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Exhibit 2.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement") is entered into as of
the 29th day of October, 1999, by and between MANATEE-AMERICAN FINANCIAL CORP.,
a Florida corporation ("Manatee"), and EMAGISOFT CORPORATION f/k/a NET
ADVANTAGE, INC., a Florida corporation ("Emagisoft"), and the present owners of
all of the issued and outstanding shares of the capital stock of Emagisoft (the
"Emagisoft Stockholders").
W I T N E S S E T H:
WHEREAS, the Emagisoft Stockholders, as set forth on the attached
Exhibit "A", own all of the issued and outstanding shares of the capital stock
of Emagisoft, which is comprised of Ten Million (10,000,000) shares of Class A
Voting Common Stock, having a par value of $.001 per share (the "Emagisoft
Shares"). Manatee desires to acquire all of the Emagisoft Shares solely in
exchange for common stock of Manatee, making Emagisoft a wholly-owned
subsidiary of Manatee; and
WHEREAS, the Emagisoft Stockholders desire to acquire common stock of
Manatee in exchange for the Emagisoft Shares, as more fully set forth herein.
NOW, THEREFORE, for the mutual consideration set out herein, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. SHARE EXCHANGE. The Emagisoft Stockholders are the present owners
of all of the issued and outstanding Emagisoft Shares. It is hereby agreed that
all of the Emagisoft Shares shall be acquired by Manatee in exchange solely for
shares of common stock of Manatee, having a par value of $.0001 per share (the
"Manatee Shares").
2. DELIVERY OF SHARES. Manatee and the Emagisoft Stockholders agree
that on the Closing Date or at the Closing as hereinafter defined, the
Emagisoft Shares shall be delivered to Manatee in exchange for the Manatee
Shares.
(a) The Manatee Shares shall be delivered to the Emagisoft
Stockholders in exchange for their Emagisoft Shares on the basis of one (1)
Manatee Share for one (1) Emagisoft Share.
(b) At Closing, Manatee shall, subject to the conditions set forth
herein, issue Ten Million (10,000,000) Manatee Shares to the Emagisoft
Stockholders and/or their designee(s) in accordance
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with Exhibit "A". The certificates representing such Manatee Shares shall bear
the following or similar restrictive transfer legend:
The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended (the
"Act") and may not be offered, sold, assigned, pledged, hypothecated
or otherwise transferred unless (1) they are registered under the Act
or (2) the holder has delivered to the issuer an opinion of counsel,
which opinion shall be satisfactory to the issuer, to the effect that
there is an available exemption from registration under the Act and
any applicable state securities laws or that registration is otherwise
not required.
(c) Unless otherwise agreed to by Manatee, Emagisoft and the
Emagisoft Stockholders, the transactions contemplated hereunder shall close
only in the event Manatee is able to acquire at least eighty percent (80%) of
the Emagisoft Shares. In the event Manatee acquires at least eighty percent
(80%) but less than all of the Emagisoft Shares, the Manatee Shares to be
issued and delivered hereunder shall be reduced proportionately.
3. OUTSTANDING SECURITIES. On the Closing Date:
(a) Each one (1) Emagisoft Share issued and outstanding immediately
prior to the Closing shall be exchanged for one (1) Manatee Share. Thereafter,
all such Emagisoft Shares shall be deemed to be owned by Manatee. The holders
of certificates evidencing the Emagisoft Shares outstanding immediately prior
to the Closing shall cease to have any rights with respect to such Emagisoft
Shares except as otherwise provided herein or by law.
(b) Two Million Two Hundred Fifty Thousand (2,250,000) shares of
common stock of Manatee previously issued and outstanding prior to the Closing
will remain outstanding.
4. POST-ACQUISITION EVENTS. The parties agree that as soon as
practicable after the Closing Date the following shall occur:
(a) The acceptance of the resignation of the sole existing Manatee
officer and director and the election and appointment of new officers and
directors.
(b) Manatee shall cause to be prepared a Current Report on Form 8-K
to be filed with the U.S. Securities and Exchange Commission ("SEC"), and
Emagisoft and Manatee shall reasonably assist SEC counsel who they may utilize
for the preparation of the Form 8-K and any other required SEC filings.
(c) Manatee shall file an amendment to its Articles of
Incorporation changing its name to "Emagisoft Technologies, Inc."
(d) Manatee and Emagisoft with the assistance of SEC counsel who
they may each utilize, shall cooperate in causing a broker-dealer which is a
member of the National Association of Securities Dealers, Inc. ("NASD") to file
a Form 211 with the NASD to list for trading purposes the common stock of
Manatee on the OTC Bulletin Board ("OTCBB"). In
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connection with said preparation and filing of a Form 211 with the NASD,
Manatee and Emagisoft agree to cooperate in providing and explaining certain
corporate and other information with respect to the transactions contemplated
hereunder, including: (i) a complete description of the history and background
of Manatee, (ii) a complete description of Emagisoft's business, (iii) audited
financial statements of Manatee and Emagisoft as of December 31, 1998, and (iv)
biographical and other information concerning the new officers and directors of
Manatee. In the event the common stock of Manatee is not listed for trading on
the OTCBB within ninety (90) days of the Closing Date, Manatee shall purchase,
acquire and accept the Manatee Shares received by the Emagisoft Stockholders
hereunder in exchange for the Emagisoft Shares transferred to Manatee
hereunder, the result of which shall be to place Manatee, Emagisoft and the
Emagisoft Stockholders in the same position they would have been in if the
transactions contemplated under this Agreement had not been consummated.
5. OTHER MATTERS.
(a) Prior to the Closing, there shall be no change in the current
outstanding capital structure of Manatee or Emagisoft and, in connection
therewith, there shall be no issuance of shares, options, warranties or other
securities, stock split, recapitalization, or exchange of shares with respect
to or rights issued in respect of, the capital stock of Manatee or Emagisoft
after the date hereof, and there shall be no dividends paid on the capital
stock of Manatee or Emagisoft.
(b) Manatee and Emagisoft shall have received all requisite
stockholder approval of the transactions contemplated under this Agreement.
6. SURRENDER AND ISSUANCE OF SECURITIES. On the Closing Date:
(a) The Emagisoft Stockholders shall surrender for cancellation
certificates representing their Emagisoft Shares duly endorsed for transfer to
Manatee.
(b) Manatee shall issue and deliver certificates representing the
Manatee Shares in accordance with Exhibit "A".
7. REPRESENTATIONS AND WARRANTIES OF THE EMAGISOFT STOCKHOLDERS. The
Emagisoft Stockholders hereby represent and warrant to the best of their
knowledge and belief as follows, which warranties and representations shall
also be true as of the Closing Date:
(a) The Emagisoft Shares are free from claims, liens, or other
encumbrances, and the Emagisoft Stockholders have good title and the
unqualified right to transfer and dispose of such Emagisoft Shares.
(b) The Emagisoft Stockholders are the sole registered holders of
the issued and outstanding Emagisoft Shares as set forth in Exhibit "A".
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(c) The Emagisoft Stockholders have no present intent to sell or
dispose of the Manatee Shares to be acquired hereunder and are under no binding
obligation, formal commitment, or existing plan to sell or otherwise dispose of
the Manatee Shares.
8. REPRESENTATIONS AND WARRANTIES OF EMAGISOFT. Emagisoft hereby
represents and warrants to the best of its knowledge and belief as follows,
which warranties and representations shall also be true as of the Closing Date:
(a) The Emagisoft Stockholders listed on the attached Exhibit "A"
are the sole owners of record and beneficially own all of the issued and
outstanding Emagisoft Shares.
(b) Emagisoft has the corporate power to enter into this Agreement
and to perform its obligations hereunder. The execution and performance of this
Agreement will not constitute a breach of any material agreement, indenture,
mortgage, license or other instrument or document to which Emagisoft is a party
or by which it or its properties is bound, and will not violate any judgment,
decree, order, writ, or applicable rule, statute, or regulation. The execution
and performance of this Agreement will not violate or conflict with any
provision of the Articles of Incorporation or Bylaws of Emagisoft.
(c) Emagisoft has one wholly-owned subsidiary corporation,
Interactive Media Solutions, Inc. ("Interactive"), a Florida corporation.
(d) The audited financial statements of Emagisoft and Interactive
as of and for the periods ending December 31, 1996, 1997 and 1998, and the
unaudited financial statements of Emagisoft and Interactive for the six month
period ended June 30, 1999, which have been delivered to Manatee (hereinafter
referred to as the "Emagisoft Financial Statements") present fairly, in all
material respects, the financial condition of Emagisoft and Interactive as of
the dates thereof and the results of operations and changes in financial
position of Emagisoft and Interactive for the periods covered. Emagisoft and
Interactive have good title to all assets shown on the Emagisoft Financial
Statements subject only to dispositions and other transactions in the ordinary
course of business, the disclosures set forth therein and liens and
encumbrances of record. The Emagisoft Financial Statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis, except as may be indicated therein or in notes thereto, and
meet or can be made to meet SEC financial reporting requirements.
(e) Since June 30, 1999, there have not been any material adverse
changes in the financial position of Emagisoft or Interactive except changes
arising in the ordinary course of business which changes will in no event
materially and adversely affect the financial position of Emagisoft or
Interactive.
(f) The authorized capital stock of Emagisoft consists of: (i)
10,000,000 shares of Class A Voting Common Stock, $.001 par value, (ii)
10,000,000 shares of Class B Non-Voting Common Stock, $.001 par value, and
(iii) 10,000,000 shares of Preferred Stock, $.001 par value. All outstanding
shares of the capital stock of Emagisoft are validly issued, fully paid and
nonassessable. There are no existing options, calls, warrants, preemptive
rights or
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commitments of any character relating to the issued or unissued capital stock
or other securities of Emagisoft, other than as described in Exhibit "B"
attached hereto.
(g) Neither Emagisoft nor Interactive is a party to any material
litigation or any governmental investigation or proceeding.
(h) Emagisoft and Interactive are duly organized, validly existing
and in good standing under the laws of the jurisdiction of their incorporation,
and presently has and at the Closing shall have the corporate power to own
their properties and to carry on their business as then being conducted and
shall be duly qualified to do business in any jurisdiction where so required
except where the failure to so qualify would have no material negative impact.
(i) Emagisoft and Interactive have (or, by the Closing Date, will
have) filed all federal, state, county and local income, excise, property and
other tax, governmental and/or related returns, forms or reports (or extensions
thereof) which are due or required to be filed by them prior to the Closing,
and/or have (or will have) paid or made adequate provisions for the payment of
all taxes, fees or assessments which have or may become due pursuant to such
returns or pursuant to any assessments received. Neither Emagisoft nor
Interactive is delinquent for any tax, penalty, interest, assessment or charge.
(j) Emagisoft has not breached, and there is no pending or
threatened claim that Emagisoft has breached any of the terms or conditions of
any agreement to which it is a party or by which it or its properties is bound.
Emagisoft has previously given Manatee copies of or access to all material
commitments and/or agreements to which Emagisoft is a party, including all
relationships or dealings with related parties or affiliates.
(k) Emagisoft has delivered to Manatee, in addition to the
documents delivered under this Agreement, a true and complete copy of its: (i)
Federal and Florida tax returns for the years 1998, 1997 and 1996, (ii)
Confidential Business Plan, (iii) a current stockholders list, and (iv) copies
of the Articles of Incorporation, as amended, Bylaws and corporate minutes and
resolutions.
(l) Emagisoft has made its corporate and financial records, minute
book, stock register and other corporate and financial documents available for
review to present management of Manatee prior to the Closing, during reasonable
business hours and on reasonable notice.
(m) All information regarding Emagisoft, Interactive and the
Emagisoft Stockholders which is set forth herein or which has otherwise been
provided to Manatee is true and accurate in all material respects.
9. REPRESENTATION AND WARRANTIES OF MANATEE. Manatee hereby represents
and warrants to the best of its knowledge and belief as follows, which
representations and warranties shall also be true as of the Closing Date:
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(a) The Manatee Shares to be issued and delivered to the Emagisoft
Stockholders in accordance with Exhibit "A" will, when so issued and delivered,
constitute duly authorized, validly and legally issued Manatee Shares, fully
paid and nonassessable.
(b) Manatee has the corporate power to enter into this Agreement
and to perform its obligations hereunder. The execution and performance of this
Agreement will not constitute a breach of any material agreement, indenture,
mortgage, license or other instrument or document to which Manatee is a party
or by which it or its properties is bound, and will not violate any judgment,
decree, order, writ, or applicable rule, statute, or regulation. The execution
and performance of this Agreement will not violate or conflict with any
provision of the Articles and Incorporation or Bylaws of Manatee.
(c) The audited financial statements of Manatee as of and for the
periods ending December 31, 1996, 1997 and 1998, and the unaudited financial
statements of Manatee for the three month periods ended March 31, 1999, and
June 30, 1999, which have been delivered to Emagisoft (hereinafter referred to
as the "Manatee Financial Statements") present fairly, in all material
respects, the financial condition of Manatee as of the dates thereof and the
results of its operations and changes in financial position for the periods
covered. Manatee has good title to all assets shown on the Manatee Financial
Statements subject only to dispositions and other transactions in the ordinary
course of business, the disclosures set forth therein and liens and
encumbrances of record. The Manatee Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis, except as may be indicated therein or in notes thereto, and
meet or can be made to meet SEC financial reporting requirements.
(d) Since June 30, 1999, there have not been any material adverse
changes in the financial position of Manatee except change arising in the
ordinary course of business, which changes will in no event materially and
adversely affect the financial position of Manatee.
(e) The authorized capital stock of Manatee consists of: (i)
20,000,000 shares of common stock, $.0001 par value, and (ii) 5,000,000 shares
of preferred stock, $.0001 par value. All outstanding shares of the capital
stock of Manatee are validly issued, fully paid and nonassessable. No shares of
preferred stock are issued and outstanding. No shares of preferred stock are
issued and outstanding. There are no existing options, calls, warrants,
preemptive rights or commitments of any character relating to the issued or
unissued capital stock or other securities of Manatee.
(f) Manatee is not a party to any material litigation or any
governmental investigation or proceeding.
(g) Manatee is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, and presently
has and at the Closing shall have the corporate power to own its property and
to carry on its business as then being conducted and shall be duly qualified to
do business in any jurisdiction where so required except where the failure to
so qualify would have no material negative impact.
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(h) Manatee has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms, or
reports, which are due or required to be filed by it prior to the date hereof
and has paid or made adequate provision for the payment of all taxes, fees, or
assessments which have or may become due pursuant to such returns or pursuant
to any assessments received. Manatee is not delinquent or obligated for any
tax, penalty, interest, delinquency or charge.
(i) Manatee has not breached, and there is no pending or threatened
claim that Manatee has breached any of the terms or conditions of any agreement
to which it is a party or by which it or its properties is bound. Manatee is
not a party to any material commitment or agreement, and it has disclosed to
Emagisoft and the Emagisoft Stockholders any relationships or dealings with
related parties or affiliates.
(j) Manatee has delivered to Emagisoft, in addition to the
documents delivered under this Agreement, a true and complete copy of its: (i)
Prospectus dated September 21, 1994, as declared effective by the SEC, (ii)
Quarterly reports on Form 10-QSB for the periods ended June 30, 1999, March 31,
1999, March 31, 1997, September 30, 1996, June 30, 1996 and March 31, 1996, as
filed with the SEC, (iii) Annual Report on Form 10-KSB for the year ended
December 31, 1997, as filed with the SEC, (iv) Federal and Florida tax returns
for the years 1998, 1997, 1996 and 1995, (v) a current stockholders list, and
(vi) copies of the Articles of Incorporation, as amended, Bylaws and corporate
minutes and resolutions. As of their respective dates, to the best knowledge
and belief of Manatee, the foregoing documents filed with the SEC did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statement therein,
in light of the circumstance under which they are made, not misleading.
(k) Manatee has no subsidiaries.
(l) Manatee has made its corporate and financial records, minute
book, stock register and other corporate and financial documents available for
review to present management of Emagisoft prior to the Closing, during
reasonable business hours and on reasonable notice.
(m) All information regarding Manatee which is set forth herein or
has otherwise been provided by Manatee to Emagisoft and the Emagisoft
Stockholders is true and accurate in all material respects.
(n) Manatee is current in and in compliance with its reporting
obligations under the Securities Exchange Act of 1934, as amended, and all
reports filed by Manatee with the SEC are true, complete and accurate in all
material respects, and there is no information or event required to be
disclosed that has not been disclosed in any of Manatee's public filings as of
the Closing Date.
10. CLOSING. The Closing of the transactions contemplated herein shall
take place on such date (the "Closing" or Closing Date") as mutually determined
by the parties hereto when all conditions precedent have been met and all
required documents have been delivered, which
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Closing is expected to be on or about October 20, 1999, but not later than
October 29, 1999, unless extended by mutual consent of all parties hereto.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE EMAGISOFT
STOCKHOLDERS. All obligations of the Emagisoft Stockholders under this
Agreement are subject to the fulfillment of each of the following conditions:
(a) The representations and warranties of Manatee contained in this
Agreement or in any certificate or document delivered pursuant to the
provisions hereof shall be true in all material respects at and as of the
Closing Date as though such representations and warranties were made at and as
of such time.
(b) Manatee shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing, and shall
have executed and delivered all documents required by this Agreement to be
executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the Board of Directors and the
shareholders of Manatee shall have authorized and approved the execution,
delivery and performance of this Agreement and consummation of the transactions
contemplated hereunder.
(d) At the Closing, the sole existing officer and director of
Manatee shall have resigned in writing from all positions as a director and
officer of Manatee.
(e) The Manatee Shares to be issued to the Emagisoft Stockholders
at Closing will be validly issued, nonassessable and fully paid under
applicable corporation law and will be issued in compliance with all federal,
state and applicable securities laws.
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF MANATEE. All obligations
of Manatee under this Agreement are subject to the fulfillment, of each of the
following conditions:
(a) The representations and warranties of the Emagisoft
Stockholders and Emagisoft contained in this Agreement or in any certificate or
document delivered pursuant to the provisions hereof shall be true in all
material respects at and as of the closing as though such representations and
warrantees were made at and as of such time.
(b) The Emagisoft Stockholders and Emagisoft shall have performed
and complied with, in all material respects, all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by them
prior to or at the Closing, and shall have executed and delivered all documents
required by this Agreement to be executed and delivered by them prior to or at
the Closing.
(c) On or before the Closing, the Board of Directors and the
shareholders of Emagisoft shall have authorized and approved the execution,
delivery and performance of this Agreement and consummation of the transactions
contemplated hereunder.
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(d) The Emagisoft Stockholders shall deliver a letter commonly
known as an "Investment Letter," in substantially the form attached hereto and
made a part hereof as Exhibit "C", acknowledging that the Manatee Shares are
being acquired for investment purposes.
13. COVENANTS.
(a) CONDUCT OF BUSINESS. At all times prior to the Closing, Manatee
and Emagisoft agree to conduct their respective businesses in accordance with
the ordinary, ususal and normal course of business heretofore conducted by
each, and there shall be no adverse material change in the business of Manatee
or Emagisoft from the date hereof through the Closing Date.
(b) ACCESS. At all times prior to the Closing, Manatee and
Emagisoft shall: (i) give to the other and its authorized representatives
reasonable access to all facilities and properties of Manatee or Emagisoft, as
the case may be, and to its books and records and those of its subsidiaries,
(ii) permit the other to make inspections thereof upon reasonable request, and
(iii) furnish the other with such financial and operating data and other
information with respect its business and properties and those of its
subsidiaries.
(c) EXCLUSIVITY. From the date hereof until the earlier of the
Closing or the termination of this Agreement, Manatee shall not solicit,
negotiate or enter into any agreement or arrangement with any other person or
organization with respect to or in furtherance of any merger, share exchange or
other business combination involving the issuance of capital stock of Manatee
or the sale of assets of Manatee (except in the ordinary course of business),
other than the exchange of Manatee Shares for Emagisoft Shares hereunder.
(d) PUBLICITY. From the date hereof until the Closing, Manatee and
Emagisoft shall discuss and mutually agree upon any public filing or
announcement concerning the transactions contemplated hereunder.
(e) CONFIDENTIALITY. Prior to the Closing, or at any time if the
Closing does not occur, Manatee and Emagisoft shall not disclose to any person
(other than their employees, attorneys, accountants and advisors) or use
(except in connection with the transactions contemplated hereby) all non-public
information obtained pursuant to Section 13. (b). In the event the Closing does
not occur, Manatee and Emagisoft shall return to the other, or destroy, all
information it shall have received from the other in connection with this
Agreement and the transactions contemplated hereunder, together with any
summaries thereof or extracts therefrom.
14. INDEMNIFICATION. For a period of two (2) years from the Closing,
Manatee agrees to indemnify and hold harmless the Emagisoft Stockholders and
Emagisoft, and the Emagisoft Stockholders and Emagisoft agree to indemnify and
hold harmless Manatee, against and in respect of any liability, damage or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses including attorney's fees, resulting from any material
misrepresentation made by an indemnifying party to an indemnified party, an
indemnifying party's material breach of a covenant, representation or warranty,
or an
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indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation in or omission from any certificate furnished or to
be furnished hereunder.
15. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereunder for two
(2) years from the Closing. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and not upon any investigation upon which it might have made or any
representation, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth herein.
16. DOCUMENTS AT CLOSING. At the Closing, the following documents shall
be delivered:
(a) Emagisoft and the Emagisoft Stockholders will deliver, or will
cause to be delivered, to Manatee the following:
(i) the stock certificates described in Section 6.(a) above.
(ii) a certificate executed by Emagisoft to the effect that to
the best of its knowledge and belief all representations and warranties of
Emagisoft in this Agreement are true and correct as of the Closing the same as
though originally given to Manatee on said date;
(iii) a certificate executed by the Emagisoft Stockholders to
the effect that to the best of their knowledge and belief all representations
and warranties of the Emagisoft Stockholders in this Agreement are true and
correct as of the Closing the same as though originally given to Manatee on
said date;
(iv) an Investment Letter in the form attached hereto as
Exhibit "C" executed by each of the Emagisoft Stockholders;
(v) a copy of a corporate resolution of Emagisoft authorizing
and approving the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated in this Agreement;
(vi) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of this
Agreement;
(vii) all other items, the delivery of which is a condition
precedent to the obligations of Manatee, as set forth herein; and
(b) Manatee will deliver or cause to be delivered to the Emagisoft
and the Emagisoft Stockholders:
(i) the stock certificates described in Section 6.(b) above;
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(ii) a certificate executed by Manatee, to the effect that all
representations and warranties of Manatee in this Agreement are true and
correct as of the Closing, the same as though originally given to Emagisoft and
the Emagisoft Stockholders on said date;
(iii) a copy of a corporate resolution of Manatee authorizing
and approving the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated in this Agreement;
(iv) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(v) the resignation of the sole existing officer and director
of Manatee; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of the Emagisoft Stockholders, as set forth
herein.
17. BROKER'S OR FINDER'S FEES. Manatee represents and warrants to the
Emagisoft Stockholders and Emagisoft, and the Emagisoft Stockholders and
Emagisoft represent and warrant to Manatee, that none of them, or any party
acting on their behalf, has incurred any liability, either express or implied,
to any "broker" or "finder" or similar person in connection with this Agreement
or any of the transactions contemplated hereby. Manatee on the one hand, and
the Emagisoft Stockholders and Emagisoft, jointly and severally, on the other
hand, will indemnify and hold the other harmless from any claim, loss, costs or
expense whatsoever (including reasonable fees and disbursements of counsel)
from or relating to any such express or implied liability.
18. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, after
the Closing Date, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
take title to any property transferred hereunder or otherwise to carry out the
intent and purposes of this Agreement.
(b) WAIVER. Any failure on the part of any party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
(c) TERMINATION. All obligations hereunder may be terminated at the
discretion of either Manatee's or Emagisoft's board of directors if (i) the
closing conditions specified in Sections 11 and 12 are not met by October 29,
1999, unless extended, or (ii) any of the representations and warranties made
herein have been materially breached.
(d) AMENDMENT. This agreement may be amended only in writing as
agreed to by all the parties hereto.
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(e) NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in person, or
sent by telex or facsimile (with receipt confirmed), or sent by prepaid first
class registered or certified mail, return receipt requested, as follows:
If to Manatee: 0000 X.X. 000xx Xxxxxx
Xxxxx 0
Xxxxx Xxxxx Xxxxx, XX 00000
Facsimile No: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, President
With a copy to: Xxxxxx Xxxxxxx Xxxxxxx
& Xxxxxxxx
000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000-0000
Facsimile No: (000) 000-0000
Attn: Xxx Xxxxxxxx, Esq.
If to Emagisoft 000 Xxxxxxx Xxx.
and the Emagisoft Xxxxxx Xxxxx
Xxxxxxxxxxxx: Xx. Xxxxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attn: Xxxx Xxxxx, President
With a copy to: Xxxxx Xxxxx, Esq.
0000 Xxxxx Xxxxx Xx., #000
Xxxxx, XX 00000
Facsimile No: (000) 000-0000
(f) HEADINGS. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed upon
or understood with respect to the subject matter hereof. There are no oral
promises, conditions, representations,
13
understandings, interpretations or terms of any kind as conditions or
inducements to the execution hereof.
(j) TIME. Time is of the essence.
(k) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(l) RESPONSIBILITY AND COSTS. All fees, expenses and out-of-pocket
costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred by the parties hereto
shall be borne solely and entirely by the party that has incurred such costs
and expenses unless such party has agreed otherwise with any such person.
14
IN WITNESS WHEREOF, the parties have executed this Share Exchange
Agreement as of the day and year first above written.
WITNESSES: MANATEE-AMERICAN
FINANCIAL CORP.,
a Florida corporation
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx, President
EMAGISOFT CORPORATION,
a Florida corporation
By: /s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx, President
15
EXHIBIT "A"
EMAGISOFT CORPORATION
NAME ADDRESS NUMBER OF SHARES
---- ------- ----------------
The Betterment Trust 00000 Xxxxxxxxx Xxxxxxxxx 5,552,260
Xxxx X. Xxxxx, Trustee Xxx. 000
Xx. Xxxxxxxxxx, XX 00000
Xxxxx Xxxxx 0000 Xxxxxxx Xxxx 00,000
Xxxxxx, XX 00000
Xxxxxxx X. Xxxx, XX 00000 Xxxxxxxxxx Xxxxxxxxx 000,000
Xxxxx, XX 00000
Xxxxx X. Xxxxxxxxx 0000 00xx Xxxxxx Xxxxx 000,000
Xx. Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 0000 Xxxx Xxxxxx 000,000
Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx 0 Xxxxx Xxxxxx 000,000
Xxxxxxx, XX 00000
Xxx Xxxxxxxxxxx 000 Xxxx Xxxxxx 00,000
Xxxxxxxx, XX 00000
Xxxxx Xxxxxx 00000 Xxxxxxxxxx Xxxxx 000,000
Xxxxx, XX 00000
Xxxxx Xxxxx Xxxxx 00000 Xxxxxxxxx Xxxxxxxxx 25,000
Xxx. 000
Xx. Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx 0000 Xxxxxxx Xxxxxx 10,000
Xxxxx, XX 00000
Xxxxxx and Xxxxx Xxxx Xxxxx Xx #0, Xxx 000 174,230
JTWROS Xxxx, XX 00000
Xxxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxxx 10,000
Xxxxxxxx, XX 00000
16
NAME ADDRESS NUMBER OF SHARES
---- ------- ----------------
Xxxxxxx Xxx Xxxxx X.X. Xxx 000 10,000
Xxxxxxxxxxxx, XX 00000
Xxxxxx X. Xxxx 000 Xxxxxxxxx Xxxx 00,000
Xxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxx, MD 0000 Xxxxxxxxxxx Xxxxx 10,000
Xxxxxxxx, XX 00000
Xxxx Xxxxxx 0000 Xxx Xxxxx Xxxxx 0,000
Xxx. 000
Xxxxx, XX 00000
Xxxxxxxxx X. Xxxx 000 Xxxxxxxx Xxxxx 10,000
Xxxxxxxxx Xxxxxxx, XX 00000
Lighthouse Holdings, Inc. X.X. Xxx 00 150,000
Xxxxxxx Been, Director Caribbean Place
Leeward Highway
Providenciales, Turks &
Caicos Islands
Xxxxx XxXxxxxxx 00000 0xx Xxxxxx North 25,000
Apt. 0000
Xx. Xxxxxxxxxx, XX
Xxxxx Xxxxxx 396 Coffee Pot Riviera N.E. 25,000
Xx. Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxx Profit 396 Coffee Pot Riviera N.E. 15,000
Sharing Xxxx & Xxxxx Xx. Xxxxxxxxxx, XX 00000
Xxxxx Xxxx 000 X. Xxxxxxx Xxxxxx 00,000
Xxxxxx Xxxx, XX 00000
Xxxxx X. Xxxxxx X/X 00000 Xxxxxx Xxxx 10,000
Xxxxxxxxx Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
UGMA/FL
Xxxxx and Xxxxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxxx 000,000
XXXXXX Xxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxx, Inc. X.X. Xxx 00000 100,000
Xxxxxxxxxx, XX 00000
17
NAME ADDRESS NUMBER OF SHARES
---- ------- ----------------
Xxxxxx-Xxxx Investment X.X. Xxx 00000 377,680
Trust Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxx,
Trustee
Xxxxxx X. Xxxx 000 Xxxxxxxx Xxxxxxx 199,040
Xxxx 000
Xx. Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxx 0000 Xxxxxxxxxxx Xxxxx 000,000
Xxxxxxxx, XX 00000
Xxxxx XxxXxx 0000 Xxxxxx Xxx Xxxx X.X. 318,460
Xx. Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx, Xx. 0000 Xxxxx Xxxxx Xxxxxx 00,000
Xxxxxxxxx, XX 00000
TOTAL 10,000,000
18
EXHIBIT "B"
OPTIONS TO ACQUIRE CLASS A VOTING COMMON STOCK
OF EMAGISOFT CORPORATION
CURRENT PERFORMANCE LONGEVITY
HOLDER OWNERSHIP(1) OPTIONS(2) OPTIONS(3)
------ ------------ ----------- ----------
Xxxx Xxxxx 100,000 1,000,000 100,000
Xxxxx XxxXxx 50,000 500,000 50,000
Xxxxx Xxxxxxxxxx 50,000 500,000 50,000
Xxxxxxx Xxxx, XX 50,000 500,000 50,000
Xxxxx Xxxxxxxx 50,000 500,000 50,000
Xxxxx Xxxxxx -0- 500,000 50,000
------- --------- -------
TOTAL 300,000 3,500,000 350,000
----------
1 Represents the number of options granted at the time of execution of
employment agreement. The options are exercisable at a price of $1.50 per
share.
2 Represents the maximum number of options that can be granted during
employment in the event Emagisoft attains certain specified annualized gross
revenues. The options are exercisable at a price of $1.75 per share.
3 Represents the number of options to be granted per each year of employment.
The options are exercisable at a price of $2.00 per share.
19
EXHIBIT "C"
INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF MANATEE-AMERICAN FINANCIAL CORP.
The undersigned hereby represents to Manatee-American Financial Corp.
(the "Corporation") that (1) the shares of the Corporation's commons stock (the
"Securities") which are being acquired by the undersigned are being acquired
for his own account and for investment and not with a view to the public resale
or distribution thereof; (2) the undersigned will not sell, transfer or
otherwise dispose of the securities except in compliance with the Securities
Act of 1933, as amended (the "Act"); and (3) the undersigned is aware that the
Securities are "restricted securities" as that term is defined in Rule 144 or
the General Rules and Regulations under the Act.
The undersigned hereby agrees and acknowledges that he will not sell
the Securities outside of the United States in any manner which will allow the
Securities to become nonrestricted except upon registration in the United
States.
The undersigned further acknowledges that he or she has had an
opportunity to ask questions of and receive answers from duly designated
representatives of the Corporation concerning the terms and conditions pursuant
to which the Securities are being acquired. The undersigned acknowledges that
he has been afforded an opportunity to examine such documents and other
information which he or she has requested for the purpose of verifying the
information set forth in said documents.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
Any and all certificates representing the Securities, and any and all
Securities issued in replacement thereof or in exchange therefore, shall bear
the following legend, which the undersigned has read and understands:
The Securities represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act") and are
"restricted securities" as that term is defined in Rule 144 under the
Act. The Securities may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement
under the Act or pursuant to an exemption from registration under the
Act, the availability of which is to be established to the
satisfaction of the Corporation.
20
The undersigned further agrees that the Corporation shall have the
right to issue stop-transfer instructions to its transfer agent and
acknowledges that the Corporation has informed the undersigned of its intention
to issue such instructions.
Very truly yours,
____________________________
Date: ________________, 1999
