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EXHIBIT 2.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT is made this 4th day of May 2001, by and
between BEECHPORT CAPITAL CORP., a Colorado corporation ("Beechport"), and ITEC
INTERNATIONAL TECHNOLOGIES, INC., a Delaware corporation ("ITEC").
WHEREAS, Beechport desires to acquire all of the issued and outstanding
shares of common stock of ITEC in exchange for an aggregate of approximately
6,651,987 shares of the common stock of Beechport (the "Common Stock") (the
"Exchange Offer"); and
WHEREAS, ITEC desires to assist Beechport in a business combination
which will result, if all ITEC's shareholders desire to participate, in the
shareholders of ITEC owning approximately 66.5% of the then issued and
outstanding shares of Beechport's Common Stock, and Beechport holding 100% of
the issued and outstanding shares of ITEC's common stock; and
WHEREAS, the voluntary share exchange contemplated hereby will result
in the ITEC shareholders tendering all of the outstanding common stock of ITEC
to Beechport in exchange solely for the Common Stock and no other consideration,
which the parties hereto intend to treat as a tax-free reorganization under
Internal Revenue Code Section 368(a)(1)(B).
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE 1
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all of the terms and conditions of
this Agreement, Beechport agrees to offer 6,651.987 shares of Common Stock for
each share of ITEC common stock issued and outstanding, or a total of
approximately 6,651,987 shares of Beechport Common Stock. The Common Stock will
be issued directly to the shareholders of ITEC which accept the Exchange Offer,
and such shares shall be issued at a closing (the "Closing") to be held as soon
as possible after the conditions precedent set forth in Articles 5 and 6 hereof
have been satisfied (the "Closing Date"). Schedule 1, which is attached hereto
and incorporated herein by reference, is a complete list of the shareholders of
ITEC which sets forth the number of shares each person owns in ITEC and the
number of shares they will be offered in Beechport.
1.2 Exemption from Registration. The parties hereto intend that the
Common Stock to be issued by Beechport to ITEC shareholders shall be exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), pursuant to Sections 4(2) and 4(6) of the Act and the rules and
regulations promulgated thereunder.
1.3 Investment Intent. Prior to the consummation of the Exchange Offer,
the shareholders of ITEC accepting the Exchange Offer shall execute Letters of
Acceptance or such
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other documents containing, among other things, representations and warranties
relating to investment intent and investor status, restrictions on
transferability and restrictive legends such that the counsel for both Beechport
and ITEC shall be satisfied that the offer and exchange of Beechport shares as
contemplated by this Agreement shall be exempt from the registration
requirements of the Act and any applicable state blue sky laws.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF ITEC
Except as disclosed in Schedule 2 which is attached hereto and
incorporated herein by reference, ITEC hereby represents and warrant to
Beechport that:
2.1 Organization. ITEC\ is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the jurisdictions where its business requires qualification.
2.2 Capital. The authorized capital stock of ITEC consists of 1,000
shares of common stock, no par value, of which 1,000 are currently issued and
outstanding. All of the issued and outstanding shares of common stock of ITEC
are duly authorized, validly issued, fully paid, and nonassessable. There are no
outstanding subscriptions, options, rights, warrants, debentures, instruments,
convertible securities, or other agreements or commitments obligating ITEC to
issue or to transfer from treasury any additional shares of its capital stock of
any class.
2.3 Subsidiaries. ITEC does not have any subsidiaries or own any
interest in any other enterprise (whether or not such enterprise is a
corporation).
2.4 Directors and Officers. Schedule 2 contains the names and titles of
all directors and officers of ITEC as of the date of this Agreement.
2.5 Financial Statements. ITEC has delivered to Beechport unaudited
balance sheets and statements of operations for the year ended December 31, 2000
(the "Financial Statements"). The Financial Statements are complete and correct
in all material respects. The Financial Statements accurately set out and
describe the financial condition of ITEC as of December 31, 2000.
2.6 Absence of Changes. Since December 31, 2000, except for changes in
the ordinary course of business which have not in the aggregate been materially
adverse, to the best of ITEC's knowledge, ITEC has conducted its business only
in the ordinary course and has not experienced or suffered any material adverse
change in the condition (financial or otherwise), results of operations,
properties, business or prospects of ITEC or waived or surrendered any claim or
right of material value.
2.7 Absence of Undisclosed Liabilities. Neither ITEC nor any of its
properties or assets are subject to any material liabilities or obligations of
any nature, whether absolute, accrued,
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contingent or otherwise and whether due or to become due, that are not reflected
in the financial statements presented to Beechport or have otherwise been
disclosed in Schedule 2.
2.8 Tax Returns. Within the times and in the manner prescribed by law,
ITEC has filed all federal, state and local tax returns required by law, or has
filed extensions which have not yet expired, and has paid all taxes, assessments
and penalties due and payable.
2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, Beechport
and/or its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of ITEC and ITEC shall make
available to Beechport and/or its attorneys all books and records of ITEC.
2.10 Trade Names and Rights. Except as set forth in Schedule 2, ITEC
does not use any trademark, service xxxx, trade name, or copyright in its
business, or own any trademarks, trademark registrations or applications, trade
names, service marks, copyrights, copyright registrations or applications.
2.11 Compliance with Laws. To the best of ITEC's knowledge, ITEC has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws and regulations (including, without limitation, any applicable
building, zoning or other law, ordinance or regulation) affecting its properties
or the operation of its business, except for matters which would not have a
material affect on ITEC or its properties.
2.12 Litigation. ITEC is not a party to any suit, action, arbitration
or legal, administrative or other proceeding, or governmental investigation
pending or, to the best knowledge of ITEC, threatened against or affecting ITEC
or its business, assets or financial condition, except for matters which would
not have a material affect on ITEC or its properties. ITEC is not in default
with respect to any order, writ, injunction or decree of any federal, state,
local or foreign court, department, agency or instrumentality applicable to it.
2.13 Authority. ITEC has full corporate power and authority to enter
into this Agreement. The board of directors of ITEC has taken all action
required to authorize the execution and delivery of this Agreement by or on
behalf of ITEC and the performance of the obligations of ITEC under this
Agreement. No other corporate proceedings on the part of ITEC are necessary to
authorize the execution and delivery of this Agreement by ITEC in the
performance of its obligations under this Agreement. This Agreement is, when
executed and delivered by ITEC, and will be a valid and binding agreement of
ITEC, enforceable against ITEC in accordance with its terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors' rights generally.
2.14 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by ITEC of its obligations under
this Agreement, nor the consummation of the transactions contemplated under this
Agreement will to the best of ITEC's knowledge: (a) materially violate any
provision of ITEC's articles of incorporation or bylaws; (b) with or without the
giving of notice or the passage of time, or both, violate, or be in conflict
with, or constitute a
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material default under, or cause or permit the termination or the acceleration
of the maturity of, any debt, contract, agreement or obligation of ITEC, or
require the payment of any prepayment or other penalties; (c) require notice to,
or the consent of, any party to any agreement or commitment, lease or license,
to which ITEC is bound; (d) result in the creation or imposition of any security
interest, lien, or other encumbrance upon any material property or assets of
ITEC; or (e) violate any material statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which ITEC is bound
or subject.
2.15 Full Disclosure. None of the representations and warranties made
by ITEC herein, or in any schedule, exhibit or certificate furnished or to be
furnished in connection with this Agreement by ITEC, or on its behalf, contains
or will contain any untrue statement of material fact or omits or will omit any
material fact required to make any representation or warranty not misleading.
2.16 Assets. ITEC has good and marketable title to all of its tangible
properties and such tangible properties are not subject to any material liens or
encumbrances.
2.17 Material Contracts and Obligations. Attached hereto on Schedule 2
is a list of all agreements, contracts, indebtedness, liabilities and other
obligations to which ITEC is a party or by which its is bound that are material
to the conduct and operation of its business and properties, which provide for
payments to or by ITEC in excess of $5,000; or which involve transactions or
proposed transactions between ITEC and its officers, directors, affiliates or
any affiliate thereof. Copies of such agreements and contracts and documentation
evidencing such liabilities and other obligations have been made available for
inspection by Beechport and its counsel. All of such agreements and contracts
are valid, binding and in full force and effect in all material respects,
assuming due execution by the other parties to such agreements and contracts.
2.18 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by ITEC in connection with: (a) the
execution and delivery by ITEC of this Agreement; (b) the performance by ITEC of
its obligations under this Agreement; or (c) the consummation by ITEC of the
transactions contemplated under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BEECHPORT
Except as disclosed in Schedule 3 which is attached hereto and
incorporated herein by reference, Beechport represents and warrants to ITEC
that:
3.1 Organization. Beechport is a corporation duly organized, valid
existing, and in good standing under the laws of Colorado, has all necessary
corporate powers to own properties and to carry on business, and it is not now
conducting any business, except to the extent to which the effecting of the
transaction contemplated by this Agreement constitutes doing business.
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3.2 Capitalization. The authorized capital stock of Beechport consists
of 100,000,000 shares of no par value Common Stock of which 3,348,013 shares of
Common Stock are currently issued and outstanding and 10,000,000 shares of no
par value preferred stock of which no shares are currently issued and
outstanding. All of the issued and outstanding shares of Common Stock are duly
authorized, validly issued, fully paid and nonassessable. There are no
outstanding subscriptions, options, rights, warrants, convertible securities, or
other agreements or commitments obligating Beechport to issue or to transfer
from treasury any additional shares of its capital stock of any class.
3.3 Subsidiaries. Beechport does not presently have any subsidiaries or
own any interest in any other enterprise (whether or not such enterprise is a
corporation).
3.4 Directors and Officers. Schedule 3 contains the names and titles of
all directors and officers of Beechport as of the date of this Agreement.
3.5 Financial Statements. Beechport has delivered to ITEC its audited
balance sheet and statements of operations and cash flows as of and for the
years ended December 31, 2000 and 1999 (the "Financial Statements"). The
Financial Statements are complete and correct in all material respects and have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated. The Financial
Statements accurately set out and describe the financial condition and operating
results of Beechport as of the dates, and for the periods, indicated therein.
3.6 Absence of Changes. Since December 31, 2000, except for direct
expenses incurred by Beechport in connection with this Agreement and the
transactions contemplated hereby, and except for changes in the ordinary course
of business which have not in the aggregate been materially adverse, to the best
of Beechport's knowledge, Beechport has not experienced or suffered any material
adverse change in its condition (financial or otherwise), results of operations,
properties, business or prospects or waived or surrendered any claim or right of
material value.
3.7 Absence of Undisclosed Liabilities. Except for direct expenses
incurred by Beechport in connection with this Agreement and the transactions
contemplated hereby, neither Beechport nor any of its properties or assets are
subject to any liabilities or obligations of any nature, whether absolute,
accrued, contingent or otherwise and whether due or to become due, that are not
reflected in the financial statements presented to ITEC.
3.8 Tax Returns. Within the times and in the manner prescribed by law,
Beechport has filed all federal, state and local tax returns required by law and
has paid all taxes, assessments and penalties due and payable.
3.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, ITEC
shall have the opportunity to meet with
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Beechport's accountants and attorneys to discuss the financial condition of
Beechport. Beechport shall make available to ITEC all books and records of
Beechport.
3.10 Trade Names and Rights. Beechport does not use any trademark,
service xxxx, trade name, or copyright in its business, or own any trademarks,
trademark registrations or applications, trade names, service marks, copyrights,
copyright registrations or applications.
3.11 Compliance with Laws. To the best of Beechport's knowledge,
Beechport has complied with, and is not in violation of, applicable federal,
state or local statutes, laws and regulations (including, without limitation,
the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934,
as amended, affecting its SEC reports, its properties or the operation of its
business or with which it is otherwise required to comply.
3.12 Litigation. Beechport is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or governmental
investigation pending or, to the best knowledge of Beechport, threatened against
or affecting Beechport or its business, assets, or financial condition.
Beechport is not in default with respect to any order, writ, injunction, or
decree of any federal, state, local, or foreign court, department agency, or
instrumentality. Beechport is not engaged in any legal action to recover moneys
due to it.
3.13 Bulletin Board Listing. Beechport's Common Stock is currently
listed for trading on the OTC Bulletin Board under the symbol BEAH, and
Beechport is not aware of steps being taken by the NASD to cause the Common
Stock to be delisted.
3.14 No Pending Investigation. Beechport is not aware of any pending
investigations or legal proceedings by the SEC, any state securities regulatory
agency, or any other governmental agency regarding Beechport.
3.15 Authority. Beechport has full corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The Board of Directors of Beechport has taken all action
required to authorize the execution and delivery of this Agreement by or on
behalf of Beechport, the performance of the obligations of Beechport under this
Agreement and the consummation by Beechport of the transactions contemplated
under this Agreement. No other corporate proceedings on the part of Beechport
are necessary to authorize the execution and delivery of this Agreement by
Beechport and the performance of its obligations under this Agreement. This
Agreement is, and when executed and delivered by Beechport, will be a valid and
binding agreement of Beechport, enforceable against Beechport in accordance with
its terms, except as such enforceability may be limited by general principles of
equity, bankruptcy, insolvency, moratorium and similar laws relating to
creditors rights generally.
3.16 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by Beechport of its obligations
under this Agreement, nor the consummation of the transactions contemplated
under this Agreement will, to the best of Beechport's knowledge: (a) violate any
provision of Beechport's articles of incorporation or bylaws; (b) with or
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without the giving of notice or the passage of time, or both, violate, or be in
conflict with, or constitute a default under, or cause or permit the termination
or the acceleration of the maturity of, any debt, contract, agreement or
obligation of Beechport, or require the payment of any prepayment or other
penalties; (c) require notice to, or the consent of, any party to any agreement
or commitment, lease or license, to which Beechport is bound; (d) result in the
creation or imposition of any security interest, lien or other encumbrance upon
any property or assets of Beechport; or (e) violate any statute or law or any
judgment, decree, order, regulation or rule of any court or governmental
authority to which Beechport is bound or subject.
3.17 Validity of Beechport Shares. The shares of Beechport Common Stock
to be delivered pursuant to this Agreement, when issued in accordance with the
provisions of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable.
3.18 Full Disclosure. None of the representations and warranties made
by Beechport herein, or in any filing with the SEC, or in any exhibit,
certificate or memorandum furnished or to be furnished by Beechport, or on its
behalf, contains or will contain any untrue statement of material fact, or omit
any material fact the omission of which would be misleading.
3.19 Assets. Beechport has good and marketable title to all of its
tangible properties and such tangible properties are not subject to any liens or
encumbrances.
3.20 Material Contracts and Obligations. Attached hereto on Schedule 3
is a list of all agreements, contracts, indebtedness, liabilities and other
obligations to which Beechport is a party or by which it is bound that are
material to the conduct and operations of its business and properties, which
provide for payments to or by Beechport in excess of $1,000; or which involve
transactions or proposed transactions between Beechport and its officers,
directors, affiliates or any affiliate thereof. Copies of such agreements and
contracts and documentation evidencing such liabilities and other obligations
have been made available for inspection by ITEC and its counsel. All of such
agreements and contracts are valid, binding and in full force and effect in all
material respects, assuming due execution by the other parties to such
agreements and contracts.
3.21 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by Beechport in connection with:
(a) the execution and delivery by Beechport of its obligations under this
Agreement; (b) the performance by Beechport of its obligations under this
Agreement; or (c) the consummation by Beechport of the transactions contemplated
by this Agreement.
3.22 Real Property. Beechport does not own, use or claim any interest
in any real property, including without limitation any license, leasehold or any
similar interest in real property.
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ARTICLE 4
COVENANTS
4.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsels, accountants, auditors, and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party's properties, books, contracts, commitments, and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party's affairs as the other
party may reasonably request. If the transaction contemplated hereby is not
completed, all documents received by each party and/or its attorneys and
accountants, auditors or other authorized representatives shall be returned to
the other party who provided same upon request. The parties hereto, their
directors, employees, agents and representatives shall not disclose any of the
information described above unless such information is already disclosed to the
public, without the prior written consent of the party to which the confidential
information pertains. Each party shall take such steps as are necessary to
prevent disclosure of such information to unauthorized third parties.
4.2 Conduct of Business. Prior to the Closing, Beechport and ITEC shall
each conduct its business in the normal course, and shall not sell, pledge, or
assign any assets, without the prior written approval of the other party, except
in the regular course of business or as contemplated in previously disclosed
contractual obligations. Neither Beechport nor ITEC shall amend its Articles of
Incorporation or Bylaws, declare dividends, redeem or sell stock or other
securities, incur additional or newly-funded liabilities, acquire or dispose of
fixed assets, change employment terms, enter into any material or long-term
contract, guarantee obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount, pay more on any
liability than its stated amount, or enter into any other transaction other than
in the regular course of business except as otherwise contemplated herein.
ARTICLE 5
CONDITIONS PRECEDENT TO BEECHPORT'S PERFORMANCE
5.1 Conditions. The obligations of Beechport hereunder shall be subject
to the satisfaction, at or before the Closing, of all the conditions set forth
in this Article 5. Beechport may waive any or all of these conditions in whole
or in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Beechport of any other condition of or
any of Beechport's other rights or remedies, at law or in equity, if ITEC shall
be in default of any of their representations, warranties, or covenants under
this Agreement.
5.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by ITEC in this Agreement or in
any written statement that shall be delivered to Beechport by ITEC under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
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5.3 Performance. ITEC shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
5.4 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against ITEC on or before the Closing Date.
5.5 Officer's Certificate. ITEC shall have delivered to Beechport a
certificate, dated the Closing Date, and signed by the Chief Executive Officer
of ITEC, certifying that each of the conditions specified in Sections 5.2
through 5.4 hereof have been fulfilled.
ARTICLE 6
CONDITIONS PRECEDENT TO ITEC'S PERFORMANCE
6.1 Conditions. ITEC's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article 6. ITEC may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by ITEC of any other condition of or any of ITEC's
rights or remedies, at law or in equity, if Beechport shall be in default of any
of its representations, warranties, or covenants under this Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Beechport in this Agreement or
in any written statement that shall be delivered to ITEC by Beechport under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
6.3 Performance. Beechport shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by them, on or before the Closing
Date.
6.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Beechport on or before the Closing Date.
6.5 Directors of Beechport. Effective on the Closing, Beechport shall
have temporarily set the size of its Board of Directors at three (3) persons,
and such Board of Directors shall include Xxxx X. XxXxxxxxxxxx, Xxxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxxxxxx. The current Officers and Directors of Beechport
shall have submitted their resignations as the Officers and Directors of
Beechport effective on the Closing of this transaction.
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6.6 Officers of Beechport. Effective on the Closing, Beechport shall
have elected the following new Officers of Beechport:
Xxxx XxXxxxxxxxxx - President
Xxxxxx X. Xxxxxxx - Vice President
Xxxx X. Xxxxxxxxxxx - Vice President
6.7 No Outstanding Debt. On the Closing, all outstanding liabilities
and obligations of Beechport shall have been paid or settled, including all
costs related to this transaction.
6.8 Officer Certificate. Beechport shall have delivered to ITEC a
certificate, dated the Closing Date and signed by the President of Beechport,
certifying that each of the conditions specified in Sections 6.2 through 6.7
have been fulfilled.
ARTICLE 7
CLOSING
7.1 Closing. The Closing of this transaction shall be held at the
offices of Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C., 600 Seventeenth Street, Suite
0000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, or such other place as shall be
mutually agreed upon, on such date as shall be mutually agreed upon by the
parties. At the Closing:
7.2 ITEC shall deliver Letters of Acceptance and the certificates
representing the shares of ITEC held by the shareholders of ITEC accepting the
Exchange Offer ("Accepting Shareholders") to Beechport.
7.3 Each Accepting Shareholder shall receive a certificate or
certificates representing the number of shares of Beechport Common Stock for
which the shares of ITEC common stock shall have been exchanged.
7.4 Beechport shall provide to ITEC copies of all accounting records
for the past three years and all corporate records including articles, bylaws
and minutes of directors and shareholders meetings, except for documents
previously provided to ITEC or its representatives.
7.5 Beechport shall deliver an officer's certificate, as described in
Section 6.8 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth in this Agreement on behalf of
Beechport are true and correct as of, or have been fully performed and complied
with by, the Closing Date.
7.6 Beechport shall deliver a signed Consent and/or Minutes of the
Directors of Beechport approving this Agreement and each matter to be approved
by the Directors of Beechport under this Agreement.
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7.7 ITEC shall deliver an officer's certificate, as described in
Section 5.5 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth in this Agreement on behalf of
ITEC are true and correct as of, or have been fully performed and complied with
by, the Closing Date.
7.8 ITEC shall deliver a signed Consent or Minutes of the Directors of
ITEC approving this Agreement and each matter to be approved by the Directors of
ITEC under this Agreement.
ARTICLE 8
POST CLOSING
8.1 Current Report on Form 8-K. Within 15 days after the Closing Date,
Beechport will file a Current Report on Form 8-K with the Securities and
Exchange Commission reporting this transaction.
ARTICLE 9
MISCELLANEOUS
9.1 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
9.2 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
9.3 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
9.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
9.5 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
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9.6 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
Beechport:
Beechport Capital Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxx X. Xxxxxx, Esq.
Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
(000) 000-0000 (facsimile)
ITEC:
Itec International Technologies, Inc.
00000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxx X.Xxxxx, Esq.
Futro & Xxxxxxxxxxx LLC
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 (facsimile)
9.7 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
9.8 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
12
13
9.9 Announcements. Beechport and ITEC will consult and cooperate with
each other as to the timing and content of any announcements of the transactions
contemplated hereby to the general public or to employees, customers or
suppliers.
9.10 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for herein above, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party.
9.11 Use of Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
AGREED TO AND ACCEPTED as of the date first above written.
BEECHPORT CAPITAL CORP. ITEC INTERNATIONAL TECHNOLOGIES,
INC.
By /s/ Xxxxxxxx Xxxxxxxxx By /s/ Xxxx De Laurentiis
---------------------- ----------------------
Xxxxxxxx Xxxxxxxxx, President Xxxx XxXxxxxxxxxx, President
13
14
SCHEDULE 1
NUMBER OF
NUMBER OF SHARES OF
NAME AND ADDRESS SHARES OF BEECHPORT
AND TAX ID NUMBER ITEC COMMON STOCK
------------------------------------------------------------ ----------- -----------
Xxxx X. XxXxxxxxxxxx 354 2,354,803
00000 Xxxxxx Xxxxxxxx Xx
Xxxxxxxxx XX 00000
SSN: ###-##-####
Xxxxxx Xxxxxxx 89 592,027
Vico Xxxxx Xxxxxxx xxxxx Xxxxxxxx
00x, 00000 Xxxxxx, Xxxxx
Xxxxxx X. Xxxxxxxx 20 133,040
000 Xxxxxx Xxxxx Xx
Xxxxxxxxxx, XX 00000
SSN: ###-##-####
Xxxx Xxxxxxxxxxx 70 465,639
00000 000xx Xxxxx Xxxxx
Xxxxxxx XX 00000
SSN: ###-##-####
Xxxxx Xxxxxxx 30 199,559
000 Xxxxx Xxxx Xx
Xxxxxxxxx, XX 00000
SSN: ###-##-####
First Step Capital 20 133,040
000 X. 00xx Xx
Xxx Xxxx,XX 00000
Tax ID#: 000-000-000
Jag Enterprises 15 99,780
0000 X. Xxxxx Xx
Xxxxxxxxx, XX 00000
Tax ID#: 00-000-0000
Xxxxx XxXxxxx 1 6,652
0000 Xxxxxxxxxx Xxx #00
XXX 000 Xxxxxxx, XX 00000
SSN: ###-##-####
Schedule 1 - Page 1
15
NUMBER OF
NUMBER OF SHARES OF
NAME AND ADDRESS SHARES OF BEECHPORT
AND TAX ID NUMBER ITEC COMMON STOCK
------------------------------------------------------------ ----------- -----------
Xxxxxxxxx Xxxxxxx 20 133,040
Xxx Xxxxxxx Xxxxxxxxxx
00/00 Xxxxxx
Giuseppe Fedegari 24 159,647
via Xxxxxxx Xxxxxxx
00 0000 Xxxxxx (XX)
Paolo Fedegari 24 159,647
via Xxxxxxx Xxxxxxx
00 0000 Xxxxxx (XX)
Xxxxxxxx Xxxxxx 20 133,040
via X. Xxxxxxx,
4 - Piglio (FR)
Xxxxxx Xxxxxxxx 2 13,304
via Xxxxx Xxxxx
000 - Xxxxx (XX)
Xxxxx Xxxxxxx 5 33,260
xxx Xxxxxxx
00 - Xxxxxxx
Xxxxxx Xxxxxxx 0 26,608
via Xxxxxxx
Parco dei geranei - Xxxxxxx
Xxxxxx Mantiovani 4 26,608
via San Xxxxxx
71 - Xxxxxxx
Xxxxxxx Xxxxxxxxxx 1 6,652
vico IV Xxxxxxxxx
9/13 - Xxxxxx Irpino (AV)
Xxxxxxx Xxxxx 1 6,652
p.zza Xxxxxxxx
15/B - Napoli
Remuccio Xxxxxxx 1 6,652
vico I Xxxxxxxx Xxxxxxxx
8bis - Savoia xx Xxxxxxx (PZ)
Schedule 1 - Page 2
16
NUMBER OF
NUMBER OF SHARES OF
NAME AND ADDRESS SHARES OF BEECHPORT
AND TAX ID NUMBER ITEC COMMON STOCK
------------------------------------------------------------ ----------- -----------
Xxxxxxxx Xxxxx 10 66,520
xxx Xxxx
00 - Xxxxx xx Xxxxxxxx (CE)
Xxxxxxxx Alabisco 1 6,652
via del Lavoro
zona ind. - S. Xxxxx Capuavetere (CE)
Xxxx Xxxxx 1 6,652
xxx Xxxxxxx
00, I trav. - Xxxxxxx
Xxxxxxxx Mastrominico 20 133,040
via Xxxx Xxxx
31 - S. Xxxxxxxx X'Xxxxxx (CE)
Carlo Mastrominico 20 133,040
via Xxxx Xxxx
31 - S. Xxxxxxxx X'Xxxxxx (CE)
Xxxxxxx Xxxxx 2 13,304
via S. Nicola
17 - Vietri xx Xxxxxxx
Xxxxxxx Xxxxxx 11 73,172
via Salita Cacciottoli
1 - Napoli
Xxxxxx Xx Xxxxxx 10 66,520
xxx X. Xxxxxxx
0 - Xxxxxx
Xxxxx Xx Xxxxxx 00 66,520
xxx X. Xxxxxxx
0 - Xxxxxx
Xxxxxxxx Xxxxxxxx 10 66,520
xxx Xxxxxx Xxxxx
00 - Xxxxxx
Xxxxxxxx 0 - Page 3
17
NUMBER OF
NUMBER OF SHARES OF
NAME AND ADDRESS SHARES OF BEECHPORT
AND TAX ID NUMBER ITEC COMMON STOCK
------------------------------------------------------------ ----------- -----------
Glenwood Marketing Association 200 1,330,397
000 Xxxxxxxx Xx
Xxxxxxxx Xxxxxxx, XX 00000
Tax ID #00-0000000
Total 1,000 6,651,987
Schedule 1 - Page 4
18
SCHEDULE 2
ITEC INTERNATIONAL TECHNOLOGIES, INC.
("ITEC")
2.3 Subsidiaries:
EC02 Environmental Systems, Inc. - Delaware
2.4 The Officers and Directors of ITEC are as follows:
Name Position
---- --------
Xxxx X. XxXxxxxxxxxx President, Chief Executive Officer and Director
Xxxxx XxXxxxxxxxxx Secretary
Xxxxxx X. Xxxxxxx Vice President of European Operations and
Director
Xxxx X. Xxxxxxxxxxx Vice President of USA Operations and Director
2.10 Trademarks:
ITEC has filed with the U.S. Patent and Trademark Office an application
to register the trademark "ECO2".
2.17 Contracts:
(a) Engagement Agreement with Arrowchase, Inc. dated May 30, 2000.
(b) Work for Others Agreement with Honeywell International
executed on July 20, 2000.
(c) Patent License Agreement with Honeywell International, Inc.
executed in July 2000.
(d) Exclusive Supply Contract with Fedegari Autoklaven AG executed
on August 30, 2000.
(e) Collaboration Agreement dated August 3, 2000 with EniSud
S.p.A.
19
SCHEDULE 3
BEECHPORT CAPITAL CORP.
("Beechport")
3.4 Directors and Officers of Beechport:
Name Position
---- --------
Xxxxxxxx Xxxxxxxxx President and Director
Xxxxxxx X. Xxxxxx Director
Xxxxx Xxxxxxxxx Secretary
3.20 Material Contracts of Beechport:
None
20
BEECHPORT CAPITAL CORP.
EXCHANGE OFFER FOR THE COMMON STOCK OF
ITEC INTERNATIONAL TECHNOLOGIES, INC.
LETTER OF ACCEPTANCE
Name(s) of Shareholder(s) ___________ Shares of Beechport Capital
Corp. Common Stock offered for your
__________ Shares of Itec International
------------------------------- Technologies, Inc. Common Stock
-------------------------------
================================================================================
THIS FORM MUST BE COMPLETED AND DELIVERED ON OR BEFORE 5:00 P.M. MOUNTAIN TIME,
MAY 18, 2001, TO XXX XXXXXX AT XXXX XXXXX XXXXXXXX & XXXXXX, P.C., 000 00XX
XXXXXX, XXXXX 0000 XXXXX, XXXXXX, XXXXXXXX 00000, OR FAXED TO XXX XXXXXX AT
(000) 000-0000.
================================================================================
APPROVAL OR NONAPPROVAL OF EXCHANGE OFFER
The undersigned [ ] accepts [ ] rejects [check one] the Exchange Offer
of Beechport Capital Corp. for his or her shares of Itec International
Technologies, Inc. common stock, as specified above subject to the terms and
conditions set forth in the Share Exchange Agreement to be executed between Itec
International Technologies, Inc. and Beechport Capital Corp.
The undersigned understands that approval of the Exchange Offer
constitutes (i) his or her approval of the terms and conditions of the Exchange
Offer, and the complete transfer of all of his or her shares of Itec
International Technologies, Inc. common stock to Beechport Capital Corp., and
(ii) his or her acknowledgment and agreement that the shares of Common Stock of
Beechport Capital Corp. will be full payment for all of his or her shares of
Itec International Technologies, Inc.
Date:
-------------------- --------------------------------------------
--------------------------------------------
Signature(s) of Shareholder(s)
(NOTE: IF YOU ACCEPT THE EXCHANGE OFFER, YOU MUST ALSO SIGN ON PAGE 4 OF THIS
LETTER OF ACCEPTANCE. IN ADDITION, YOU MUST ENDORSE YOUR STOCK CERTIFICATE(S)
AND RETURN THEM WITH THIS LETTER OF ACCEPTANCE.)
21
REPRESENTATIONS AND WARRANTIES
1. The undersigned understands and acknowledges that the shares of
Common Stock ("Shares") of Beechport Capital Corp. (the "Company"), are being
offered in reliance upon the exemptions provided in Section 4(2), 4(6) and/or
3(b) of the Securities Act of 1933 as amended (the "Securities Act") and the
Rules and Regulations adopted thereunder relating to nonpublic offerings; and
the undersigned makes the following representations and warranties with the
intent that the same may be relied upon in determining the suitability of the
undersigned as a purchaser of securities:
(a) The Shares will be acquired solely for the account of the
undersigned, for investment purposes only, and not with a view to, or for sale
in connection with, any distribution thereof and with no present intention of
distributing or reselling any part of the Shares.
(b) The undersigned agrees not to dispose of his or her Shares
or any portion thereof unless and until counsel for the Company shall have
determined that the intended disposition is permissible and does not violate the
Securities Act or any applicable state securities laws, or the rules and
regulations thereunder.
(c) The undersigned acknowledges that the Company has made all
documentation pertaining to all aspects of the Exchange Offer available to him
or her and has offered such person or persons an opportunity to discuss the
Exchange Offer with the officers of the Company. Included in such documentation
are copies of the Company's Form 10-KSB for the year ended December 31, 2000,
and a copy of the Share Exchange Agreement. The undersigned further acknowledges
and represents to the Company that he or she is a knowledgeable, sophisticated
investor who can fend for himself or herself and has adequate means to make the
investment contemplated herein; and that, in connection with this investment, he
or she has obtained the necessary investment advice from appropriate outside
sources, and had available to the undersigned all information with respect to
the Company which was deemed necessary by himself or herself and his or her
respective advisors.
2. The undersigned represents that the shares of Itec International
Technologies, Inc. being exchanged are owned free and clear of any liens or
encumbrances and have not been pledged or optioned to any person.
3. The undersigned understands that he or she must bear the economic
risk of an investment in the Shares to be acquired pursuant to the Exchange
Offer for an indefinite period of time because the Shares have not been
registered under the Securities Act or any state securities laws and, therefore,
cannot be sold unless they are subsequently registered under the Securities Act
and any applicable state securities laws or unless exemptions from such
registrations are available. The current holding period requirement of Rule 144
is one year from the date this transaction is closed, and sales may thereafter
be made only in compliance with the requirements of that Rule. The undersigned
acknowledges that only the Company can file a registration statement, and that
the
2
22
Company has no obligation to do so or to take steps necessary to make an
exemption from registration available to the undersigned.
4. The undersigned agrees that the certificate evidencing the Shares he
or she acquires pursuant to the Exchange Offer will have a legend placed thereon
stating that the Shares have not been registered under the Securities Act or any
state securities laws and setting forth or referring to the restrictions on
transferability and sale of the Shares.
5. (a) The undersigned is, or is not, an "accredited investor," as that
term is defined in Regulation D under the Securities Act of 1933, as amended
(the "Act"), as checked below:
[ ] YES [ ] NO
(b) If "Yes," I come within the following category of that definition
(check as applicable):
1. [ ] I am a natural person whose present net worth (or whose joint
net worth with my spouse) exceeds $1,000,000.
2. [ ] I am a natural person who had individual income in excess of
$200,000 in each of the last two years or joint income with my
spouse in excess of $300,000 during such two years, and I
reasonably expect to have the same income level in the current
year.
3. [ ] I am an organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust or partnership not formed for the specific
purpose of acquiring the securities offered, with total assets
in excess of $5,000,000.
4. [ ] I am an entity, all of whose equity owners are accredited
investors under paragraph 1, 2 and 3, above.
(c) If I have answered yes to (5)(a) above, I understand that
Regulation D requires that you have information which causes you to have a
reasonable belief that the foregoing statement is correct. Thus, if you care to
do so, you may contact my bank, my accountant or other persons whom I designate
below to corroborate the above. The name and telephone number of:
(i) My banker is
---------------------------------
-------------------------------------------------;
(ii) My accountant is
----------------------------
---------------------------------------------; and
3
23
(iii) Other person is
----------------------------
--------------------------------------------------.
6. The undersigned hereby covenants and agrees to protect, indemnify
and hold the Company, and each of its officers, directors and shareholders,
harmless from and against any and all claims, demands, causes of action,
judgments, orders, decrees, damages, liabilities, court or other costs, attorney
fees, reasonable costs of investigation and other costs and expenses whatsoever
(i) arising out of or attributable to any breach or violation of, or the
falsity, inaccuracy or failure of, any representation, warranty or covenant made
by the undersigned in this letter, and (ii) arising from or related to the
acquisition, ownership or disposition by the undersigned of any or all the
Shares.
7. The undersigned resides in the state of ________________.
------------------------------------
Print Name of Shareholder
----------------------------------- ------------------------------------
(Social Security or Tax I.D. Number) Signature(s) of Shareholder(s)
----------------------------------- ------------------------------------
(Social Security or Tax I.D. Number) Signature(s) of Shareholder(s)
-----------------------------------
(Mailing Address)
Date:
----------------------------------- -------------------------------
The exact name in which the new certificate should be issued is as
follows:
------------------------------------------------------------
4
