EXHIBIT 10.23
ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT dated as of March 14, 2002 (this
"Agreement") is by and between Entreport Corporation, a Florida corporation
("ENP"), and Advanced Communications Technologies (Australia) Pty Ltd. ("ACT").
RECITALS
WHEREAS, ACT is in the business of developing communications equipment
for the wireless communications industry, and during the last four years in
Australia has developed and filed several patent applications regarding a
revolutionary new Software Defined Radio multiple protocol wireless base station
technology known as SpectruCell:and
WHEREAS, ACT is in the process of finalizing a contract with a major US
based carrier for the implementation of a field trial of the Spectracell
technology, and an extensive joint venture relationship with one of the largest
semi-conductor companies in the USA to market Spectracell, and involved in
several other potential relationships with US based companies: and
WHEREAS, ACT now plans to locate and establish a base of operations in
the United States for the continued development, marketing and distribution of
the SpectruCell product in the USA and Canada. Such base of operations will
involve the establishment of engineering facilities, research and development,
sales, marketing and distribution: and
WHEREAS, ACT plans to make the US based operating company the worldwide
headquarters for the continued development and global distribution of the
Spectrucell technology
NOW, THEREFORE, the respective Boards of Directors of ENP and ACT deem
it advisable and in the best interests of their corporations and the respective
shareholders of their corporations that ACT acquire securities of ENP, and ENP
acquire securities of ACT, in accordance with the terms and conditions of this
Reorganization and Stock Purchase Agreement.
1. PRE-CLOSING ACTIONS OF ENP. Immediately upon execution of this
Agreement and prior to any Closing as set forth herein, ENP shall undertake the
following actions:
(a) The Board of Directors of ENP shall approve and deliver resolutions
with respect to (a) approving the transaction set forth herein; (b) approving
and authorizing an amendment to the Articles of Incorporation of ENP increasing
the authorized common stock of ENP from fifty million (50,000,000) shares to
three hundred million (300,000,000) shares; (c) electing five persons to the
board of directors of ENP, four of whom are designated by ACT and one of whom is
mutually designated by ENP and ACT (for a total of seven after the resignations
set forth below), and (d) approving a name change of the corporation to
"ADVANCED COMMUNICATIONS USA, INC." contingent upon completion of the Closing.
(b) The Shareholders of ENP shall approve (i) the transaction
contemplated hereby (if required), (ii) the increase in the authorized common
stock and (iii) the proposed name change.
(c) ENP shall undertake a transaction or transactions pursuant to which
the existing assets and business of ENP will be transferred to its wholly-owned
subsidiary, Xxxxxxxxxx.xxx, Inc., a Minnesota corporation, or other wholly-owned
subsidiary.
(d) ENP shall forward to Xxxxxx Law Group in escrow a board resolution
authorizing the issuance of a total of 168,660,009 shares (the "ENP Shares"),
representing approximately 90% of the fully-diluted shares of ENP, to be
delivered to the ACT shareholders at the Closing.
2. PRE-CLOSING ACTIONS OF ACT. Immediately upon execution of this
Agreement and prior to any Closing as set forth herein, ACT shall undertake the
following actions:
(a) The Board of Directors of ACT shall unanimously approve and deliver
resolutions with respect to approving the transaction set forth herein.
(b) The Shareholders of ACT shall approve the transaction contemplated
hereby if required.
(c) Upon execution of this Agreement, ACT shall deliver to ENP $50,000
in immediately available funds as an advance, and shall advance an additional
$50,000 per month for three months, or until completion or rejection or
cancellation of the Closing, whichever occurs first.
(d) ACT or its shareholders shall forward to Xxxxxx Law Group in escrow
an aggregate of 240 shares of common stock of ACT (the "Escrowed ACT Shares"),
representing approximately 20% of the issued and outstanding common stock of
ACT, to be delivered to ENP at the Closing (the "Escrowed ACT Shares").
(e) ACT shall deliver audited financial statements of its operations
for the prior two fiscal years within 14 days of execution of this Agreement.
(f) ACT shall pay all required AMEX fees and costs in order to maintain
the AMEX listing and gain approval of the transaction.
(g) Subsequent to the Closing, ACT has a firm intention and plans to
(but is not obligated) to enter into a registered exchange offer or potentially
a private placement transaction pursuant to which it shall exchange its ENP
shares from its shareholdings on a one for one basis for certain outstanding
common stock of Advanced Communications Technologies, Inc.
3. AT THE CLOSING.
At the Closing, Xxxxxx Law Group shall release the ENP Shares
Resolution to ACT and/or its shareholders and shall release the Escrowed ACT
Shares to ENP. ENP shall deliver termination agreements with respect to any and
all Employment Agreements (defined below). , Within 60 days of approval of this
transaction by AMEX, ACT, in conjunction with and with the cooperation of ENP,
shall arrange for a funding between $1 million and $5 million (US) in funding
for ENP. The Board of ENP shall commit at least $1 million (US) under an
appropriate time frame as determined by the board of directors of ENP subsequent
to the Closing to the ongoing real estate business in Xxxxxxxxxx.xxx, Inc. ENP
shall also commit to the operation of the ongoing real estate business in
Xxxxxxxxxx.xxx, Inc. through mutually acceptable employment agreements with the
existing management of the business.
4. TIMING OF CLOSING. The Closing shall occur upon the satisfaction of
the conditions set forth in this Agreement and upon instructions from the
parties hereto to the Escrow Agent. The Closing Date shall occur as soon as
practicable following satisfaction of all conditions of closing. In the event
the Closing does not occur on or before May 30, 2002 (unless otherwise extended
in writing by the parties), the Escrow Agent shall return the ENP Shares
Resolution to ENP and shall return the Escrowed ACT Shares to ACT..
5. REPRESENTATIONS OF ENP. Except as set forth in Schedule 5, ENP
represents and warrants as follows:
(a) OWNERSHIP OF SHARES. As of the Closing Date, ACT will become sole
owner of the ENP Shares issued pursuant to the ENP Shares resolution. The ENP
Shares will be free from claims, liens or other encumbrances, except as provided
under applicable federal and state securities laws;
(b) FULLY PAID AND NONASSESSABLE. The ENP Shares will constitute duly
and validly issued shares of ENP, fully paid and nonassessable, and they further
represent that they have the power and the authority to execute this Agreement
and to perform the obligations contemplated hereby;
(c) ORGANIZATION OF ENP; AUTHORIZATION. ENP is a corporation duly
organized, validly existing and in good standing under the laws of Florida with
full corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action of
ENP and this Agreement constitutes a valid and binding obligation of ENP;
enforceable against it in accordance with its terms.
(d) CAPITALIZATION. The authorized capital stock of ENP consists of
50,000,000 shares of common stock, par value $0.001 per share, and no shares of
preferred stock. As of the date of this Agreement, ENP has 18,770,001 shares of
common stock issued and outstanding and no shares of preferred stock issued and
outstanding. ENP has entered into agreements with creditors that will result in
the issuance of an additional 65,000 shares. There are options and warrants
outstanding with regard to an additional 2,572,221 shares. No other shares have
otherwise been registered under state or federal securities laws. As of the
Closing Date, all of the issued and outstanding shares of common stock of ENP
are validly issued, fully paid and non-assessable and, there is not and as of
the Closing Date there will not be outstanding any other warrants, options or
other agreements on the part of ENP obligating ENP to issue additional shares of
common or preferred stock or any of its securities of any kind other than as set
forth above. ENP will not issue any shares of capital stock from the date of
this Agreement through the Closing Date except with respect to the Debt
Conversion Shares reflected above and upon the exercise of any of the options
and/or warrants set forth above and any financing with the written approval of
ACT. ENP is a "reporting company" in accordance with Section 12(b) or 12(g) of
the Securities Act of 1934, as amended (the "Exchange Act"), and has filed all
required and/or appropriate annual, periodic and other reports required under
the Exchange Act with the Securities and Exchange Commission. The Common Stock
of ENP is presently listed and trading on the American Stock Exchange under the
symbol "ENP". The Company has received a notice of intent to de-list the
Company's common stock dated March 8, 2002. ENP has filed an appeal against such
delisting with AMEX which is due to be heard on April 3, 2002. The parties agree
to reasonably cooperate in order to maintain the AMEX listing.
(e) OWNERSHIP OF ENP SHARES. The successful closing of the transaction
provided herein for the Escrowed ENP Shares will result in ACT's or assigns, or
the shareholders of ACT, as the case may be, immediate acquisition of record and
beneficial ownership of the Escrowed ENP Shares, free and clear of all
Encumbrances other than as required by Federal and State securities laws. Until
the successful closing of the transaction required herein, no ownership, voting
or beneficial rights will be transferred to ACT.
(f) NO CONFLICT AS TO ENP AND SUBSIDIARIES. Neither the execution and
delivery of this Agreement nor the consummation of the sale of the ENP Shares
will (a) violate any provision of the certificate of incorporation or by-laws
(or other governing instrument) of ENP or any of its Subsidiaries or (b)
violate, or be in conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
excuse performance by any Person of any of its obligations under, or cause the
acceleration of the maturity of any debt or obligation pursuant to, or result in
the creation or imposition of any Encumbrance upon any property or assets of ENP
or any of its Subsidiaries under, any material agreement or commitment to which
ENP or any of its Subsidiaries is a party or by which any of their respective
property or assets is bound, or to which any of the property or assets of ENP or
any of its Subsidiaries is subject, or (c) violate any statute or law or any
judgment, decree, order, regulation or rule of any court or other Governmental
Body applicable to ENP or any of its Subsidiaries except, in the case of
violations, conflicts, defaults, terminations, accelerations or Encumbrances
described in clause (b) of this Section for such matters which are not likely to
have a material adverse effect on the business or financial condition of ENP and
its Subsidiaries, taken as a whole. The transactions referred to herein are
subject to the approval of ENP's shareholders. In the event the shareholders of
ENP do not approve the transactions set forth herein within 60 days of the date
of this Agreement, absent written consent by ACT the ACT Shares shall be
cancelled and shall be immediately returned to ACT.
(g) CONSENTS AND APPROVALS OF GOVERNMENTAL AUTHORITIES. Other than a
filing under Rule 14f-1 and potentially approval by the American Stock Exchange,
and any required shareholder approval, no consent, approval or authorization of,
or declaration, filing or registration with, any Governmental Body is required
to be made or obtained by ENP or any of either of their Subsidiaries in
connection with the execution, delivery and performance of this Agreement by ENP
or the consummation of the sale of the ENP Shares.
(h) OTHER CONSENTS. Other than potential approval by the American Stock
Exchange, no consent of any Person is required to be obtained by ENP to the
execution, delivery and performance of this Agreement or the consummation of the
sale of the ENP Shares, including, but not limited to, consents from parties to
leases or other agreements or commitments, except for any consent which the
failure to obtain would not be likely to have a material adverse effect on the
business and financial condition of ENP.
(i) FINANCIAL STATEMENTS. ENP has delivered to the ACT consolidated
balance sheets of ENP and its Subsidiaries as at December 31, 2001, December 31,
2000, and statements of income and changes in financial position for each of the
years in the two-year periods then ended, together with the report thereon of
ENP's Ernst & Young LLP, independent accountants (the "ENP Financial
Statements") for December 31, 2000. ENP will deliver the audited financial
statements of ENP for the period ended December 31, 2001, together with the
report of ENP's independent accountants, within 30 days of the execution of this
Agreement. Such ENP Financial Statements and notes fairly present the
consolidated financial condition and results of operations of ENP and its
Subsidiaries as at the respective dates thereof and for the periods therein
referred to, all in accordance with generally accepted United States accounting
principles consistently applied throughout the periods involved, except as set
forth in the notes thereto, and shall be utilizable in any SEC filing in
compliance with Rule 310 of Regulation S-B promulgated under the Securities Act.
ENP has delivered or otherwise made available to ACT copies of all annual,
quarterly and other periodic reports filed by ENP with the SEC in accordance
with the Exchange Act.
(j) TITLE TO PROPERTIES. Either ENP or one of its Subsidiaries owns all
the material properties and assets that they purport to own (real, personal and
mixed, tangible and intangible), including, without limitation, all the material
properties and assets reflected in the ENP Financial Statements and all the
material properties and assets purchased or otherwise acquired by ENP or any of
its Subsidiaries since the date of the ENP Financial Statements. The properties
and assets of ENP and its Subsidiaries include all rights, properties and other
assets necessary to permit ENP and its Subsidiaries to conduct ENP's business in
all material respects in the same manner as it is conducted on the date of this
Agreement. All of the assets of the Company are subject to the security interest
of HomeMark, assignee of XxxxXxxxxxx.xxx, Inc. pursuant to separate loan
agreement and security agreement, copies of which have been provided to ACT.
Except with respect to the lien of HomeMark, all properties and assets reflected
in the ENP Financial Statements are free and clear of all material Encumbrances
and are not, in the case of real property, subject to any material rights of
way, building use restrictions, exceptions, variances, reservations or
limitations of any nature whatsoever except, with respect to all such properties
and assets, (a) mortgages or security interests shown on the ENP Financial
Statements as securing specified liabilities or obligations, with respect to
which no default (or event which, with notice or lapse of time or both, would
constitute a default) exists, (b) mortgages or security interests incurred in
connection with the purchase of property or assets after the date of the ENP
Financial Statements (such mortgages and security interests being limited to the
property or assets so acquired), with respect to which no default (or event
which, with notice or lapse of time or both, would constitute a default) exists,
(c) as to real property, (i) imperfections of title, if any, none of which
materially detracts from the value or impairs the use of the property subject
thereto, or impairs the operations of ENP or any of its Subsidiaries and (ii)
zoning laws that do not impair the present or anticipated use of the property
subject thereto, and (d) liens for current taxes not yet due.
(k) BUILDINGS, PLANTS AND EQUIPMENt. The buildings, plants, structures
and material items of equipment and other personal property owned or leased by
ENP or its Subsidiaries are, in all respects material to the business or
financial condition of ENP and its Subsidiaries, taken as a whole, in good
operating condition and repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for which they are being used.
ENP has not received notification that it or any of its Subsidiaries is in
violation of any applicable building, zoning, anti-pollution, health, safety or
other law, ordinance or regulation in respect of its buildings, plants or
structures or their operations, which violation is likely to have a material
adverse effect on the business or financial condition of ENP and its
Subsidiaries, taken as a whole or which would require a payment by ENP or any of
its subsidiaries in excess of $5,000 in the aggregate, and which has not been
cured.
(l) NO CONDEMNATION OR EXPROPRIATIOn. Neither the whole nor any portion
of the property or leaseholds owned or held by ENP or any of its Subsidiaries is
subject to any governmental decree or order to be sold or is being condemned,
expropriated or otherwise taken by any Governmental Body or other Person with or
without payment of compensation therefor, which action is likely to have a
material adverse effect on the business or financial condition of ENP and its
Subsidiaries, taken as a whole.
(m) LITIGATION. Other than the litigation set forth in Schedule 5(m),
there is no action, suit, inquiry, proceeding or investigation by or before any
court or Governmental Body pending or threatened in writing against or involving
ENP or any of its Subsidiaries which is likely to have a material adverse effect
on the business or financial condition of ENP and any of its Subsidiaries, taken
as whole, or which would require a payment by ENP or its subsidiaries in excess
of $5,000 in the aggregate or which questions or challenges the validity of this
Agreement. Neither ENP nor any or its Subsidiaries is subject to any judgment,
order or decree that is likely to have a material adverse effect on the business
or financial condition of ENP or any of its Subsidiaries, taken as a whole, or
which would require a payment by ENP or its subsidiaries in excess of $5,000 in
the aggregate.
(n) ABSENCE OF CERTAIN CHANGEs. Since the date of the ENP Financial
Statements, neither ENP nor any of its Subsidiaries has:
1. suffered the damage or destruction of any of its properties or
assets (whether or not covered by insurance) which is materially adverse to the
business or financial condition of ENP and its Subsidiaries, taken as a whole,
or made any disposition of any of its material properties or assets other than
in the ordinary course of business;
2. made any change or amendment in its certificate of incorporation or
by-laws, or other governing instruments;
3. issued or sold any Equity Securities or other securities, acquired,
directly or indirectly, by redemption or otherwise, any such Equity Securities,
reclassified, split-up or otherwise changed any such Equity Security, or granted
or entered into any options, warrants, calls or commitments of any kind with
respect thereto;
4. organized any new Subsidiary or acquired any Equity Securities of
any Person or any equity or ownership interest in any business;
5. borrowed any funds or incurred, or assumed or become subject to,
whether directly or by way of guarantee or otherwise, any obligation or
liability with respect to any such indebtedness for borrowed money;
6. paid, discharged or satisfied any material claim, liability or
obligation (absolute, accrued, contingent or otherwise), other than in the
ordinary course of business;
7. prepaid any material obligation having a maturity of more than 90
days from the date such obligation was issued or incurred;
8. canceled any material debts or waived any material claims or rights,
except in the ordinary course of business;
9. disposed of or permitted to lapse any rights to the use of any
material patent or registered trademark or copyright or other intellectual
property owned or used by it;
10. granted any general increase in the compensation of officers or
employees (including any such increase pursuant to any employee benefit plan);
11. purchased or entered into any contract or commitment to purchase
any material quantity of raw materials or supplies, or sold or entered into any
contract or commitment to sell any material quantity of property or assets,
except (i) normal contracts or commitments for the purchase of, and normal
purchases of, raw materials or supplies, made in the ordinary course business,
(ii) normal contracts or commitments for the sale of, and normal sales of,
inventory in the ordinary course of business, and (iii) other contracts,
commitments, purchases or sales in the ordinary course of business;
12. made any capital expenditures or additions to property, plant or
equipment or acquired any other property or assets (other than raw materials and
supplies) at a cost in excess of $5,000 in the aggregate;
13. written off or been required to write off any notes or accounts
receivable in an aggregate amount in excess of $5,000;
14. written down or been required to write down any inventory in an
aggregate amount in excess of $5,000;
15. entered into any collective bargaining or union contract or
agreement; or
16. other than the ordinary course of business, incurred any liability
required by generally accepted accounting principles to be reflected on a
balance sheet and material to the business or financial condition of ENP and its
subsidiaries taken as a whole.
(o) NO MATERIAL ADVERSE CHANGE. Since the date of the ENP Financial
Statements, there has not been any material adverse change in the business or
financial condition of ENP and its Subsidiaries taken as a whole. The ENP SEC
filings contain all material information with respect to the business, financial
condition and operations of ENP.
(p) CONTRACTS AND COMMITMENTS. Other than as set forth in Schedule
5(p), neither ENP nor any of its Subsidiaries is a party to any:
1. Contract or agreement (other than purchase or sales orders entered
into in the ordinary course of business) involving any liability on the part of
ENP or one of its Subsidiaries of more than $5,000 and not cancelable by ENP or
the relevant Subsidiary (without liability to ENP or such Subsidiary) within 60
days. ENP has delivered to ACT or the Escrow Agent copies of any and all
agreements, arrangements, contracts or other matters relating to ENP.
2. Lease of personal property involving annual rental payments in
excess of $5,000 and not cancelable by ENP or the relevant Subsidiary (without
liability to ENP or such Subsidiary) within 90 days;
3. Employee bonus, stock option or stock purchase, performance unit,
profit-sharing, pension, savings, retirement, health, deferred or incentive
compensation, insurance or other material employee benefit plan (as defined in
Section 2(3) of ERISA) or program for any of the employees, former employees or
retired employees of ENP or any of its Subsidiaries;
4. Commitment, contract or agreement that is currently expected by the
management of ENP to result in any material loss upon completion or performance
thereof;
5. Contract, agreement or commitment that is material to the business
of ENP and its Subsidiaries, taken as a whole, with any officer, employee,
agent, consultant, advisor, salesman, sales representative, value added
reseller, distributor or dealer; or
6. Except as set forth in Schedule 5(p)(6) (the "Employment
Agreements"), employment agreement or other similar agreement that contains any
severance or termination pay, liabilities or obligations.
All such contracts and agreements are in full force and effect. Neither ENP nor
any or its Subsidiaries is in breach of, in violation of or in default under,
any agreement, instrument, indenture, deed of trust, commitment, contract or
other obligation of any type to which ENP or any of its Subsidiaries is a party
or is or may be bound that relates to the business of ENP or any of its
Subsidiaries or to which any of the assets or properties of ENP or any of its
Subsidiaries is subject, the effect of which breach, violation or default is
likely to materially and adversely affect the business or financial condition of
ENP and its Subsidiaries, taken as a whole.
(q) LABOR RELATIONS. Neither ENP nor any of its Subsidiaries is a party
to any collective bargaining agreement. Except for any matter which is not
likely to have a material adverse effect on the business or financial condition
of ENP and its Subsidiaries, taken as a whole, (a) ENP and each of its
Subsidiaries is in compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment and wages and hours,
and is not engaged in any unfair labor practice, (b) there is no unfair labor
practice complaint against ENP or any of its Subsidiaries pending before the
National Labor Relations Board, (c) there is no labor strike, dispute, slowdown
or stoppage actually pending or threatened against ENP or any of its
Subsidiaries, (d) no representation question exists respecting the employees of
ENP or any of its Subsidiaries, (e) neither ENP nor any of its Subsidiaries has
experienced any strike, work stoppage or other labor difficulty, and (f) no
collective bargaining agreement relating to employees of ENP or any of its
Subsidiaries is currently being negotiated.
(r) EMPLOYEE BENEFIT PLANS. No material employee pension and welfare
benefit plans covering employees of ENP and its Subsidiaries is (1) a
multi-employer plan as defined in Section 3(37) of ERISA, or (2) a defined
benefit plan as defined in Section 3(35) of ERISA, any listed individual account
pension plan is duly qualified as tax exempt under the applicable sections of
the Code, each listed benefit plan and related funding arrangement, if any, has
been maintained in all material respects in compliance with its terms and the
provisions of ERISA and the Code.
(s) COMPLIANCE WITH LAW. The operations of ENP and its Subsidiaries
have been conducted in accordance with all applicable laws and regulations of
all Governmental Bodies having jurisdiction over them, except for violations
thereof which are not likely to have a material adverse effect on the business
or financial condition of ENP and its Subsidiaries, taken as a whole, or which
would not require a payment by ENP or its Subsidiaries in excess of $5,000 in
the aggregate, or which have been cured. Neither ENP nor any of its Subsidiaries
has received any notification of any asserted present or past failure by it to
comply with any such applicable laws or regulations. ENP and its Subsidiaries
have all material licenses, permits, orders or approvals from the governmental
Bodies required for the conduct of their businesses, and are not in material
violation of any such licenses, permits, orders and approvals. All such
licenses, permits, orders and approvals are in full force and effect, and no
suspension or cancellation of any thereof has been threatened.
(t) TAX MATTERS
1. ENP and each of its Subsidiaries (1) shall file prior to Closing all
nonconsolidated and noncombined Tax Returns and all consolidated or combined Tax
Returns that include only ENP and/or its Subsidiaries and not Seller or its
other Affiliates (for the purposes of this Section, such tax Returns shall be
considered nonconsolidated and noncombined Tax Returns) required to be filed
through the date hereof and will have paid any Tax due through the date hereof
with respect to the time periods covered by such nonconsolidated and noncombined
Tax Returns and shall timely pay any such Taxes required to be paid by it after
the date hereof with respect to such Tax Returns and (2) shall prepare and
timely file all such nonconsolidated and noncombined Tax Returns required to be
filed after the date hereof and through the Closing Date and pay all Taxes
required to be paid by it with respect to the periods covered by such Tax
Returns; (B) all such Tax Returns filed pursuant to clause (A) after the date
hereof shall, in each case, be prepared and filed in a manner consistent in all
material respects (including elections and accounting methods and conventions)
with such Tax Return most recently filed in the relevant jurisdiction prior to
the date hereof, except as otherwise required by law or regulation. Any such Tax
Return filed or required to be filed after the date hereof shall not reflect any
new elections or the adoption of any new accounting methods or conventions or
other similar items, except to the extent such particular reflection or adoption
is required to comply with any law or regulation.
2. ENP represents that prior to Closing, all consolidated or combined
Tax Returns (except those described in subparagraph (1) above) required to be
filed by any person through the date hereof that are required or permitted to
include the income, or reflect the activities, operations and transactions, of
ENP or any of its Subsidiaries for any taxable period shall have been timely
filed, and the income, activities, operations and transactions of ENP and
Subsidiaries shall have been properly included and reflected thereon. ENP shall
prepare and file, or cause to be prepared and filed, all such consolidated or
combined Tax Returns that are required or permitted to include the income, or
reflect the activities, operations and transactions, of ENP or any Subsidiary,
with respect to any taxable year or the portion thereof ending on or prior to
the Closing Date, including, without limitation, ENP's consolidated federal
income tax return for such taxable years. Prior to Closing, ENP will timely file
a consolidated federal income tax return for the taxable year ended December 31,
2001 and such return shall include and reflect the income, activities,
operations and transactions of ENP and Subsidiaries for the taxable period then
ended, and hereby expressly covenants and agrees to file a consolidated federal
income tax return, and to include and reflect thereon the income, activities,
operations and transactions of ENP and Subsidiaries for the taxable period
through the Closing Date. All Tax Returns filed pursuant to this subparagraph
(2) after the date hereof shall, in each case, to the extent that such Tax
Returns specifically relate to ENP or any of its Subsidiaries and do not
generally relate to matters affecting other members of ENP's consolidated group,
be prepared and filed in a manner consistent in all material respects (including
elections and accounting methods and conventions) with the Tax Return most
recently filed in the relevant jurisdictions prior to the date hereof, except as
otherwise required by law or regulation. ENP has paid or will pay all Taxes that
may now or hereafter be due with respect to the taxable periods covered by such
consolidated or combined Tax Returns.
3. Neither ENP nor any of its Subsidiaries has agreed, or is required,
to make any adjustment (x) under Section 481(a) of the Code by reason of a
change in accounting method or otherwise or (y) pursuant to any provision of the
Tax Reform Act of 1986, the Revenue Act of 1987 or the Technical and
Miscellaneous Revenue Act of 1988.
4. Neither ENP nor any of its Subsidiaries or any predecessor or
Affiliate of the foregoing has, at any time, filed a consent under Section
341(f)(1) of the Code, or agreed under Section 341(f)(3) of the Code, to have
the provisions of Section 341(f)(2) of the Code apply to any sale of its stock.
5. There is no (nor has there been any request for an) agreement,
waiver or consent providing for an extension of time with respect to the
assessment of any Taxes attributable to ENP or its Subsidiaries, or their assets
or operations and no power of attorney granted by ENP or any of its Subsidiaries
with respect to any Tax matter is currently in force.
6. There is no action, suit, proceeding, investigation, audit, claim,
demand, deficiency or additional assessment in progress, pending or threatened
against or with respect to any Tax attributable to ENP, its Subsidiaries or
their assets or operations.
7. All amounts required to be withheld as of the Closing Date for Taxes
or otherwise have been withheld and paid when due to the appropriate agency or
authority.
8. No property of ENP is "tax-exempt use property " within the meaning
of Section 168(h) of the Code nor property that ENP and/or its Subsidiaries will
be required to treat as being owned by another person pursuant to Section
168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect
immediately prior to the enactment of the Tax Reform Act of 1986.
9. There shall be delivered or made available to the ACT at or prior to
Closing true and complete copies of all income Tax Returns (or with respect to
consolidated or combined returns, the portion thereof) and any other Tax Returns
requested by the ACT as may be relevant to ENP, its Subsidiaries, or their
assets or operations for any and all periods ending after December 31, 1998, or
for any Tax years which are subject to audit or investigation by any taxing
authority or entity.
10. There is no contract, agreement, plan or arrangement, including but
not limited to the provisions of this Agreement, covering any employee or former
employee of ENP or its Subsidiaries that, individually or collectively, could
give rise to the payment of any amount that would not be deductible pursuant to
Section 280G or 162 of the Code.
(u) ENVIRONMENTAL MATTERS.
1. At all times prior to the date hereof, ENP and its Subsidiaries have
complied in all material respects with applicable environmental laws, orders,
regulations, rules and ordinances relating to the Properties (as hereinafter
defined), the violation of which would have a material adverse effect on the
business or financial condition of ENP and its Subsidiaries, taken as a whole,
or which would require a payment by ENP or its Subsidiaries in excess of $5,000
in the aggregate, and which have been duly adopted, imposed or promulgated by
any legislative, executive, administrative or judicial body or officer of any
Governmental Body.
2. The environmental licenses, permits and authorizations that are
material to the operations of ENP and its Subsidiaries, taken as a whole, are in
full force and effect.
3. Neither ENP nor any of its Subsidiaries has released or caused to be
released on or about the properties currently owned or leased by ENP or any of
its Subsidiaries (the "Properties") any (i) pollutants, (ii) contaminants, (iii)
"Hazardous Substances," as that term is defined in Section 101(14) of the
Comprehensive Environmental Response Act, as amended or (iv) "Regulated
Substances," as that term in defined in Section 9001 of the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended,
which would be required to be remediated by any governmental agency with
jurisdiction over the Properties under the authority of laws, regulations and
ordinances as in effect and currently interpreted on the date hereof, which
remediation would have a material adverse effect on the business or financial
condition of ENP and its Subsidiaries, taken as a whole.
(v) ABSENCE OF CERTAIN COMMERCIAL PRACTICES. Neither ENP nor any of its
Subsidiaries has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item of property, however characterized, to any finder,
agent, government official or other party, in the United States or any other
country, which is in any manner related to the business or operations of ENP or
its Subsidiaries, which ENP or one of its Subsidiaries knows or has reason to
believe to have been illegal under any federal, state or local laws of the
United States or any other country having jurisdiction; and neither ENP nor any
of its Subsidiaries has participated, directly or indirectly, in any boycotts or
other similar practices affecting any of its actual or potential customers in
violation of any applicable law or regulation.
(w) TRANSACTIONS WITH DIRECTORS AND OFFICERS. ENP and its Subsidiaries
do not engage in business with any Person in which any of ENP's directors or
officers has a material equity interest. No director or officer of ENP owns any
property, asset or right which is material to the business of ENP and its
Subsidiaries, taken as a whole.
(x) BORROWING AND GUARANTEES. ENP and its Subsidiaries (a) do not have
any indebtedness for borrowed money, (b) are not lending or committed to lend
any money (except for advances to employees in the ordinary course of business),
and (c) are not guarantors or sureties with respect to the obligations of any
Person.
6. REPRESENTATIONS OF ACT. ACT represents and warrants as follows:
(a) OWNERSHIP OF SHARES. As of the Closing Date, ENP will become sole
owner of the Escrowed ACT Shares. The Escrowed ACT Shares will be free from
claims, liens or other encumbrances, except as provided under applicable federal
and state securities laws;
(b) FULLY PAID AND NONASSESSABLE. The Escrowed ACT Shares constitute
duly and validly issued shares of ACT, and are fully paid and nonassessable, and
they further represent that they have the power and the authority to execute
this Agreement and to perform the obligations contemplated hereby;
(c) ORGANIZATION OF ACT; AUTHORIZATION. ACT is a corporation duly
organized, validly existing and in good standing under the laws of Australia
with full corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate action of ACT and this Agreement constitutes a valid and binding
obligation of ACT; enforceable against it in accordance with its terms.
(d) CAPITALIZATION. The authorized capital stock of ACT consists of
1,000,000 shares of common stock, par value $1.00 per share, and 200 shares of
preferred stock. As of the date of this Agreement, ACT has 1,000 shares of
common stock issued and outstanding and 200 shares of preferred stock issued and
outstanding. No shares have otherwise been registered under Australian laws. As
of the Closing Date, all of the issued and outstanding shares of common stock of
ACT are validly issued, fully paid and non-assessable and, there is not and as
of the Closing Date there will not be outstanding any warrants, options or other
agreements on the part of ACT obligating ACT to issue any additional shares of
common or preferred stock or any of its securities of any kind. ACT will not
issue any shares of capital stock from the date of this Agreement through the
Closing Date.
(e) OWNERSHIP OF ACT SHARES. The delivery of certificates provided
herein for the Escrowed ACT Shares will result in ENP's immediate acquisition of
record and beneficial ownership of the Escrowed ACT Shares, free and clear of
all Encumbrances other than as required by Australian securities laws.
(f) NO CONFLICT AS TO ACT AND SUBSIDIARIES. Neither the execution and
delivery of this Agreement nor the consummation of the sale of the ACT Shares
will (a) violate any provision of the certificate of incorporation or by-laws
(or other governing instrument) of ACT or any of its Subsidiaries or (b)
violate, or be in conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
excuse performance by any Person of any of its obligations under, or cause the
acceleration of the maturity of any debt or obligation pursuant to, or result in
the creation or imposition of any Encumbrance upon any property or assets of ACT
or any of its Subsidiaries under, any material agreement or commitment to which
ACT or any of its Subsidiaries is a party or by which any of their respective
property or assets is bound, or to which any of the property or assets of ACT or
any of its Subsidiaries is subject, or (c) violate any statute or law or any
judgment, decree, order, regulation or rule of any court or other Governmental
Body applicable to ACT or any of its Subsidiaries except, in the case of
violations, conflicts, defaults, terminations, accelerations or Encumbrances
described in clause (b) of this Section for such matters which are not likely to
have a material adverse effect on the business or financial condition of ACT and
its Subsidiaries, taken as a whole.
(g) CONSENTS AND APPROVALS OF GOVERNMENTAL AUTHORITIES. No consent,
approval or authorization of, or declaration, filing or registration with, any
Governmental Body is required to be made or obtained by ACT or any of either of
their Subsidiaries in connection with the execution, delivery and performance of
this Agreement by ACT or the consummation of the sale of the ACT Shares.
(h) OTHER CONSENTS. No consent of any Person is required to be obtained
by ACT to the execution, delivery and performance of this Agreement or the
consummation of the sale of the ACT Shares, including, but not limited to,
consents from parties to leases or other agreements or commitments, except for
any consent which the failure to obtain would not be likely to have a material
adverse effect on the business and financial condition of ACT.
(i) FINANCIAL STATEMENTS. On or before that date which is fourteen days
from the execution of this Agreement, ACT will deliver to ENP audited financial
statements, including consolidated balance sheets of ACT and its Subsidiaries as
at June 30, , 2001, June 30, 2000, and statements of income and changes in
financial position for each of the years in the two-year periods then ended,
together with the report thereon of ACT's independent accountants (the "ACT
Financial Statements"). Such ACT Financial Statements and notes will fairly
present the consolidated financial condition and results of operations of ACT
and its Subsidiaries as at the respective dates thereof and for the periods
therein referred to, all in accordance with generally accepted United States
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto, and shall be utilizable in any SEC
filing in compliance with Rule 310 of Regulation S-B promulgated under the
Securities Act.
(j) TITLE TO PROPERTIES. Either ACT or one of its Subsidiaries owns all
the material properties and assets that they purport to own (real, personal and
mixed, tangible and intangible), including, without limitation, all the material
properties and assets reflected in the ACT Financial Statements and all the
material properties and assets purchased or otherwise acquired by ACT or any of
its Subsidiaries since the date of the ACT Financial Statements All properties
and assets reflected in the ACT Financial Statements are free and clear of all
material Encumbrances and are not, in the case of real property, subject to any
material rights of way, building use restrictions, exceptions, variances,
reservations or limitations of any nature whatsoever except, with respect to all
such properties and assets, (a) mortgages or security interests shown on the ACT
Financial Statements as securing specified liabilities or obligations, with
respect to which no default (or event which, with notice or lapse of time or
both, would constitute a default) exists, (b) mortgages or security interests
incurred in connection with the purchase of property or assets after the date of
the ACT Financial Statements (such mortgages and security interests being
limited to the property or assets so acquired), with respect to which no default
(or event which, with notice or lapse of time or both, would constitute a
default) exists, (c) as to real property, (i) imperfections of title, if any,
none of which materially detracts from the value or impairs the use of the
property subject thereto, or impairs the operations of ACT or any of its
Subsidiaries and (ii) zoning laws that do not impair the present or anticipated
use of the property subject thereto, and (d) liens for current taxes not yet
due. The properties and assets of ACT and its Subsidiaries include all rights,
properties and other assets necessary to permit ACT and its Subsidiaries to
conduct ACT's business in all material respects in the same manner as it is
conducted on the date of this Agreement.
(k) BUILDINGS, PLANTS AND EQUIPMENT. The buildings, plants, structures
and material items of equipment and other personal property owned or leased by
ACT or its Subsidiaries are, in all respects material to the business or
financial condition of ACT and its Subsidiaries, taken as a whole, in good
operating condition and repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for which they are being used.
ACT has not received notification that it or any of its Subsidiaries is in
violation of any applicable building, zoning, anti-pollution, health, safety or
other law, ordinance or regulation in respect of its buildings, plants or
structures or their operations, which violation is likely to have a material
adverse effect on the business or financial condition of ACT and its
Subsidiaries, taken as a whole or which would require a payment by ACT or any of
its subsidiaries in excess of $5,000 in the aggregate, and which has not been
cured.
(l) NO CONDEMNATION OR EXPROPRIATION. Neither the whole nor any portion
of the property or leaseholds owned or held by ACT or any of its Subsidiaries is
subject to any governmental decree or order to be sold or is being condemned,
expropriated or otherwise taken by any Governmental Body or other Person with or
without payment of compensation therefor, which action is likely to have a
material adverse effect on the business or financial condition of ACT and its
Subsidiaries, taken as a whole.
(m) LITIGATION. Except as set forth in Schedule 6(m), there is no
action, suit, inquiry, proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing against or involving ACT or
any of its Subsidiaries which is likely to have a material adverse effect on the
business or financial condition of ACT and any of its Subsidiaries, taken as
whole Neither ACT nor any or its Subsidiaries is subject to any judgment, order
or decree that is likely to have a material adverse effect on the business or
financial condition of ACT or any of its Subsidiaries, taken as a whole, or
which would require a payment by ACT or its subsidiaries in excess of $5,000 in
the aggregate.
(n) ABSENCE OF CERTAIN CHANGES. Since the date of the ACT Financial
Statements, neither ACT nor any of
its Subsidiaries has:
1. suffered the damage or destruction of any of its properties or
assets (whether or not covered by insurance) which is materially adverse to the
business or financial condition of ACT and its Subsidiaries, taken as a whole,
or made any disposition of any of its material properties or assets other than
in the ordinary course of business;
2. made any change or amendment in its certificate of incorporation or
by-laws, or other governing instruments;
3. issued or sold any Equity Securities or other securities, acquired,
directly or indirectly, by redemption or otherwise, any such Equity Securities,
reclassified, split-up or otherwise changed any such Equity Security, or granted
or entered into any options, warrants, calls or commitments of any kind with
respect thereto;
4. organized any new Subsidiary or acquired any Equity Securities of
any Person or any equity or ownership interest in any business;
6. paid, discharged or satisfied any material claim, liability or
obligation (absolute, accrued, contingent or otherwise), other than in the
ordinary course of business;
7. prepaid any material obligation having a maturity of more than 90
days from the date such obligation was issued or incurred;
8. canceled any material debts or waived any material claims or rights,
except in the ordinary course of business;
9. disposed of or permitted to lapse any rights to the use of any
material patent or registered trademark or copyright or other intellectual
property owned or used by it;
10. granted any general increase in the compensation of officers or
employees (including any such increase pursuant to any employee benefit plan);
11. purchased or entered into any contract or commitment to purchase
any material quantity of raw materials or supplies, or sold or entered into any
contract or commitment to sell any material quantity of property or assets,
except (i) normal contracts or commitments for the purchase of, and normal
purchases of, raw materials or supplies, made in the ordinary course business,
(ii) normal contracts or commitments for the sale of, and normal sales of,
inventory in the ordinary course of business, and (iii) other contracts,
commitments, purchases or sales in the ordinary course of business;
13. written off or been required to write off any notes or accounts
receivable in an aggregate amount in excess of $5,000;
14. written down or been required to write down any inventory in an
aggregate amount in excess of $ 5,000;
15. entered into any collective bargaining or union contract or
agreement; or
16. other than the ordinary course of business, incurred any liability
required by generally accepted accounting principles to be reflected on a
balance sheet and material to the business or financial condition of ACT and its
subsidiaries taken as a whole.
(o) NO MATERIAL ADVERSE CHANGE. Since the date of the ACT Financial
Statements, there has not been any material adverse change in the business or
financial condition of ACT and its Subsidiaries taken as a whole.
(q) LABOR RELATIONS. Neither ACT nor any of its Subsidiaries is a party
to any collective bargaining agreement. Except for any matter which is not
likely to have a material adverse effect on the business or financial condition
of ACT and its Subsidiaries, taken as a whole, (a) ACT and each of its
Subsidiaries is in compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment and wages and hours,
and is not engaged in any unfair labor practice, (b) there is no labor strike,
dispute, slowdown or stoppage actually pending or threatened against ACT or any
of its Subsidiaries, (d) no representation question exists respecting the
employees of ACT or any of its Subsidiaries, (e) neither ACT nor any of its
Subsidiaries has experienced any strike, work stoppage or other labor
difficulty, and (f) no collective bargaining agreement relating to employees of
ACT or any of its Subsidiaries is currently being negotiated.
(s) COMPLIANCE WITH LAW. The operations of ACT and its Subsidiaries
have been conducted in accordance with all applicable laws and regulations of
all Governmental Bodies having jurisdiction over them, except for violations
thereof which are not likely to have a material adverse effect on the business
or financial condition of ACT and its Subsidiaries, taken as a whole, or which
would not require a payment by ACT or its Subsidiaries in excess of $5,000 in
the aggregate, or which have been cured. Neither ACT nor any of its Subsidiaries
has received any notification of any asserted present or past failure by it to
comply with any such applicable laws or regulations. ACT and its Subsidiaries
have all material licenses, permits, orders or approvals from the Governmental
Bodies required for the conduct of their businesses, and are not in material
violation of any such licenses, permits, orders and approvals. All such
licenses, permits, orders and approvals are in full force and effect, and no
suspension or cancellation of any thereof has been threatened.
(t) TAX MATTERS. ACT and each of its Subsidiaries (1) shall file prior
to Closing all nonconsolidated and noncombined Tax Returns and all consolidated
or combined Tax Returns that include only ACT and/or its Subsidiaries and not
Seller or its other Affiliates (for the purposes of this Section, such tax
Returns shall be considered nonconsolidated and noncombined Tax Returns)
required to be filed through the date hereof and will have paid any Tax due
through the date hereof with respect to the time periods covered by such
nonconsolidated and noncombined Tax Returns and shall timely pay any such Taxes
required to be paid by it after the date hereof with respect to such Tax Returns
and (2) shall prepare and timely file all such nonconsolidated and noncombined
Tax Returns required to be filed after the date hereof and through the Closing
Date and pay all Taxes required to be paid by it with respect to the periods
covered by such Tax Returns; (B) all such Tax Returns filed pursuant to clause
(A) after the date hereof shall, in each case, be prepared and filed in a manner
consistent in all material respects (including elections and accounting methods
and conventions) with such Tax Return most recently filed in the relevant
jurisdiction prior to the date hereof, except as otherwise required by law or
regulation.
(u) ENVIRONMENTAL MATTERS.
1. At all times prior to the date hereof, ACT and its Subsidiaries have
complied in all material respects with applicable environmental laws, orders,
regulations, rules and ordinances relating to the Properties (as hereinafter
defined), the violation of which would have a material adverse effect on the
business or financial condition of ACT and its Subsidiaries, taken as a whole,
or which would require a payment by ACT or its Subsidiaries in excess of $2,000
in the aggregate, and which have been duly adopted, imposed or promulgated by
any legislative, executive, administrative or judicial body or officer of any
Governmental Body.
2. The environmental licenses, permits and authorizations that are
material to the operations of ACT and its Subsidiaries, taken as a whole, are in
full force and effect.
(w) TRANSACTIONS WITH DIRECTORS AND OFFICERS. Except as set forth in
Schedule 6(w), ACT and its Subsidiaries do not engage in business with any
Person in which any of ACT's directors or officers has a material equity
interest. No director or officer of ACT owns any property, asset or right which
is material to the business of ACT and its Subsidiaries, taken as a whole.
7. PROHIBITED ACTS. Except as otherwise expressly set forth herein, ENP
shall not do any of the following things prior to the Closing Date:
(a) Declare or pay any dividends or other distributions on its stock or
purchase or redeem any of its stock; or
(b) Issue any stock or other securities, including any rights or
options to purchase or otherwise acquire any of its stock, and shall not issue
any notes or other evidences of indebtedness.
(c) Enter into any agreements or contracts binding ENP with respect to
any matters.
8. RESIGNATION OF OFFICERS AND DIRECTORS OF ENP. Immediately prior to
the Closing Date, all officers and all but two directors of ENP will submit
their resignations. Such remaining directors together with the five newly
appointed directors will appoint new management as directed by ACT so as to
effect an orderly change of control.
9. CONDITIONS TO THE OBLIGATIONS OF ACT.
(a) The obligations of ACT to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, at or before the Closing Date
of the following further conditions: (i) each of the representations and
warranties of the ENP contained in this Agreement, or in any written statement,
exhibit, addendum, financial statement or schedule or other document delivered
pursuant hereto or in connection with the transaction contemplated hereby shall
be true in all respects as at the Closing Date, as required specifically herein,
as if then made (except to the extent waived hereunder or as affected by the
transactions contemplated hereby); (ii) ENP shall have performed and complied
with all covenants, agreements and conditions required by this Agreement to be
performed or complied with by it prior to at the Closing Date and ACT shall have
been furnished with a certificate of the President and Treasurer of ENP dated
the Closing Date certifying in such details as ACT may reasonably request to the
fulfillment of such conditions; (iii) the transaction and continued listing
shall have been approved by the American Stock Exchange; and (iv) all documents
and proceedings of ENP and ACT in connection with the transactions contemplated
hereby shall have been approved as to form and substance by ACT and its legal
counsel.
(b) All of the representations and warranties of ENP contained in this
Agreement, or any exhibit thereto shall have been acknowledged by ENP and shall
be true in all material respects on the Closing Date as if then made. All such
representations and warranties shall survive the Closing Date of this
transaction.
(c) ACT shall have completed to its reasonable satisfaction a due
diligence investigation of the books, records, assets and properties of ENP and
shall not have found anything which would adversely impact on the financial
condition, operations or status of ENP.
10. CONDITIONS TO THE OBLIGATIONS OF ENP.
(a) The obligations of ENP to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, at or before the Closing Date,
of the following further conditions; (i) each of the representations and
warranties of ACT contained in this Agreement or in any written statement,
exhibit, addendum, financial statement or schedule or other document delivered
pursuant hereto or in connection with the transactions contemplated hereby shall
be true in all respects as at the Closing Date, as if then made (except to the
extent waived hereunder or as affected by the transactions contemplated hereby);
(ii) ACT shall have performed and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by them
prior to the Closing Date (including without limitation the payment set forth
herein).; and (iii) the transaction and continued listing shall be approved by
the American Stock Exchange.
(b) All of the representations and warranties of ACT contained in this
Agreement, or any exhibit thereto shall have been acknowledged by ACT and shall
be true in all material respects on the Closing Date as if then made. All such
representations and warranties shall survive the Closing Date of this
transaction.
(c) ENP shall have completed to its reasonable satisfaction a due
diligence investigation of the books, records, assets and properties of ACT and
shall not have found anything which would adversely impact on the financial
condition, operations or status of ACT.
11. NOTICES. Any notice which any of the parties hereto may desire to
serve upon any of the other parties hereto shall be in writing and shall be
conclusively deemed to have been received by the party at its address, if
mailed, postage prepaid, United States mail, registered, return receipt
requested, to the following addresses:
If to ENP: Entreport Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx X'Xxxxxxxxx
If to ACT: Advanced Communications Technologies
(Australia) Pty Ltd.
000 Xxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, Xxxxxxxx
Xxxxxxxxx 3000
Attn: Xxxxx Xxx
Copy to: Xxxxxx Law Group
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx
12. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the heirs, personal representatives and successors and assigns of the
parties.
13. CHOICE OF LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
14. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, all of which taken together shall constitute an entire agreement.
15. CONFIDENTIAL INFORMATION. Each of ENP and ACT hereby acknowledges
and agrees that all information disclosed to each other whether written or oral,
relating to the other's business activities, its customer names, addresses, all
operating plans, information relating to its existing services, new or
envisioned products or services and the development thereof, scientific,
engineering, or technical information relating to the others business, marketing
or product promotional material, including brochures, product literature, plan
sheets, and any and all reports generated to customers, with regard to
customers, unpublished list of names, and all information relating to order
processing, pricing, cost and quotations, and any and all information relating
to relationships with customers, is considered confidential information, and is
proprietary to, and is considered the invaluable trade secret of such party
(collectively "Confidential Information"). Any disclosure of any Confidential
Information by any party hereto, its employees, or representatives shall cause
immediate, substantial, and irreparable harm and loss to the other. Each party
understands that the other desires to keep such Confidential Information in the
strictest confidence, and that such party's agreement to do so is a continuing
condition of the receipt and possession of Confidential Information, and a
material provision of this agreement, and a condition that shall survive the
termination of this Agreement. Consequently, each party shall use Confidential
Information for the sole purpose of performing its obligations as provided
herein.
16. PUBLIC ANNOUNCEMENT. The parties shall make no public announcement
concerning this agreement, their discussions or any other letters, memos or
agreements between the parties relating to this agreement until such time as
they agree to the contents of a mutually satisfactory press release which they
intend to release on the date of execution of this Agreement. Either of the
parties, but only after reasonable consultation with the other, may make
disclosure if required under applicable law.
17. ENTIRE AGREEMENT. This Agreement, together with the Exchange
Agreement, sets forth the entire agreement and understanding of the Parties
hereto with respect to the transactions contemplated hereby, and supersedes all
prior agreements, arrangements and understandings related to the subject matter
hereof. No understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral, express or
implied, whether by statute or otherwise, has been made by any Party hereto
which is not embodied in this Agreement or the written statements, certificates,
or other documents delivered pursuant hereto or in connection with the
transactions contemplated hereby, and no party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
18. ATTORNEY'S FEES. Should any action be commenced between the parties
to this Agreement concerning the matters set forth in this Agreement or the
right and duties of either in relation thereto, the prevailing party in such
action shall be entitled, in addition to such other relief as may be granted, to
a reasonable sum as and for its Attorney's Fees and Costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ENTREPORT CORPORATION ADVANCED COMMUNICATIONS
a Florida corporation TECHNOLOGIES (AUSTRALIA)
PTY. LTD., an Australian corporation
By: By:
------------------------------------ --------------------------------
Its: Xxxxx X'Xxxxxxxxx, Chairman Its: Xxxxx Xxx, President
