services which are similar to
those furnished or sold by TrueVision Albuquerque; or (ii) a beneficial
interest in any contract or agreement to which TrueVision Albuquerque is a
party or by which TrueVision Albuquerque may be bound. For purposes of this
Section 4.22, there shall be disregarded any interest which arises solely
from the ownership of less than a one (1) percent equity interest in a
corporation whose stock is regularly traded on any national securities
exchange or in the over-the-counter market.
4.23 COPIES OF CERTAIN DOCUMENTS. The TrueVision Albuquerque Schedule
contains true and complete copies of: (i) its currently effective Articles of
Incorporation, certified by the Secretary of State of New Mexico; (ii) its
currently effective Bylaws, certified by the Secretary of TrueVision
Albuquerque; and (iii) all federal and other tax returns filed by TrueVision
Albuquerque since its inception.
4.24 UNDERLYING DOCUMENTS. All underlying documents listed or described
in the TrueVision Albuquerque Schedule have heretofore been furnished to Top
Form. All such documents furnished to Top Form are true and correct copies,
and there are no amendments or modifications thereto, except as expressly
noted in the TrueVision Albuquerque Schedule. The minute books of TrueVision
Albuquerque contain full, complete and accurate records of all meetings and
other corporate actions taken by the directors and shareholders of TrueVision
Albuquerque, and Top Form has heretofore been furnished true and correct
copies of all documents and records contained in said minute books.
4.25 DISCLOSURE. Neither this Agreement, the TrueVision Albuquerque
Schedule, nor any other written statement or certificate furnished by
TrueVision Albuquerque or the Shareholders to Top Form in connection with the
transactions contemplated hereby, when taken together, contain any untrue
statement of a material fact or omit to state any material fact necessary to
make any statement, in light of the circumstances under which such statement
is made, not misleading.
4.26 EFFECT OF AGREEMENT. The execution, delivery and performance by the
Shareholder and by TrueVision Albuquerque of this Agreement, and the
consummation of the transactions herein contemplated, will not conflict with,
or result in a breach of the terms of, or constitute a default under or
violation of, any law or regulation of any governmental authority or any
provision of the Articles of Incorporation or Bylaws of either, or any
agreement or instrument to which the Shareholder or TrueVision Albuquerque is
a party or by which they are bound or to which they are subject. No consent
of any person not a party to this Agreement and no consent of any
governmental authority is required to be obtained on the part of the
Shareholder or TrueVision Albuquerque to permit the consummation of the
transactions contemplated by this Agreement, which consents will not have
been received before the Closing Date.
4.27 INDEMNIFICATION OF TOP FORM. TrueVision Albuquerque and the
Shareholder, agree, jointly and severally, to indemnify, defend and hold Top
Form, its officers, directors, employees and attorneys (all such persons and
entities being collectively referred to as the "Top Form Group"), harmless
from and against any and all losses, damages, costs and expense herein called
a "Loss"), which they or any member of the Top Form Group
may at any time sustain or incur by reason of: (i) any inaccuracy or breach
of any of the representations, warranties or covenants of TrueVision
Albuquerque or the Shareholder contained herein or in any certificate
delivered pursuant hereto, or (ii) any claim or claims whether or not
presently known to the Top Form Group, which arise in connection with the
operation of the business of TrueVision Albuquerque, where the event which
gives rise to such claim occurred prior to the date of this Agreement, or
(iii) any claim or claims arising out of the failure of TrueVision
Albuquerque or the Shareholder to discharge any of their obligations pursuant
to this Agreement. In any action in respect of which indemnity may be sought
hereunder by a party hereto shall be brought against such party, the other
party shall be entitled to participate in the defense thereof at its own
expense and to settle any such action on such terms as it shall see fit so
long as the party entitled to indemnification hereunder shall be released
from any liability by reason of such settlement. In such event, the party
required to provide indemnification shall receive full cooperation and access
to all relevant and non-privileged records. The indemnification provisions of
this Section shall not be deemed exclusive and shall not prejudice any other
rights or remedies, at law or in equity, of any party under this Agreement
with respect to any matter relating to the terms, provisions, covenants or
conditions of this Agreement or any transaction contemplated hereby.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF TOP FORM
Top Form represents and warrants to TrueVision Albuquerque and the
Shareholder that:
5.01 ORGANIZATION. Top Form is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to carry on its business as now being
conducted.
5.02 VALIDITY OF AGREEMENT. Top Form has full corporate power and
authority to execute and deliver this Agreement. This Agreement constitutes
the valid and binding obligation of Top
Form, enforceable in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy laws or other similar laws affecting
creditors' rights generally and by principles of equity. The execution and
delivery of this Agreement by Top Form, and the consummation of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action, and such execution and delivery do not require the consent,
approval or authorization of any person, public authority or other entity.
5.03 EFFECT OF AGREEMENT. The execution, delivery and performance by Top
Form of this Agreement, and the consummation of the transactions herein
contemplated, will not conflict with, or result in a breach of the terms of,
or constitute a default under or violation of, any law or regulation of any
governmental authority or any provision of the Articles of Incorporation or
Bylaws of Top Form, or any agreement or instrument to which Top Form is a
party or by which it is bound or to which it is subject. No consent of any
person not a party to this Agreement and no consent of any governmental
authority is required to be obtained on the part of Top Form to permit the
consummation of the transactions contemplated by this Agreement, which
consent will not have been received before the Closing Date.
5.04 TOP FORM CORPORATE DOCUMENTS. Top Form has furnished to TrueVision
Albuquerque, and to the Shareholder, true and complete copies of all
corporate documents (other than preliminary drafts of material) that Top Form
has filed with any federal, state or local governmental agency during the
last five (5) year time period, (the "Top Form Documents"). As of their
respective filing dates (except as thereafter amended) the Top Form Documents
complied in all material respects with applicable law. The financial
statements of Top Form which have been furnished to TrueVision Albuquerque
the "Top Form Financials") comply as to form in all material respects with
applicable, accounting requirements and with the published rules and
regulations of the Securities and Exchange Commission ("SEC") with respect
thereto, have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except
as may be indicated in the notes thereto or, in the case of unaudited
statements, as permitted by the rules and regulations of the SEC) and fairly
present the consolidated financial position of Top Form as at the dates
thereof and the results of its operations and changes in financial position
for
the periods then ended (subject in the case of unaudited statements, to
normal recurring audit adjustments).
5.05 TOP FORM INTERIM FINANCIAL STATEMENTS. Top Form has also furnished
to TrueVision Albuquerque and the Shareholder copies of preliminary financial
information for the current month period ended January 31, 1998 (the "Interim
Financials"). The Interim Financials are preliminary in nature and are
subject to review and revision by management, as well as to normal recurring
audit adjustments.
5.06 ADVERSE CHANGES. Except as disclosed in the Top Form Documents or
in the Interim Financials in the form delivered hereunder, or except as
contemplated by this Agreement, or on account of the transactions
contemplated hereby, since December 31, 1997, there has not been any material
adverse change in the results of operations, financial condition, assets or
business of Top Form taken as a whole (other than on account of matters which
affect generally the economy or the industries in which Top Form is engaged).
5.07 REGISTRATION OF TOP FORM COMMON. For a period of two years from and
after the Closing Date, Top Form shall use its best efforts to: (i) file an
effective registration statement with the SEC registering all Top Form Common
on Form 10 as permitted by the Securities Exchange Act of 1934, as amended
("Exchange Act"), and to continue to file periodic reports with the SEC as
required by the Exchange Act; (ii) register for resale pursuant to the
Securities Act of 1933, as amended (the "Securities Act") and applicable
state securities laws, up to twenty percent (20%) of the Top Form Common
received by the Shareholder, on a prorata basis, in this transaction
(hereafter referred to as the "Registration Rights"); and (iii) conduct an
initial public offering of its shares of Common Stock in accordance with the
Securities Act. The Registration Rights shall be subject to approval by any
managing underwriter that Top Form may engage with respect to the public
offering of its shares in accordance with an effective registration statement
filed pursuant to the Securities Act.
5.08 SHARES OF TOP FORM STOCK. The shares of Top Form Common will, when
issued and delivered in accordance with this Agreement, be duly and validly
authorized and issued, fully paid and non-assessable.
5.09 TOP FORM BOARD ACTION. Effective at the Closing Date: (i) Top
Form's board of directors ("Top Form Board") shall appoint no less than five
additional directors at least three of whom shall be nominated by TrueVision
Albuquerque, and the remaining two directors shall be "independent directors,
to serve on the Top Form Board for a period of no less than one year from and
after the Closing Date; (ii) shall approve and implement a resolution of the
Top Form Board issuing to all shareholders of Top Form as of the Closing
Date, warrants to purchase up to 1,075,000 shares of Top Form common stock on
the same terms, conditions and exercise price as the Top Form Warrants;
(iii) the Top Form Board shall take such other and further corporate action
as required to carry out the terms and conditions of this Agreement, and
effect the deliveries and obligations of this Agreement, and effect the
deliveries and obligations created hereunder. At the conclusion of the
Closing and after all deliveries contemplated hereunder have been satisfied,
Top Form's current directors, Will Xxxxx and Xxxxxx Xxxxx shall resign as
directors.
5.10 SUBSEQUENT PRIVATE PLACEMENT OF TOP FORM COMMON. Within sixty (60)
days after the Closing Date, Top Form shall cause to offer for sale, pursuant
to applicable exemptions from registration permitted under Regulation D
promulgated under the Securities Act and under applicable state securities
exemptions, additional shares of Top Form common stock to accredited
investors, in order to raise a maximum of $3,000,000 in equity capital, upon
terms and conditions to be approved by the Top Form Board.
5.11 INDEMNIFICATION OF TRUEVISION ALBUQUERQUE AND THE SHAREHOLDER. Top
Form agrees to indemnify, defend and hold TrueVision Albuquerque, the
Shareholder, their respective officers, directors, employees and attorneys
(all such persons and entities being collectively referred to as the
"TrueVision Group"), harmless from and against any and all losses, damages,
costs and expenses, including attorneys' fees (any such loss, damage, cost or
expense herein called a "Loss"), which they or any member of the Truevision
Group may at any time sustain or incur by reason of: (i) any inaccuracy or
breach of any of the representations, warranties or covenants of Top Form
contained herein or in any certificate delivered pursuant hereto, or (ii) any
claim or claims whether or not presently known to the Top Form Group, which
arise in connection with the operation of the business of Top Form, where the
event which gives rise to such claim occurred prior to the date of this
Agreement, or (iii) any
claim or claims arising out of the failure of Top Form to discharge any of
its obligations pursuant to this Agreement. In any action in respect of which
indemnity may be sought hereunder by a party hereto shall be brought against
such party, the other party shall be entitled to participate in the defense
thereof at its own expense and to settle any such action on such terms as it
shall see fit so long as the party entitled to indemnification hereunder shall
be released from any liability by reason of such settlement. In such event,
the party required to provide indemnification shall receive full cooperation
and access to all relevant and non-privileged records. The indemnification
provisions of this Section shall not be deemed exclusive and shall not
prejudice any other rights or remedies, at law or in equity, of any party
under this Agreement with respect to any matter relating to the terms,
provisions, covenants or conditions of this Agreement or any transaction
contemplated hereby.
ARTICLE VI.
ACCESS TO INFORMATION: CONFIDENTIALITY
6.01 ACCESS.
(a) Prior to the Closing Date, TrueVision Albuquerque shall afford
representatives of Top Form reasonable access to the officers and personnel
of TrueVision Albuquerque and to such of its financial, contractual and other
records as shall be reasonably necessary for Top Form's investigation of
TrueVision Albuquerque and its business and operations.
(b) Prior to the Closing Date, Top Form shall afford
representatives of TrueVision Albuquerque reasonable access to the officers
and personnel of Top Form and to such of their financial, contractual and
other records as shall be reasonably necessary for TrueVision Albuquerque's
investigation of Top Form and its business and operations.
(c) Top Form shall make available to the Shareholder the
opportunity to ask questions of and receive answers from appropriate officers
or representatives of Top Form concerning the terms and conditions of the
transactions contemplated by this Agreement and to obtain any additional
information which Top Form possesses or can acquire without unreasonable
effort or expense
that is necessary to verify the accuracy of the information furnished to the
Shareholder hereunder.
6.02 CONFIDENTIALITY.
(a) No information concerning TrueVision Albuquerque not previously
disclosed to the public or in the public domain which is contained herein or
in the TrueVision Albuquerque Schedule, or which shall have been furnished to
or obtained by Top Form as provided in Section 6.01(a), shall be disclosed to
any person other than Top Form's employees, legal counsel, financial
advisers, or accountants in confidence, or used for any purpose other than as
contemplated herein. In the event that the purchase and sale of the TrueVision
Albuquerque Stock shall not be consummated, Top Form shall return to
TrueVision Albuquerque all such information in its possession which is in
written form.
(b) No information concerning Top Form not previously disclosed to
the public or in the public domain which is contained herein or which shall
have been furnished to or obtained by TrueVision Albuquerque or any
Shareholder as provided in Section 6.01(b) or 6.01(c), shall be disclosed by
them to any person other than their respective employees, legal counsel,
financial advisors, or accountants in confidence, or used for any purpose
other than as contemplated herein. In the event that the purchase and sale of
the TrueVision Albuquerque Stock shall not be consummated, each such person
shall return to Top Form all such information in their possession which is in
written form.
ARTICLE VII.
COVENANTS OF TRUEVISION ALBUQUERQUE AND THE SHAREHOLDER
TrueVision Albuquerque and the Shareholder hereby jointly and severally
covenant:
7.01 CONDUCT OF BUSINESS. From and after the execution and delivery of
this Agreement and until the Closing Date or the termination of this
Agreement, whichever shall first occur: (i) TrueVision Albuquerque shall not
engage in any activities or transactions which shall be outside the ordinary
course of its
business without the prior written consent of Top Form, which consent shall
not be unreasonably withheld; (ii) such persons will use their best efforts
to preserve the existing licenses, franchises, rights and privileges
pertinent to the business and operations of TrueVision Albuquerque; and (iii)
such persons will use their best efforts to preserve intact the business
organization of TrueVision Albuquerque and to preserve its goodwill and
relationships with its suppliers, customers, employees and others with whom
it deals.
7.02 NOTICE OF CERTAIN ADVERSE CHANGES, DEFAULTS OR CLAIMS. TrueVision
Albuquerque shall give prompt notice to Top Form of any material adverse
change to the properties or business of TrueVision Albuquerque, or any
notice of default received by it, subsequent to the date of this Agreement
and prior to the Closing Date, under any instrument or agreement to which
TrueVision Albuquerque is a party or by which any of its property is bound,
or of the assertion of any claim which, if upheld, would render inaccurate
any representation contained herein.
7.03 ACTIONS REQUIRING CONSENT. Between the date hereof and the Closing
Date or, the termination of this Agreement, whichever shall first occur,
TrueVision Albuquerque shall not, without the prior written consent of Top
Form, which consent shall not unreasonably be withheld, take any action of
the type described in clauses (c) through (n) of Section 4.06.
7.04 IMPLEMENTATION OF REPRESENTATIONS AND WARRANTIES. Such persons
shall use all reasonable efforts to render accurate as of the Closing Date
their representations and warranties contained in this Agreement, and shall
refrain from taking any action which would render inaccurate as of the
Closing Date any of such representations or warranties.
7.05 COMMUNICATIONS. Between the date hereof and the Closing Date, such
persons shall furnish no communication to the public with respect to the
transactions contemplated by this Agreement without the prior approval of Top
Form as to the content thereof, which approval of Top Form as to the content
thereof, which approval shall not unreasonably be withheld by Top Form.
7.06 OTHER NEGOTIATIONS. Between the date hereof and the Closing Date
of the termination of this Agreement, whichever shall first occur, such
persons will disclose to Top Form all bona fide inquiries from other persons,
firms or corporations concerning the
possible acquisition of TrueVision Albuquerque (by consolidation, merger,
sale or exchange of assets, sale of stock or otherwise) or equity securities
of TrueVision Albuquerque; and neither TrueVision Albuquerque nor the
Shareholder will solicit an acquisition of TrueVision Albuquerque by another
person, firm or corporation, whether by consolidation, merger or purchase or
sale of business or assets or by the sale or exchange of stock, nor will
TrueVision Albuquerque solicit the sale of any of its capital stock or other
equity securities to any other person, firm or corporation. Nothing contained
in this Section shall be construed as limiting the rights of the Board of
Directors of TrueVision Albuquerque to discharge their fiduciary
responsibilities in response to unsolicited offers from third parties.
7.07 COOPERATION. The Shareholder shall cooperate, and will use its best
efforts to have the other present officers, directors and employees of
TrueVision Albuquerque cooperate, with Top Form, at its request, on and after
the Closing Date and without further consideration, in endeavoring to effect
the collection of accounts or notes receivable owing to TrueVision
Albuquerque at the Closing Date, and, at Top Form's expense, in furnishing
information, evidence, testimony and other assistance in connection with any
actions, proceedings, arrangements or disputes relating to adjustment of
federal income or any other taxes of TrueVision Albuquerque for all periods
prior to the Closing Date and in connection with any other actions,
proceedings, arrangements or disputes whatsoever involving TrueVision
Albuquerque and based upon contracts, arrangements or acts which were in
effect or occurred on or prior to the Closing Date.
ARTICLE VIII.
COVENANTS OF TOP FORM
Top Form hereby covenants:
8.01 IMPLEMENTATION OF REPRESENTATIONS AND WARRANTIES. Top Form shall
use all reasonable efforts to render accurate as of the Closing Date its
representations and warranties contained in this Agreement, and shall refrain
from taking any action which would render inaccurate as of the Closing Date
any of such representations or warranties.
8.02 COMMUNICATIONS. Between the date hereof and the Closing Date (except
to the extent required by state or federal securities laws), Top Form shall
furnish no communication to the public with respect to the transactions
contemplated by this Agreement without the prior approval of TrueVision
Albuquerque as to the content thereof, which approval shall not unreasonably
be withheld by TrueVision Albuquerque.
8.03 REGISTRATION OF TOP FORM COMMON. Top Form will use its best efforts
to file and maintain an effective Registration Statement with the SEC and
applicable state securities commissions covering the resale of up to twenty
percent (20%) of the Top Form Common to be received by the Shareholder
pursuant to Section 1.02 hereof as soon as practicable after the Closing
Date. Filing and maintaining such registration with the SEC and applicable
state securities commissions shall be subject to approval by any managing
underwriter that Top Form may engage with respect to the offering and sale of
any of its securities in any underwritten public offering.
8.04 ADDITIONAL SEC DOCUMENTS. Top Form shall furnish to TrueVision
Albuquerque and the Shareholder copies of all documents, if any, (other than
preliminary material and documents which describe this Agreement and the
transactions contemplated hereby) that Top Form files with the SEC from the
date hereof through the Closing Date.
ARTICLE IX.
SECURITIES LAW MATTERS
9.01 SECURITIES ACT EXEMPTIONS. The Top Form Common to be issued
pursuant to this Agreement shall not be registered under the Securities Act,
in reliance upon exemptions from such registration contained in Sections
3(a)(10) and/or Section 4(2) of the Securities Act.
9.02 STOCK RESTRICTIONS. The certificates representing the shares of Top
Form Common issued pursuant to this Agreement shall bear a restrictive legend
in substantially the following form (and appropriate stock transfer orders
shall be placed against the transfer thereof):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE 'ACT'). THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
UNDER THE CIRCUMSTANCES SPECIFIED BY A SHAREHOLDER'S AGREEMENT, A
COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF THE CORPORATION."
9.03 OTHER SECURITIES QUALIFICATIONS. Top Form shall prepare and file
with appropriate state securities or "Blue Sky" authorities, all applications
for qualification or approval (or notices required to perfect exemptions from
such compliance) as may be required in connection with the issuance of the
Top Form Common to the Shareholder as contemplated by this Agreement.
9.04 REPRESENTATIONS OF TOP FORM. Top Form represents and warrants to
the Shareholder that it is acquiring the TrueVision Albuquerque Stock for its
own account for investment and not with a view to, or for sale in connection
with, any distribution thereof, and without any present intention of selling
the same; provided, however, that any disposition thereof will at all times
be within its control.
9.05 LEGEND RESTRICTIONS. It is understood that the certificates
representing the TrueVision Albuquerque Stock purchased hereunder shall be
endorsed with a legend restricting transfer as necessary to conform to the
requirements of the Securities Act.
ARTICLE I.
CONDITIONS TO OBLIGATIONS OF THE SHAREHOLDER
The obligations of the Shareholder under this Agreement are, at the
option of the Shareholder, subject to the satisfaction at or prior to the
Closing of the following conditions:
10.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties made by Top Form in this Agreement shall be
true in all material respects as of the Closing Date with the same force and
effect as though such representations and warranties had been made as of the
Cosing Date, except for changes contemplated by the Agreement, and Top Form
shall have delivered to TrueVision Albuquerque and the Shareholder a
certificate to such effect dated the Closing Date and signed by its President
and Chief Executive Officer.
10.02 FULFILLMENT OF COVENANTS. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by Top Form at
or before the Closing Date shall have been duly complied with and performed,
and Top Form shall have delivered to TrueVision Albuquerque and the
Shareholder a certificate to such effect dated the Closing Date and signed by
its President and Chief Executive Officer.
10.03 APPROVAL OF SALE. All authorizations, consents and approvals of
all federal, state and local governmental agencies and authorities required
to be obtained in order to permit consummation of the transactions
contemplated by this Agreement shall have been obtained.
10.04 NO LITIGATION. There shall be no litigation pending which has been
brought for the purpose of enjoining any transaction contemplated by this
Agreement or which would have the effect, if successful, of imposing a
material liability upon TrueVision Albuquerque the Shareholder because of
such transaction.
ARTICLE XI.
CONDITIONS TO OBLIGATIONS OF TOP FORM
The obligations of Top Form under this Agreement are, at the option of
Top Form, subject to the satisfaction at or prior to the Closing of the
following conditions:
11.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties made by TrueVision Albuquerque and the
Shareholder in this Agreement shall be true in all material respects as of
the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date, except
for changes contemplated by this Agreement, and TrueVision Albuquerque shall
have delivered to Top
Form a certificate to such effect dated the Closing Date and signed by its
President and Chief Executive Officer.
11.02 FULFILLMENT OF COVENANTS. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by TrueVision
Albuquerque or the Shareholder at or before the Closing Date shall have been
duly complied with and performed, and TrueVision Albuquerque shall each have
delivered to Top Form a certificate to such effect dated the Closing Date and
signed by its President and Chief Executive Officer.
11.03 APPROVAL OF SALE. All authorizations, consents and approvals of all
federal, state and local governmental agencies and authorities required to be
obtained in order to permit consummation of the transactions contemplated by
this Agreement shall have been obtained.
11.04 CONSENTS OBTAINED. TrueVision Albuquerque and the Shareholder
shall have delivered to Top Form the written consent or approval of each
person or organization whose consent or approval shall be required in order
to permit them to consummate the transactions contemplated hereby or in order
to avoid any breach or termination of any agreement to which they are a party.
11.05 NO LITIGATION. There shall be no litigation pending which has been
brought for the purpose of enjoining any transaction contemplated by this
Agreement or which would have the effect, if successful, of imposing a
material liability upon Top Form, or any of its officers or directors because
of such transaction.
11.06 ACCOUNTANT'S REVIEW. Top Form shall have received from Zapken,
Loeb, Libock and Company, LLP a letter to the effect that on the basis of
their "acquisition review" of TrueVision Albuquerque, not constituting a full
audit, nothing has come to their attention which has caused them to believe
that the accounts or balances to which they applied their procedures should
be adjusted.
11.07 ACCOUNTING TREATMENT. Top Form shall have received from Zapken,
Loeb, Libock and Company, LLP, a written analysis stating that the business
combination resulting from the consummation of the transactions contemplated
by this Agreement may be accounted for on a pooling of interests basis in
accordance
with generally accepted accounting principles and in accordance with all
rules, regulations and policies of the SEC.
11.08 TOP FORM REVIEW. There shall not have come to the attention of Top
Form, as a result of any investigation performed pursuant to Section 6.01
hereof, any information, not previously disclosed to Top Form, which is
likely to materially and adversely affect the business, property or
operations of TrueVision Albuquerque following the Closing Date.
11.09 RESIGNATION OF DIRECTORS. All persons serving as directors of
TrueVision Albuquerque shall have tendered their resignations to be effective
as of the Closing Date.
11.10 SALE OF TRUEVISION ALBUQUERQUE STOCK. Not less then eighty-four
percent (84%) of the shares of TrueVision Albuquerque Stock outstanding as of
the Closing Date shall have been tendered by the Shareholder for purchase by
Top Form hereunder.
ARTICLE XII.
SURVIVAL OF REPRESENTATIONS WARRANTIES AND COVENANTS
The representations, warranties and covenants of the parties contained
in this Agreement or in any certificate or instrument delivered pursuant
hereto shall survive the Closing hereunder.
ARTICLE XIII.
PAYMENT OF EXPENSES
13.01 EXPENSES. Except as provided herein, the parties shall each pay
their own legal and accounting fees and other out-of-pocket expenses incurred
incident to the preparation and carrying out of this Agreement and the
transactions herein contemplated, whether or not such transactions are
consummated; provided however, in the event that the Shareholder, TrueVision
Albuquerque or TrueVision, or any of them, shall fail to consummate the
transactions contemplated by this Agreement, for reasons other than a
material breach by Top Form of the the terms of this Agreement, TrueVision
Albuquerque shall pay to Top Form as a "break-up" fee all actual accounting
and legal expenses incurred by Top Form up to a maximum of $15,000. In the
event that such transactions are
consummated, the reasonable legal and accounting fees and other expenses of
TrueVision Albuquerque shall be borne by Top Form following the Closing. All
other expenses shall be deemed to be expenses of the Shareholder, and the
Shareholder, jointly and severally, shall assume and be responsible for the
payment thereof.
13.02 BROKERS. Each of the parties represents that it has dealt with no
broker or finder in connection with any of the transactions contemplated by
this Agreement and, insofar as it knows, no broker or other person is
entitled to any commission or finder's fee in connection with any such
transaction. Each party agrees to indemnify and hold the other parties
harmless against any loss, liability, damage, claim or expense incurred by
reason of any brokerage commission or finder's fee alleged to be payable
because of any act, omission or statement of the indemnifying party.
ARTICLE XIV.
GENERAL PROVISIONS
14.01 NOTICES. Any notice, request, instruction or other document to be
given hereunder by a party to any other party shall be in writing and
effective when delivered personally or sent by certified mail with return
receipt requested, postage prepaid, as follows:
To Top Form:
Topform, Inc.
0000 Xxxx Xxxxxxxx Xxx.
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Will Xxxxx, President
To TrueVision:
TrueVision Laser Center of Albuquerque, Inc.
0000 Xxxxxxxxx XX, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx, President
To Shareholder:
TrueVision Laser Centers, Inc.
XX Xxx 0000
Xxx Xxxxx, XX 00000
or to such other addresses or other persons as may be designated in writing
by any of the parties, by notice given as aforesaid.
14.02 HEADINGS. The headings of the several sections of this Agreement
are inserted for the convenience of reference only and are not intended to
affect the meaning or interpretation of this Agreement.
14.03 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when so executed each counterpart shall be deemed to be an
original, and said counterparts together shall constitute one and the same
instrument.
14.04 ASSIGNMENT. None of the parties may assign or transfer any rights
or obligations under this Agreement.
14.05 WAIVER. Any party hereto may, by written notice to the others: (i)
waive any of the conditions to its obligations hereunder or extend the time
for the performance of any of the obligations or actions of the others; (ii)
waive any inaccuracies in the representations of the others contained in
this Agreement or in any documents delivered pursuant to this Agreement;
(iii) waive compliance with any of the covenants of the others contained in
this Agreement; or (iv) waive or modify performance of any of the obligations
of the others. No action taken pursuant to this Agreement, including without
limitation any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representation, warranty, condition or agreement contained herein. Waiver of
the breach of any one or more provisions of this Agreement shall not be
deemed or construed to be a waiver of other breaches or subsequent breaches
of the same provisions.
14.06 ENTIRE AGREEMENT. This Agreement, including the schedules and
exhibits hereto, constitutes the entire agreement between the parties
pertaining to the subject matter contained herein and supersedes all prior
and contemporaneous agreements,
representations, and understandings of the parties. No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in writing by the party sought to be bound.
14.07 GOOD FAITH. Each of the parties hereto agree that it or they shall
act in good faith in an attempt to cause all the conditions precedent to
their respective obligations hereunder to be satisfied.
14.08 APPLICABLE LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Nevada.
14.09 SEVERABILITY. Should any provision of this Agreement be determined
to be invalid, it shall be severed from this Agreement and the remaining
provisions of the Agreement shall remain in full force and effect.
Witness the due execution of this Agreement by the parties hereto as of
the date first set forth above.
TOP FORM, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Title: President
TRUEVISION LASER CENTERS
OF ALBUQUERQUE, INC.
By /s/ Xxxx Xxxxx
---------------------------
Title: President and CEO
SHAREHOLDER:
TRUEVISION LASER CENTERS, INC.
By /s/ [ILLEGIBLE]
---------------------------
Title: President and CEO
SCHEDULE OF ATTACHMENTS
Section
Exhibit/Schedule Title
1.02 Top Form Warrants
1.03 Consulting Agreement
4.0 TrueVision Albuquerque Schedule
