ACQUISITION AGREEMENT
AGREEMENT, dated as of December 12, 1996 by and between Am-Pac
International, Inc. a Nevada corporation (hereinafter "Am-Pac"), and Am-Pac's
wholly owned subsidiary, Leisureshare International Limited, (hereinafter
"Limited,") and all of the shareholders (hereinafter "Shareholders") of
Leisureshare International PLC, (hereinafter "PLC.")
RECITALS WHEREAS, the Shareholders own or control in their respective
capacities and have the right to sell, transfer and exchange all of the shares
of the capital stock of PLC, and
WHEREAS, Am-Pac, through its wholly owned subsidiary Limited, wishes to
acquire all of the issued and outstanding capital stock of PLC in exchange for
2,500,000 shares of Am-Pac common stock, par value $.001 per share (hereinafter
referred to as the "Am-Pac Common Stock") and 15,528 shares of Series A
Convertible Preferred Stock , (hereinafter called "Preferred Stock" or "Series A
Preferred Stock"), and collectively referred to as "Exchanged Am-Pac Stock";
WHEREAS, the Shareholders wish to exchange their shares of PLC for Am-Pac
Common Stock and/or Preferred Stock;
NOW THEREFORE, in consideration of the premises herein contained, and the
mutual covenants hereinafter set forth, the parties hereto have agreed, and by
these presents, do hereby contract as follows:
I. EXCHANGE OF SECURITIES
Subject to the terms and conditions hereinafter set forth, at the time of
the closing referred to in Article VI hereof (hereinafter the "Closing Date"),
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Limited will issue and deliver to the Shareholders, collectively, 2,500,000
shares of Am-Pac's Common Stock, and 15,528 shares of Series A Preferred Stock
in exchange for which the Shareholders will deliver, to Limited, all of the
issued and outstanding Share Capital of PLC. The Preferred Stock shall have no
voting rights, except as provided by law; shall have a liquidation preference of
$1,000 per share, expiring 36 months from the date of issuance; shall be
entitled to a 5% cumulative dividend, (payable at Am-Pac's option in Am-Pac
common stock); and shall for a period of three years, be convertible into Am-Pac
common stock at the rate of 500 shares of Am-Pac Common stock for each Series A
Convertible Preferred Share, at the option of the shareholder. Immediately
following the exchange, Limited will own 100% of PLC.
II. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Except as otherwise disclosed in the "Disclosure Letter," attached hereto
as Exhibit A, and incorporated herein, the Shareholders represent and warrant to
Am-Pac, and Limited, all of which representations and warranties shall be true
and complete in all material respects, at the Closing Date, and shall survive
the Closing Date for a period of three (3) years except those set forth in
subsection 2.07 which shall survive the later of twelve months from the Closing
Date, or twelve months from the date the accounts receivable become due and
payable, that:
2.01 Organization. PLC is a corporation duly organized and validly existing
and in good standing under the laws of Great Britain and has the corporate power
to own its property and carry on its businesses and activities as and where they
are now being conducted. Certified copies of the Memorandum and Articles of
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Association of PLC and each subsidiary of PLC are attached hereto as Exhibit 1
and constitute true and correct copies of the Memorandum and Articles of
Association of each subsidiary and include all amendments thereto to the date
hereof.
2.02 Capital. The authorized share capital of PLC was duly and validly
increased to 50,000,000 ordinary shares of 10 xxxxx of which 15,516,600 such
shares have been validly authorized and issued.
2.03 Authority. The Shareholders have the full power and authority to
exchange the shares of PLC upon the terms and conditions provided for in this
Agreement, and all such shares are duly and validly issued and are free and
clear of any and all liens or other encumbrances. The directors and shareholders
of PLC have agreed to the terms of this Agreement; and have resolved that
execution of this Agreement is in PLC's best interest.
2.04 Subsidiaries. PLC owns the following subsidiaries: Inversora Tetuan,
S.A. ("Tetuan") and Leisureshare International Espanol S.A., ("Xxxxx") and
together shall be referred to as the PLC Group. Each member of the PLC Group is
a corporation duly organized and validly existing and in good standing under the
laws of the jurisdiction of its respective incorporation and each has the
corporate power to its property and carry on its businesses and activities as
and where it is now being conducted. PLC also owned the following subsidiaries:
International Hospitality Marketing, Inc.; Prestige Properties of Orlando, Inc.;
Xxxxxx the Turtle, Inc.; Osccola Business Managers, Inc.; Pool Homes, Inc.; and
X.X. Xxxxxx Productions, Inc.. However these subsidiaries, and all other assets
of PLC, and the corresponding debts, were validly and legally transferred to
Arvimex, Inc. ("Arvimex") to pay down Arvimex's shareholder loan account.
2.05 Financials. The combined financial statements of PLC audited by Xxxxx
Xxxx & Co., registered auditors in England, at and for the year ended December
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31, 1995, attached hereto as Exhibit 2, are true and correct statements as
of the date thereof of the financial condition of PLC and of its assets and
liabilities prepared in accordance with generally accepted accounting principles
consistently applied. Except as set forth in the Disclosure Letter, from January
1, 1996, and until the Closing Date, no dividends or distributions of capital,
surplus, or profits shall be paid or declared by PLC or any subsidiary or member
thereof; nor will there be any redemption of its outstanding shares nor has any
additional debt or equity securities been issued by PLC or any subsidiary or
member thereof.
2.06 Inventories. The inventories of PLC as shown in Exhibit 2, and as
specifically set forth in separate schedules dated as of January 1, 1996
attached hereto as Exhibit 3 are valued at the lower of cost or net realizable
value.
2.07 Accounts
(a) Receivable. The accounts receivable of PLC, shown in Exhibit 2, and
detailed on a separate schedule as of December 31, 1995, specifically set forth
in Exhibit 4, are those which have been accrued as of the Closing Date and which
shall be valid and collectible pursuant to their terms, and can reasonably be
anticipated to be paid within 12 months after the Closing Date or the date when
the accounts receivable are due and payable.
(b) Shareholder Loan accounts. The Shareholders represent and warrant that
all PLC shareholder loan accounts, except Arvimex, have been paid in full
whether by funds or shares received, or otherwise; and the Shareholders have no
claims, whether from monies loaned or otherwise, against PLC, except the Arvimex
account as described herein. Furthermore, the Arvimex shareholder account has
been paid down by transferring the following assets to Arvimex: (i) shares and
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loan accounts in: International Hospitality Marketing, Inc.; Prestige Properties
of Orlando, Inc.; Xxxxxx the Turtle, Inc.; Osccola Business Managers Inc.; Pool
Homes, Inc.; and X.X. Xxxxxx Productions, Inc.; and (ii) PLC's equipment. Prior
to such transfer, PLC obtained the written opinion of counsel that such transfer
of assets and issuance of PLC shares in satisfaction of any shareholder loan
account debt shall not be in violation of any law governing PLC or of any law of
the jurisdiction governing the properties and/or assets to be transferred.
Pursuant to such transfer and by execution hereof, Arvimex's agrees to assume
all debts associated with each such asset or company and to pay all taxes
associated with this transfer. Arvimex hereby agrees to indemnify and hold
harmless PLC, its successors and assigns including but not limited to Am-Pac and
Limited from any and all taxes, debts and claims related to this transfer of
property. Furthermore the transfer of assets resulted in paying down Arvimex's
loan account, and leaving a balance of no more than Lbs.1,507,776. The
Shareholders agree to pay any and all taxes, fees, or dues associated with PLC's
payment on each of their respective loan accounts, whether the means of
repayment was by transfer of assets, or recapitalization, issuance of shares in
lieu of debt or any other means, and shall indemnify Am-Pac and Limited from any
any all claims related thereto. The Shareholder loan accounts of PLC, shown in
Exhibit 2, and specifically set forth in Exhibit 5, are an approximation of all
shareholder loan accounts for the preceding 12 month period and within 3 months
from execution hereof, will be amended to reflect a true and accurate
reconciliation and accounting of such accounts as of the date of Closing.
However, in no event shall Arvimex's loan account balance exceed Lbs.
1`,507,776, nor shall any other shareholder be owed anything as of closing date.
2.08. Financials of Tetuan and Xxxxx. The individual financial
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statements of Tetuan audited by Coopers and Xxxxxxx, Certified Public
Accountants, at January 1, 1996, attached hereto as Exhibits 6 , are true and
correct statements as of the date thereof of the financial condition of Tetuan
and its respective assets and liabilities prepared in accordance with generally
accepted accounting principles consistently applied. The individual financial
statements of Xxxxx prepared but not audited by Costa, Certified Public
Accountants, at December 31, 1995, attached hereto as Exhibit 7 , are true and
correct statements as of the date thereof of the financial condition of Xxxxx
and its respective assets and liabilities prepared in accordance with generally
accepted accounting principles consistently applied.
2.09. Other transactions. Except as set forth in the Disclosure Letter or
as approved by prior written consent of Am-Pac, neither PLC, nor any of its
subsidiaries or members have engaged in any transaction other than transactions
in the normal course of the operations of their businesses, since January 1,
1996. Additionally, neither PLC nor any subsidiary or member of the PLC Group
has sold, assigned, or transferred any patent rights, formulas, trademarks,
trade names, copyrights, licenses or other intangible assets since January 1,
1996. PLC and Tetuan and Xxxxx shall not enter into any agreements, contracts or
the like for the sale of any real property, until the Closing, or until this
Agreement is terminated according to its terms, unless approved in writing prior
thereto, by Am-Pac or Limited.
2.10 Litigation. Neither PLC nor any subsidiary nor members of the PLC
Group is involved in any pending or threatened litigation which would materially
affect the consolidated financial condition as shown by the balance sheets of
January 1, 1996, shown on Exhibit 2 hereto, or the Tetuan and Xxxxx financial
statements shown in Exhibits 6 and 7, which has not been provided for on such
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balance sheet, or referred to in such balance sheet or footnotes attached
thereto, or disclosed to Am-Pac or Limited in writing.
2.11 . Title. PLC has and will have at the Closing Date, good and
marketable title to all of its respective property and assets shown on Exhibit 2
hereto, free and clear of any and all liens or encumbrances or restrictions,
except as shown on Exhibit 2 hereto, and except for taxes and assessments due
and payable after the Closing Date and easements or minor restrictions which do
not materially affect the present value or use of such real property.
Additionally, each member of the PLC Group has and will have at the Closing
Date, good and marketable title to all of its property and assets shown on
Exhibits 6 and 7 hereto, free and clear of any and all liens or encumbrances or
restrictions, except as shown on Exhibit 6 and 7 hereto, and except for taxes
and assessments due and payable after the Closing Date and easements or minor
restrictions which do not materially affect the present value or use of such
real property.
2.12. Compliance with Securities Laws. In connection with their acquisition
of shares of Am-Pac, each of the Shareholders makes the representations and
warranties set forth in Article VII, and such are incorporated herein.
2.13. Taxes. PLC and each member of the PLC Group have filed all federal or
similar income tax returns and, in each state or country where qualified or
doing business, or incorporated, all state income tax and franchise tax returns
which are required to be filed under applicable law. PLC and each member have
paid all taxes as shown on the returns as have become due, and have paid all
assessments received that have become due. Each shareholder has paid any and all
taxes or duties due as a result of payment on its respective shareholder loan
account.
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2.14. Brokers Fees. PLC has not retained or otherwise utilized the services
of any broker or finder in connection with the transaction contemplated by this
Agreement. No member of the PLC Group has retained or otherwise utilized the
services of any broker or finder in connection with the transaction contemplated
by this Agreement. Furthermore, neither PLC nor any of its members have done
anything to give rise to any valid claims against Am-Pac or Limited for a
brokerage commission, finder's fee or similar charge.
2.15. Subsequent Actions. Between the date hereof and the Closing Date, PLC
and its subsidiaries and each member of PLC Group shall conduct its respective
business in the same manner in which it has heretofore been conducted and the
Shareholders will not permit PLC or any subsidiary or member of PLC to (1) enter
into any contract, etc., other than in the ordinary course of business, or (2)
declare or make any distribution of any kind to the Shareholders, or PLC without
first obtaining the written consent of Am-Pac or Limited.
2.16. Shareholders
(a) Ownership interests. The list of shareholders set forth in Exhibit 8 is
a true and correct designation of each and every shareholder of PLC. Exhibit 8
further reflects the number of shares each holds as of the Closing Date, and
correctly represents the number of Exchanged Am-Pac Stock which each such
shareholder is to receive upon closing.
(b) Power of Attorney for Closing. Each Shareholder hereby authorizes
Xxxxxxx Xxxxxx to act as his or her representative and attorney-in-fact to
execute any further documents or certificates in accordance with this agreement,
including but not limited to any documents required for Closing.
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III. REPRESENTATIONS AND WARRANTIES BY AM-PAC AND LIMITED
Am-Pac and Limited represent and warrant to the Shareholders, all of which
representations and warranties shall be true at the Closing Date, and shall
survive the closing for a period of three (3) years from the Closing Date as
follows:
3.01 - Organization Am-Pac is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted. Included in the Am-Pac
Schedules (as hereinafter defined) are complete and correct copies of the
articles of incorporation of Am-Pac as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of Am-Pac's
articles of incorporation or bylaws. Am-Pac has taken all action required by
law, its articles of incorporation, its bylaws, or otherwise to authorize the
execution and delivery of this Agreement, and Am-Pac has full power, authority,
and legal right and has taken all action required by law, it articles of
incorporation, bylaws, or otherwise to consummate the transactions herein
contemplated.
3.02 - CapitalizationAm-Pac's authorized capitalization consists of
149,900,000 shares of common stock, and 100,000 shares of Preferred Stock, par
value $.001, of which 406,583 common shares are issued and outstanding. All
issued and outstanding shares are legally issued, fully paid, non-assessable and
not issued in violation of the pre-emptive or other rights of any person.
3.03 - Subsidiaries and Predecessor Corporation. Am-Pac is a newly formed
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company whose sole purpose was to merge with Captain Tony's Pizza, Inc.,
(Captain Tony's) a New York Company whose shareholders and directors elected to
reincorporate in the state of Nevada. Articles of Merger have been, or are
concurrently being filed with the appropriate state authorities. Pursuant to the
plan of merger, Am-Pac shall succeed to all the assets and liabilities of
Captain Tony's. Additionally, Captain Tony's executed an Acquisition Agreement
with the Shareholders of Pacific Foods Limited, a BVI corporation, to acquire
all of the shares of that company. Pursuant to that agreement, Am-Pac is
obligated to issue 7,000,000 shares of its common stock to the Pacific Foods
shareholders; and Xxxxxxx Xxxxxxxx is granted an option to purchase 100,000
shares of Am-Pac common stock. Am-Pac is negotiating with Xxxxxxxx for an option
to purchase another 250,000 shares. Am-Pac is also negotiating the acquisition
of two Florida based companies, which, if consummated would require the issuance
of approximately $2,690,000 worth of Am-Pac common stock; the number of shares
shall be determined by dividing the dollar number by Am-Pac's market price which
is defined as the average of the closing bid and ask prices for the 5
consecutive trading days immediately preceding the closing of that exchange.
3.04 - Financial Statements.
(a) Included in the Am-Pac Schedule are the audited balance sheets of its
predecessor company Captain Tony's Pizza, Inc. as of June 30, 1996, and the
related audited statements of operations, stockholders' equity and changes in
financial position for the fiscal year ended June 30, 1996, together with the
notes to such statements and the opinion of certified public accountants. Also
included is Captain Tony's most recently prepared quarterly report; and the
unaudited financial statements as of September 30, 1996.
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(b) All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved. The Am-Pac balance sheets present fairly, as of their
respective dates, the financial condition of Am-Pac. Am-Pac did not have as of
the date of any such Am-Pac balance sheet, except as and to the extent reflected
or reserved against therein, any liabilities or obligations (absolute or
contingent) which should be reflected in a balance sheet or the notes thereto.
All assets reflected therein are properly reported and present fairly the value
of the assets of Am-Pac, in accordance with generally accepted accounting
principles, consistently applied. The statements of operations, stockholders'
equity and changes in financial position reflect fairly the information required
to be set forth therein by generally accepted accounting principles.
(c) Am-Pac has no liabilities with respect to the payment of any federal,
state, county, local or other taxes (including any deficiencies, interest or
penalties), except for taxes accrued but not yet due and payable.
(d) Am-Pac has filed all state, federal or local income and/or franchise
tax returns required to be filed by it from inception to the date hereof. None
of such federal income tax returns have been examined by the Internal Revenue
Service. Each of such income tax return reflects the taxes due for the period
covered thereby, except for amounts which, in the aggregate, are immaterial.
(e) Am-Pac's books and records, are in all material aspects complete,
correct and have been maintained in accordance with good business and accounting
practices.
3.05 - Information. The information concerning Am-Pac set forth in this
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Agreement and the Am-Pac Schedules are complete and accurate in all material
respects and do not contain any untrue statements of a material fact or omit to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
3.06 - Options or Warrants. There are no existing options, warrants, calls,
or commitments of any character relating to the authorized and unissued stock of
Am-Pac, except options, warrants, calls or commitments, if any, to which Am-Pac
is not a party and by which it is not bound; or the obligations described
herein.
3.07 - Title and Related Matters. Am-Pac has good and marketable title to
all of its properties, inventory, interest in properties, and assets, real and
personal, which are reflected in Am-Pac's most recent balance sheet or acquired
after that date (except properties, interest in properties, and assets sold or
otherwise disposed of since such date in the ordinary course of business), free
and clear of all liens, pledges, charges, or encumbrances except (a) statutory
liens or claims not yet delinquent; (b) such imperfections of title and
easements as do not and will not materially detract from or interfere with the
present or proposed use of the properties subject thereto or affected thereby or
otherwise materially impair present business operations on such properties; or
(c) as described in the Am-Pac Schedules.
3.08 - Litigation and Proceedings. Am-Pac is involved as a claimant and
defendant in arbitration proceedings in Cleveland Ohio regarding claims of
approximately $50,000.
3.09 - Compliance With Laws and Regulations. To the best of its knowledge,
Am-Pac has complied with all applicable statutes and regulations of all federal,
state, or other applicable governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
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business, operations, properties, assets or conditions of Am-Pac or except to
the extent that noncompliance would not result in the occurrence of any material
liability, and except certain filing reports with the Securities and Exchange
Commission, as noted in the attached schedules.
3.10 - Approval of Agreement. The board of directors of Am-Pac has
authorized the execution and delivery of this Agreement by Am-Pac and has
approved this Agreement and the transactions contemplated hereby.
3.11 - Continuity of Business Enterprises. Am-Pac has no commitment or
present intention to liquidate Tetuan or Xxxxx or sell or otherwise dispose of a
material portion of their business or assets following the consummation of the
transactions contemplated hereby.
3.12 - Am-Pac Schedules. Am-Pac has delivered to PLC the following
schedules, which are collectively referred to as the "Am-Pac Schedules" and
which consist of separate schedules, which are dated the date of this Agreement,
all certified by the chief executive officer of Am-Pac to be complete, true, and
accurate:
(a) a schedule containing complete and accurate copies of the articles of
incorporation of Am-Pac as in effect as of the date of this
Agreement;es of
(b) a schedule containing a complete and accurate copy of the Am-Pac or
Captain Tony's quarterly report on Form 10QSB for the three month
period ending September 30, 1996, including the audited and unaudited
financial statements identified in section 3.04(a)
(c) a schedule containing a copy of the Captain Xxxx annual report on Form
10-KSB for the fiscal year ended June 30, 1996 which complies in all
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material respects with the applicable requirements of the Securities
Act of 1934, as amended;
(d) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed to the Exchange
in the Am-Pac Schedules by Article III.;
(e) a schedule setting forth or copies of any pending, executed
acquisition or exchange agreements involving the issuance of Am-Pac
stock.
Am-Pac shall cause the Am-Pac Schedules and the instruments and data
delivered to PLC; and hereunder to be updated after the date hereof up to and
including the Closing Date.
3.13 Private Placement. Am-Pac intends to issue a private placement of its
securities in an amount of approximately $5,000,000. However, this intent is
subject to change based upon Am-Pac's Board's ongoing analysis of Am-Pac's
financial condition, and any other considerations the Board or Am-Pac's
management deem relevant. The Shareholders may not rely on this representation
as a commitment, promise or obligation.
IV. CONDITIONS TO THE OBLIGATIONS OF AM-PAC AND LIMITED
The obligations of Am-Pac and Limited hereunder shall be subject to the
conditions that:
4.01. REPRESENTATIONS. All representations and warranties of the
Shareholders and/or PLC shall be true and materially correct as of the date made
and as of the Closing Date, and all the terms and conditions of this Agreement
to be performed and complied with by the Shareholders on or prior to the Closing
Date shall have been performed and complied by the Closing Date;
4.02. CHANGES. Subject to the matters disclosed in the Disclosure Letter,
there shall have been no substantial adverse changes in the conditions,
financial, business or otherwise of either PLC or any subsidiary or any member
of the PLC Group from January 1, 1996, to the Closing Date, and between such
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dates the business and assets of PLC or any member of the PLC group shall not
have been materially adversely affected as the result of any fire, explosion,
earthquake, flood, accident, strike, lockout, combination or workmen,
environmental concerns, taking over of any such assets by any governmental
authorities, riot, activities or armed forces, or acts of God or of the public
enemies.
4.03. Legal Opinions. Am-Pac and Limited shall have received the opinion of
Messrs. Downs, legal counsel for PLC, and legal counsel for the other members of
the PLC Group to the effect that (a) PLC and its subsidiaries are duly organized
and validly existing under the laws of the jurisdiction of their incorporation
and have the power and authority to own their properties and to carry on their
respective business wherever the same may be located and operated as of the
Closing Date, (b) the Agreement has been duly executed, and when delivered by
the Shareholders is enforceable in accordance with its terms, subject to the
general principles of equity and the valid exercise of police power; (c) the
exchange of shares made the subject of this Agreement and Limited's acquisition
of PLC shares, will not violate any securities laws of any country or state
which may have jurisdiction over the parties of this Agreement; (d) the exchange
of the stock herein contemplated does not require the registration of the PLC
Ordinary Shares pursuant to any law dealing with the issuance, sale, transfer,
and/or exchange of corporate securities, of any country or state which has
jurisdiction over the parties of this Agreement.
V. CONDITIONS TO THE OBLIGATIONS OF THE SHAREHOLDERS.
The obligations of the Shareholders hereunder are subject to the conditions
that:
5.01. Representations. All representations or warranties of Am-Pac and
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Limited shall be true and correct as of the date made and as of the Closing
Date, and all the terms and conditions of this Agreement to be performed and
complied with by Am-Pac and/or Limited on or prior to the Closing Date shall
have been performed and complied by the Closing Date;
5.02. Changes. Except as otherwise disclosed herein, there shall have been
no substantial adverse changes in the conditions, financial, business or
otherwise of either Am-Pac or Limited from September 30, 1996, to the Closing
Date, and between such dates the business and assets of Am-Pac and Limited shall
not have been materially adversely affected as the result of any fire,
explosion, earthquake, flood, accident, strike, lockout, combination of workmen,
environmental concerns, taking over of any such assets by any governmental
authorities, riot, activities or armed forces, or acts of God or of the public
enemies.
5.03. Legal Opinion. The Shareholders shall have received the opinion of
Vanderkam and Xxxxxxx, counsel for Am-Pac and Limited, to the effect that (a)
Am-Pac and Limited are corporations duly organized and validly existing under
the laws of their respective jurisdiction, and each has the power to own and
operate its properties wherever the same shall be located as of the Closing
Date; (b) the execution, delivery and performance of Am-Pac and Limited has been
duly authorized by all necessary corporate action and such constitutes a legal,
valid and binding obligation of Am-Pac and Limited and is enforceable in
accordance with its terms; (c) the stock to be delivered to the Shareholders
pursuant to the terms of this Agreement has been validly issued, is fully paid
and nonassessable; and (d) the exchange of the stock herein contemplated does
not require the registration of the Am-Pac's Common Stock pursuant to any
Federal law dealing with the issuance, sale, transfer, and/or exchange of
corporate securities.
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VI. CLOSING
6.01. Closing Date. The closing shall take place at 10:00 A.M. Central
Standard Time, on December 20, 1996, at the offices of Am-Pac International,
Inc. in Orlando, Florida, or at such other time and place as the parties hereto
shall agree upon.
6.02. Actions at Closing. At the closing, Am-Pac, Limited and the
Shareholders of PLC will each deliver, or cause to be delivered to the other,
the securities to be exchanged in accordance with Section 1 of this Agreement
and each party shall pay its own Federal, State or other governmental or
jurisdictional taxes required to be paid in connection with the issuance,
delivery and receipt of such. Am-Pac shall issue the shares in accordance with
Section 1, to each shareholder listed in Exhibit 8, in the number set forth
opposite his or her name. In addition, the following transactions will take
place.
(a) Am-Pac and Limited will deliver to the Shareholders:
(i) Duly certified copies of all corporate resolutions and other
corporate proceedings taken by Am-Pac and Limited to authorize the
execution, delivery and performance of this Agreement.
(ii) The opinion of Vanderkam and Xxxxxxx, counsel for Am-Pac and
Limited, as provided in Article V of this Agreement.
(iii) A Certificate executed by principal officers of Am-Pac and
Limited attesting to the fact that all of the representations and
warranties of Am-Pac and Limited, respectively, are true and correct as of
the Closing Date, and that all of the conditions to the obligations of the
Shareholders to be performed by Am-Pac and Limited, respectively have been
performed as of the Closing Date.
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(iv) A Certificate of Incumbency and Signatures of the officers of
Am-Pac and Limited dated as of the date of this Agreement.
(v) Stock certificates in an aggregate amount of 2,500,000 of Am-Pac
common stock, $.001 par value and stock Certificates in an aggregate amount
of 15,528 shares of Class A Convertible Preferred Stock, as set forth in
Article I.
(vi) A Stand Still agreement in accordance with Article IX
(b) The Shareholders will deliver to Am-Pac and Limited:
(i) The opinions of Downs counsel for the Shareholders, and the
opinion of other counsel for the Members of the PLC Group , as provided for
in Article IV hereof.
(ii) A Certificate of corporate good standing from the jurisdiction of
incorporation as a recent date for PLC and each subsidiary and each member
of the PLC Group;
(iii) A certificate of the Shareholders signed by their representative
that each of the representations and warranties of the Shareholders are
true and correct as of the Closing Date, subject to the matters contained
in the disclosure letter; and that all of the conditions to the obligations
of both Am-Pac and Limited to be performed by the Shareholders have been
performed as of the Closing Date;
(iv) All of the issued common share certificates of PLC, duly endorsed
to Limited.
VII. COMPLIANCE WITH SECURITIES LAWS
7.01. Shareholder representations. Each shareholder agrees not to transfer
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the shares of Am-Pac to be delivered to them pursuant to this Agreement for a
period of one year from the actual closing date. Each shareholder acknowledges
that the shares of Am-Pac to be delivered to each shareholder pursuant to this
Agreement have not been registered under the Securities Act of 1933 as amended,
referred to in this Agreement as the "Securities Act," or the laws of any other
jurisdiction, and that therefore the stock is not fully transferable except as
permitted under various exemptions, if any contained in the act and the rules of
the Securities and Exchange Commission interpreting the act. The provisions
contained in this paragraph are intended to ensure compliance with the
Securities Act. The shareholders represent and warrant that their acquisition of
Am-Pac shares does not and will not violate the laws of any country or state
which has or may have jurisdiction over this Agreement. Under US law, Am-Pac
Common Stock cannot be sold or transferred by the shareholder unless they are
subsequently registered under applicable law or an exemption from registration
is available. Am-Pac is not required to register or assist in the registration
of the Am-Pac Common Stock or to make any exemption from registration available.
Each Shareholder represents and warrants to Am-Pac that:
(a) the Shareholder is acquiring the shares of Am-Pac common stock under
this Agreement for the Shareholder's own account for investment, and not for the
purpose of resale or any other distribution of such shares;
(b) the Shareholder has no present intention of disposing of all or any
part of such shares at any particular time, for any particular price or on the
happening of any particular circumstances;
(c) the Shareholder has such knowledge and experience in financial and
business matters that the Shareholder is capable of evaluating the merits and
risks of an investment in Am-Pac;
Page 19
(d) the Shareholder acknowledges that Am-Pac is relying on the truth and
accuracy of these warranties and representations in issuing the shares without
first registering the shares under the Securities Act;
(e) none of the shares of Am-Pac capital stock to be issued to the
shareholder pursuant to this Agreement, will be offered, sold, assigned,
pledged, transferred, or otherwise disposed of except after full compliance with
all of the applicable provisions of the Securities Act and the rules and
regulations of the Securities and Exchange Commission under the Securities Act;
(f) the Shareholder agrees not to sell or otherwise dispose of any of
the shares of Am-Pac's common stock received pursuant to this Agreement unless
the shareholder: (i) has delivered to Am-Pac a written legal opinion in form and
substance satisfactory to counsel for Am-Pac to the effect that the disposition
is permissible under the terms of the Securities Act and regulations
interpreting the act; (ii) has complied with the registration and prospectus
requirements of the Securities Act relating to such disposition; or (iii) has
presented Am-Pac satisfactory evidence that such a disposition is exempt from
registration under the act;
(g) the Shareholder understands and agrees that Am-Pac shall place a
stop transfer order against transfers of shares until one of the conditions set
forth in this paragraph have been met; and
(h) the certificates evidencing the shares that the shareholder will
receive under this Agreement will contain the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR
INVESTMENT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS A
REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF 1933, AS
AMENDED IS IN EFFECT FOR THE SECURITIES, OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT IS IN FACT APPLICABLE TO SUCH
OFFER OR SALE, AND SUCH EXEMPTION IS EVIDENCED BY AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER.
Page 20
VIII. ACCESS TO THE PROPERTIES AND BOOKS
The Shareholders hereby grant to both Am-Pac and Limited and their duly
authorized representatives and during normal business hours between the date
hereof and the Closing Date, the right of full and complete access to the
properties of PLC, and each member of the PLC Group, and full opportunity to
examine such entities' books and records. A similar access to Am-Pac and
Limited's properties, books and records in likewise granted to the Shareholders,
and their duly authorized representatives.
IX. OFFICERS AND DIRECTORS
9.01 Directors. At Closing, all current directors of PLC, Tetuan and Xxxxx,
with the exception of Xxxxxxx Xxxxxx, shall resign by tendering written
resignations in accordance with the terms of a separate Stand Still agreement,
which the parties agree to execute at closing. The Stand Still agreement shall
provide for Am-Pac or Limited's control of PLC, Tetuan and Liesa's boards upon
Am-Pac's redemption of $5,500,000 worth of the Shareholder's common shares of
Am-Pac.
9.02. Management Agreement. Limited agrees to negotiate in good faith with
Xxxxxxx Xxxxxx to provided management and marketing services to Xxxxx and Tetuan
for $35,000 annually.
X. CONFIDENTIAL MATTERS
Each party hereto agrees with the other parties that, unless and until the
transactions contemplated by this Agreement have been consummated, it and its
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, as such other party, and shall not use such disclosure data or
Page 21
information or disclose the same to others, except (i) to the extent such data
or information is published, is a matter of public knowledge, or is required by
law to be published; and (ii) to the extent that such disclosure data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
workpapers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
XI. COSTS, DAMAGES AND ATTORNEY'S FEES
11.01 Costs Each party hereto shall pay its own expenses and costs incident
to the preparation of this Agreement and to the consummation of the transaction
contemplated herein.
11.02 Attorneys fees. In the event that any party institutes any action or
suit or proceedings to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the breaching party or parties shall
reimburse the nonbreaching party or parties for all costs, including reasonable
attorney's fees, incurred in connection therewith and in enforcing or collecting
any judgment or decision rendered therein.
11.03 Damages. In the event that any shareholder representation made in
this Agreement or Exhibit hereto, is proven to be a mistake which results in
damages to Am-Pac or Limited, then the parties agree that each individual
shareholder's liability shall be limited to the value of each shareholder's
Exchanged Am-Pac Stock at the time of exchange. In the event that a shareholder
has transferred his or her respective Exchanged Am-Pac Stock, then that
shareholder's liability shall be limited to (i) the market price of such
Page 22
shareholder's Exchanged Am-Pac Stock; or (ii) the amount of proceeds which such
shareholder received from such transfer of Exchanged Am-Pac Stock whichever is
less. For purposes of this Article, Market Price shall mean the average of the
closing bid and ask prices of the Am-Pac common stock for the five consecutive
trading days immediately preceding the date that Am-Pac or Limited gives notice
of its claim hereunder. In the event that Am-Pac or Limited seek damages in
accordance herewith, each shall give the Shareholders written notice, and 30
days to cure such claim. In the event that a shareholder pays any claim brought
by Am-Pac or Limited then Am-Pac or Limited shall assign any of its respective,
corresponding claim to such shareholder. Should Am-Pac or Limited subsequently
receive payment towards a claim already paid in full by a shareholder pursuant
to the terms hereof, then Am-Pac and/or Limited agree to reimburse shareholder
for such amount, paid, and subsequently received. Furthermore, Am-Pac and
Limited agree that they will not seek to recover damages from the Shareholders
pursuant to this section 11.03 until Am-Pac and/or Limited shall have
accumulated an aggregate amount of $25,000 worth of such claims (each of which
shall be in a minimum amount of $2,500.)
XII. MISCELLANEOUS
12.01. Choice of Law. This Agreement shall be controlled, construed and
enforced in accordance with the laws of the State of Florida.
12.02. Assignment. This Agreement shall not be assignable by either party
without the prior written consent of the other.
12.03. Headings. All paragraph headings herein are inserted for the parties
convenience in identifying the provisions of this Agreement, and shall not
effect the construction or interpretation of the provisions of this Agreement.
Page 23
12.04. Entire Agreement. This Agreement sets forth the entire understanding
between the parties, there being no terms, conditions, warranties or
representations other than those contained herein, and no amendments hereto
shall be valid unless made in writing and signed by the parties hereto.
12.05. Binding Successors. This Agreement shall be binding upon and shall
inure to the benefit of the heirs, executors, administrators and assigns of all
parties.
12.06. Notices. All notices, requests, instructions, or other documents to
be given hereunder shall be in writing and sent by registered mail:
If to Shareholders: Downs
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxx, Xxxxxxx XXX 0XX
If to Am-Pac: Xxxxxx Xxxxxx
or Limited: 000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
with copies to: Messrs. Vanderkam & Xxxxxxx
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
12.07. Signatures. For purposes of this Agreement only, facsimile
signatures shall be considered original signatures.
12.08. Multiple Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original, and all of which
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
Page 24
AM-PAC, INTERNATIONAL, INC
/s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx, President
LEISURESHARE INTERNATIONAL LIMITED
/s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx, President
SHAREHOLDERS OF PLC
/s/ Xxxxxxx Xxxxxx
--------------------------
Xxxxxxx Xxxxxx, representative
Page 25
SHAREHOLDERS OF PLC
/s/ illegible /s/ illegible
------------------- ----------------------------------
Xxxxxxx Xxxxxx Witness; By: /s/ illegible
----------------------
/s/ illegible /s/ illegible
------------------- ----------------------------------
Xxxxx Xxxxxxx Xxxx Witness: By: /s/ illegible
----------------------
------------------- ----------------------------------
Xxxxx Xxxxxxx Witness; By:
----------------------
------------------- ----------------------------------
Xxxxxxxx Xxxxxxx Witness; By:
----------------------
/s/ illegible /s/ illegible
------------------- ----------------------------------
Xxxxxxxx Xxxx Witness; By: /s/ illegible
----------------------
/s/ illegible /s/ Xxxxxxxxx Xxxx
------------------- ----------------------------------
Xxxx Xxxxxxxx Witness; By: /s/ Xxxxxxxxx Xxxx
----------------------
/s/ Xxxxx Xxxxx /s/ illegible
------------------- ----------------------------------
Xxxxx Xxxxx Witness; By: /s/ illegible
----------------------
Xxxxxxxx Xxxxxx
/s/ illegible
------------------------- /s/ illegible
By: Xxxxxxx Xxxxxx ----------------------------------
Guardian and Legal Custodian Witness; By:
----------------------
/s/ illegible /s/ illegible
-------------------------- ----------------------------------
Xxxxxx Xxxxxx Xxx, Successor in Witness; By:
interest to Rossignol Corp., Inc. ----------------------
Xxxx Hop Warehousing Limited
/s/ illegible /s/ illegible
-------------------------- ----------------------------------
By: /s/ illegible Witness; By: /s/ illegible
Title: illegible ----------------------
--------------------
Page 26
SHAREHOLDERS OF PLC continued Signed for and on Behalf of:
Xxxxx Xxxxxxx, Personally /s/ illegible
-------------------------
Arvimex, Inc. /s/ illegible
-------------------------
By: X. Xxxxxxx
Title: President
Cap Ferat NV: /s/ illegible
By: X. Xxxxxxx
Title: Chairman
Life & Pensions (Jersey) Ltd /s/ illegible
-------------------------
By: X. Xxxxxxx
Title: Chairman
Worthy Securities, Ltd. /s/ illegible
-------------------------
By: X. Xxxxxxx
Title: Chairman
Worthy Trust Company Ltd: /s/ illegible
-------------------------
By: X. Xxxxxxx
Title: Chairman
Page 27
State of FLORIDA }
}
County of ORANGE }
On December 21, 1996, before me the undersigned authority personally
appeared Xxxxxxx Xxxxxx who, after being sworn, on oath did state that he was
the duly authorized representative for all of the shareholders attached and
incorporated herein; and that he was executing this Agreement upon such
authority, and individually as a Shareholder, for the considerations therein
stated.
/s/ Xxxxxx X. Xxxxx
--------------------------
Notary Public
Commission #CC452632
Expires April 13, 1999
STATE OF FLORIDA }
}
COUNTY OF ORANGE }
On December 21, 1996 personally appeared before me, a Notary Public, Xxxxxx
Xxxxxx, who acknowledged that he executed the above document, and that he is the
President of Am-Pac International and duly authorized to execute this document
on its behalf.
/s/ Xxxxxx X. Xxxxx
----------------------------------
Notary Public
Commission #CC452632
Expires April 13, 1999
STATE OF FLORIDA }
}
COUNTY OF ORANGE }
On December 21, 1996 personally appeared before me, a Notary Public, Xxxxxx
Xxxxxx, who acknowledged that he executed the above document, and that he is the
President of Leisureshare International, Limited and duly authorized to execute
this document on its behalf.
/s/ Xxxxxx X. Xxxxx
---------------------------------
Notary Public
Commission #CC452632
Expires April 13, 1999
Page 28
