EXHIBIT 10.15
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement"), entered into this 29
day of October, 2003, by and among Reporting Public Company, Inc., a corporation
organized pursuant to the laws of the State of Nevada ("Elgrande"); Private
Company, Inc., a corporation organized pursuant to the laws of the State of
Florida ("Biscayne"); and the persons listed in Schedule A (the "Biscayne
Stockholders").
W I T N E S S E T H :
WHEREAS, the Biscayne Stockholders are the owners of all of the issued
and outstanding shares of capital stock of Biscayne, consisting solely of shares
of Common Stock, Par Value $0.001 per share (the "Biscayne Shares" or the
"Biscayne Common Stock");
WHEREAS, each of the Biscayne Stockholders is the owner of that number
of Biscayne Shares as is set forth opposite his name on Schedule A attached
hereto;
WHEREAS, Elgrande wishes to acquire all the Biscayne Common Stock by
issuing shares of Common Stock, Par Value $0.001 per share, of Elgrande (the
"Elgrande Shares" or the "Elgrande Common Stock") to the Biscayne Stockholders
in exchange for the Biscayne Shares to be conveyed to Elgrande by the Biscayne
Stockholders; and
WHEREAS, the Biscayne Stockholders wish to convey to Elgrande the
Biscayne Shares held by them in exchange for Elgrande Shares to be issued to
them by Elgrande.
N O W T H E R E F O R E ,
In consideration of the representations, warranties, covenants, and
agreements herein contained, which are given by each Party to the other Parties
in order to induce them to enter into this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties hereto, each intending to be legally bound hereby,
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
The following terms shall have the following meanings for the purposes of the
Agreement:
"Affiliate" means, with respect to any specified Person,
(a) any other Person which, directly or indirectly, owns or
controls, is under common ownership or control with, or is
owned or controlled by, such specified Person;
(b) any other Person which is a director, officer or partner
or is, directly or indirectly, the beneficial owner of 10
percent or more of any class of equity securities of the
specified Person or a Person described in clause (a) of this
paragraph;
(c) another Person of which the specified Person is a
director, officer or partner or is, directly or indirectly,
the beneficial owner of 10 percent or more of any class of
equity securities; or
(d) any relative or spouse of the specified Person or any of
the foregoing Persons.
"Business Day" means any day of the year other than
(a) any Saturday or Sunday, or
(b) any day which is a Legal Holiday as declared to be such by
federal law.
"Confidential Information" means all confidential information
concerning a Party or its Affiliates that
(a) is not and has not become ascertainable or obtainable from
public or published information,
(b) is not received from a third party or is received from a
third party pursuant to the authorization of the Party in
question, or
(c) was not in Party's possession prior to disclosure thereof
to another Party to this Agreement in connection with the
transactions contemplated herein.
"Closing" means the consummation(s) of the transactions contemplated
herein.
"Closing Date" means the date on which the Closing occurs.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Contract" means any contract, lease, commitment, understanding, sales
order, purchase order, agreement, indenture, mortgage, note, bond,
right, warrant, instrument, plan, permit or license, whether written or
oral.
"Existing Borrowing" means all borrowing from lending institutions,
vendors or agencies of federal, state or local governments or their
political subdivisions.
"Financial Statements of Biscayne" means, and includes, all of the
following:
(a) the un-audited financial statements of Biscayne as at
October 2, 2003, (including all schedules and notes thereto),
consisting of the balance sheet at such date and the related
statements of income and expenses, retained earnings, changes
in financial position and cash flows as at the end of the
twelve-month period then ended, which shall be prepared in
accordance with GAAP;
(b) the Latest Financial Statements of Biscayne; and, in
addition
(b) any other financial statements issued by Biscayne.
"Financial Statements of Elgrande" means, and includes, all of the
following:
(a) the audited financial statements of Elgrande as at May 31,
2003, and contained in Elgrande's Form 10-K as filed with the
SEC on August 29, 2003;
(b) the Latest Financial Statement of Elgrande; and, in
addition
(c) any other financial statements issued by Elgrande.
"Latest Financial Statement of Biscayne" means the un-audited financial
statements of Biscayne as at October 2, 2003, (including all schedules
and notes thereto), consisting of the balance sheet at such date and
the related statements of income and expenses, retained earnings,
changes in financial position and cash flows for the period then ended,
which shall be prepared in accordance with GAAP.
"Latest Financial Statement of Elgrande" means the un-audited financial
statements of Elgrande as at May 31, 2003, and contained in Elgrande's
Form 10-Q as filed with the SEC on August 29, 2003
"Latest Biscayne Financial Statement Date" means the date of a Latest
Financial Statement of Biscayne.
"Latest Elgrande Financial Statement Date" means the date of a Latest
Financial Statement of Elgrande.
"GAAP" means United States generally accepted accounting principles at
the time in effect.
"Governmental Authority" means the government of the United States or
any foreign country or any state or political subdivision thereof and
any entity, body or authority exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
"Hazardous Material" means any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within the meaning
of any applicable Law (including consent decrees and administrative
orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or
material, all as now or at any time hereafter in effect.
"Latest Financial Statement Date" means the date of a Latest Financial
Statement.
"Law" or "Laws" means any law, statute, regulation, ordinance, rule,
order, decree, judgment, consent decree, settlement agreement or
governmental requirement enacted, promulgated, entered into, agreed or
imposed by any Governmental Authority.
"Lien" means any mortgage, lien, charge, restriction, pledge, security
interest, option, lease or sublease, claim, right of any third party,
easement, encroachment or encumbrance.
"Loss" or "Losses" means any and all liabilities, losses, costs,
claims, damages (including consequential damages), penalties, expenses
(including attorneys' fees and the expenses and costs of investigation
and litigation), and including liabilities for taxes that have become
due and payable or which have accrued with respect to a Party that have
not been paid prior to the Closing Date or which, with respect to a
corporate Party, have not been reserved on said corporate Party's
Financial Statements. (Any Taxes attributable to the operations of a
corporate Party payable as a result of an audit of any Tax Return shall
be deemed to have accrued in the period to which such Taxes are
attributable.)
In the event any of the foregoing are indemnifiable hereunder, the
terms "Loss" and "Losses" shall also include any and all attorneys'
fees and
expenses and costs of investigation and litigation incurred by the
Indemnified Person in enforcing such indemnity.
"Material Adverse Effect" means with respect to any specified Person, a
fact, event or circumstance which has had or could reasonably be
expected to have a material adverse effect on the assets (including
intangible assets), business, liabilities, operations or conditions,
financial or otherwise, of such Person taken as a whole; provided,
however, that, with respect to Biscayne or to Elgrande, none of the
following, either individually or in the aggregate, shall be deemed to
constitute a Material Adverse Effect:
(a) any adverse event, change or effect that is primarily
caused by conditions affecting the economy of the United
States or Canada generally; or
(b) any adverse event, change or effect that is primarily
caused by conditions generally affecting the specific industry
in which such Person is engaged.
"Person" means any individual, corporation, proprietorship, firm,
partnership, limited partnership, trust, association or other entity,
including a government or government department, agency or
instrumentality.
"Elgrande's Transfer Agent" shall mean
Pacific Stock Transfer Company
Suite 240, 000 X. Xxxx Xxxxxxx Xxxx
Xxx Xxxxx XX 00000
Attention: Xxxxxxx Xxxxxxx / Xxxxx Xxxxxxx
Voice Telephone Number: (000) 000-0000
Fax Telephone Number: (000) 000-0000
"Security" or "Securities" means any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral- trust
certificate, pre-organization certificate or subscription, transferable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas, or
other mineral rights, any put, call, straddle, option, or privilege on
any security, certificate of deposit, or group or index of securities
(including any interest therein or based on the value thereof), or any
put, call, straddle, option, or privilege entered into on a national
securities exchange relating to foreign currency, or, in general, any
interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim
certificate for, receipt for, guarantee of, or warrant or right to
subscribe to or purchase, any of the foregoing.
"SEC" or the "Commission" means the United States Securities and
Exchange Commission.
"Subsidiaries" means any Person 50.1 % or more of the voting power of
which is controlled by another Person.
"Taxes" means all income tax liability, deferred income tax liability
and other taxes, charges, fees, duties, levies or other assessments,
including income, gross receipts, net proceeds, ad valorem, turnover,
real and personal property (tangible and intangible), sales, use,
franchise, excise, value added, stamp, leasing, lease, user, transfer,
fuel, excess profits,
occupational, interest equalization, windfall profits, severance,
employee's income withholding, other withholding, unemployment and
Social Security taxes, which are imposed by any Governmental Authority,
whether or not assessed or disputed, that are payable or deferrable, by
a Person through September 30, 2003, or as to which a Person may have
any liability for taxable periods ending on or before such date,
together with all deficiencies, and any interest, penalties or
additions to tax attributable thereto.
"Tax Return" means any report, return or other information required to
be supplied to a Governmental Authority in connection with any Taxes.
ARTICLE II
CLOSING; EXCHANGE OF STOCK
Section 2.1 The Closing.
The Closing shall take place on the Closing Date at the offices of
Xxxxxxxx.xxx, Inc
0000 Xxxxxxxx Xx.
Xxxxxxxxx, XX
X0X 0X0
or at such other location as the parties may determine, on October 30, 2003, at
12 :00 P.M., local time or such other time or place as the parties hereto shall
agree to in writing.
Section 2.2 Exchange of Stock.
At the Closing, the Biscayne Stockholders shall convey the Biscayne
Shares to Elgrande by delivering to Elgrande certificates of the Biscayne
Shares, duly endorsed for transfer to Elgrande.
Simultaneously, Elgrande shall issue to the Biscayne Shareholders that
number of Elgrande Shares as is set forth opposite the names of the Biscayne
Shareholders on Schedule A. To effect such issue of the Elgrande Shares,
Elgrande shall prepare and issue an irrevocable letter of instructions dated as
of the Closing Date, addressed to Elgrande's Transfer Agent, directing and
authorizing Elgrande's Transfer Agent to issue certificates representing
Elgrande Common Stock to the Biscayne Shareholders.
Section 2.3 Closing Information.
The parties hereto, at or prior to the Closing Date, shall deliver to
each other the schedules, documents, financial statements and other information
identified or described in this Agreement (the "Closing Information"). All
actions taken and all Closing Information delivered at the Closing or prior
thereto shall be deemed taken or delivered simultaneously at the Closing and no
action shall be deemed taken, or any Closing Information deemed delivered, until
all actions have been taken and all Closing Information has been delivered.
ARTICLE III
JOINT & COLLECTIVE REPRESENTATIONS AND WARRANTIES
OF THE PARTIES
In order to induce the other Parties to enter into this Agreement, each
Party makes the following representations and warranties to the other Parties.
Section 3.1 Authority.
(a) Each Party
(i) has full power and authority to enter into, deliver and
perform this Agreement;
(ii) neither the execution, delivery, consummation or
performance of this Agreement
(iii) requires the approval or consent of, or notice to, any
third party;
(iv) violates any law, regulation or agreement to which it is
subject; or
(v) violates, conflicts with or would result in the breach or
termination of, or otherwise give any other contracting party
the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any
mortgage, lease, bond, indenture, agreement, franchise or
other instrument or obligation to which it is a party or by
which either of it may be bound.
(b) If a Party is a corporation,
(i) it is duly organized, validly existing and in good
standing under the laws of its state of incorporation;
(ii) it is duly qualified or otherwise authorized as a foreign
corporation to transact business and is in good standing under
the laws of each other jurisdiction in which such
qualification is required; and
(iii) it has full power and authority to carry on its business
as now conducted, and it is entitled to own, lease or operate
all of its properties and assets wherever located.
Section 3.2. Truth of Statements; Completeness of Documents.
(a) All documents, Schedules, Exhibits and other materials delivered or
to be delivered by or on behalf of each Party to the others in connection with
this Agreement and the transactions contemplated hereby are to the best of its
knowledge true and complete;
(b) The information furnished by or on behalf of each Party to the
others in connection with this Agreement and the transactions contemplated
hereby does not, to the best of its knowledge, contain any untrue statement of a
material fact and does not omit to state any material fact required to be stated
therein or necessary to make the statements therein not false or misleading.
(c) There is no fact known to any of the Parties which has not been
disclosed to the other Parties in writing which has, or insofar as any such
Party can foresee, which will have, a Material Adverse Effect on any of the
other Parties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE
BISCAYNE STOCKHOLDERS
In order to induce the other Parties to enter into this Agreement, the
Biscayne Stockholders make the following representations and warranties to the
other Parties.
Section 4.1 Good Title to Biscayne Shares; Delivery Thereof.
(a) The Biscayne Stockholders had, has, and will have, full and valid
title and control of the Biscayne Shares.
(b) There was, is, and will be no existing impediment or encumbrance to
the sale and transfer of such Biscayne Shares to Elgrande, and on delivery to
Elgrande of the Biscayne Shares,
(i) all of the Biscayne Shares have been, are, and will be
free and clear of all taxes, liens, encumbrances, charges or
assessments of any kind and shall not be subject to preemptive
rights, tag-along rights, cumulative voting, or similar rights
of a shareholder of Biscayne,
(ii) all of the Biscayne Shares have been, are, and will be
duly authorized, validly issued and are fully paid and
non-assessable; and
(c) There is no right, subscription, warrant, call, unsatisfied
preemptive right, option or other agreement of any kind to purchase or otherwise
receive from each Biscayne Stockholder any other Securities of Biscayne, and no
Biscayne Stockholder has any such right, option or other agreement to acquire
any other Securities of Biscayne from Biscayne or from any other person; and
(d) It shall deliver to Elgrande a true and complete copy of
I. the Articles of Incorporation of Biscayne and the By-Laws of
Biscayne, certified by the Secretary of Biscayne as being in
effect as at of the Closing Date
II. a Certificate of Good Standing from the Secretary of State of
Florida and by the Secretary of State of any other State in
which Biscayne conducts business, which Certificates shall be
dated not earlier than the date of this Agreement; and
III. the stock records of Biscayne.
Section 4.2 Sufficient Familiarity with the Affairs of Elgrande; Ability to Bear
the Risks of an Investment in Elgrande, etc.
With respect to its purchase of the Elgrande Shares, the Biscayne
Stockholder acknowledges, represents, warrants and agrees as follows:
(a) The Biscayne Stockholder has received and read carefully Elgrande's
Business Summary, dated July, 2003 (the "Memorandum"). The Biscayne Stockholder
understands that all documents, records and books pertaining to its investment
have been made available for inspection by its attorney and/or its accountant
and/or its "Purchaser Representative(s)", if any, as such term is defined in
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), and the Biscayne Stockholder. The Biscayne Stockholder and/or
his advisor(s) have had reasonable opportunity to ask questions of and receive
answers from Elgrande, or a person or persons acting on behalf of Elgrande,
concerning the Elgrande Shares, and all such questions have been answered to the
full satisfaction of the Biscayne Stockholder. No oral representations or oral
information have been made or have been furnished to the Biscayne Stockholder or
his advisor(s) in connection with the offering of the Elgrande Shares.
(b) The Biscayne Stockholder is willing and able to bear the economic
risk of an investment in the Elgrande Shares in an amount equal to the total
subscription amount. In making this statement, consideration has been given to
whether the Biscayne Stockholder could afford to hold the Elgrande Shares for an
indefinite period and whether, at this time, the Biscayne Stockholder could
afford a complete loss.
(c) The Biscayne Stockholder has funds adequate to meet his personal
needs and contingencies. The Biscayne Stockholder's commitment to investments
which are not readily marketable is not disproportionate to his net worth and
his investment in the Elgrande Shares will not cause his overall commitment to
become excessive.
(d) The Biscayne Stockholder recognizes that the Elgrande has only
recently been formed and has limited financial and operating history.
(e) The Biscayne Stockholder and/or his advisors and/or his Purchasers
Representative(s) (if applicable) have such knowledge and experience in
financial, tax and business matters to enable it and/or them to utilize the
information made available to it and/or them in connection with the purchase of
the Shares, to evaluate the merits and risks of the prospective investment and
to make an informed investment decision with respect thereto.
(f) If applicable, the Biscayne Stockholder will acknowledged to the
Elgrande in writing the name and address of any Purchaser Representative acting
on behalf of the Biscayne Stockholder in connection with evaluating the merits
and risks of this proposed investment. Each Purchaser Representative, if any,
will confirm in writing to the Biscayne Stockholder the specific details of any
and all past, present or future relationships, actual or contemplated, between
himself or his affiliates and the Elgrande or any of its affiliates and any
compensation received or to be received as a result of any such relationship.
(g) The Elgrande Shares are being purchased solely for the Biscayne
Stockholder's own account for investment purposes only and not for the account
of any other person and not for distribution, assignment or resale to others and
no other person has direct or indirect beneficial interest in such Shares.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BISCAYNE
In order to induce the other Parties to enter into this Agreement,
Biscayne makes the following representations and warranties to the other
Parties.
Section 5.1 Capitalization.
(a) The authorized capital of Biscayne consists of:
(i) the Biscayne Shares;
(ii) certain Senior Subordinated Convertible Redeemable
Debentures (the "Biscayne Debentures"), convertible, from time
to time, into authorized but un-issued shares of Biscayne
Common Stock; and of
(iii) no other Securities.
(b) All of the outstanding Securities of Biscayne have been duly
authorized, validly issued, and are fully paid and non-assessable.
(c) Other than the Subscription Agreement for the Biscayne Convertible
Debentures, there are no rights, subscriptions, warrants, calls, unsatisfied
preemptive rights, options or other agreements of any kind to purchase or
otherwise to receive from Biscayne any of the outstanding or authorized but
un-issued or treasury shares of the Securities of Biscayne, and no Securities or
obligations of any kind convertible into such Securities exist in favor of any
person, firm or corporation.
(d) Biscayne does not directly or indirectly own nor has it made any
investment in any of the capital stock of, or any other proprietary interest in,
any other person including but not limited to joint ventures and partnerships.
Section 5.2 Basic Corporate Documents.
The copies of the Articles of Incorporation of Biscayne and of the
By-Laws of Biscayne, and the stock records of Biscayne which will be delivered
by the Biscayne Stockholders at or prior to the Closing Date shall be true and
complete.
Section 5.3 Financial Statements; No Undisclosed Liabilities.
(a) The Financial Statements of Biscayne present fairly the financial
position, assets, liabilities and retained earnings of Biscayne as at the dates
thereof and the revenues, expenses, results of operations, changes in financial
position and cash flows of Biscayne for the periods covered thereby.
(b) The Financial Statements are in accordance with the books and
records of Biscayne, do not reflect any transactions which are not bona fide
transactions, and do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained therein,
in light of the circumstances in which they were made, not misleading.
(c) Except as set forth in Exhibit 5.3-Biscayne, or in the Latest
Financial Statements of Biscayne, Biscayne has no liabilities, debts, claims or
obligations, whether accrued, absolute, contingent or otherwise, whether due or
to become due, other than trade payables and accrued expenses incurred in the
ordinary course of business since the date of the Latest Financial Statements.
(d) There is no basis for the assertion against Biscayne, as at the
date of this Agreement, or as at the Closing Date, of any liability of any
nature or in any amount not fully reflected or reserved against in the Financial
Statements of Biscayne, and there is no reason for Biscayne or the Biscayne
Stockholders to believe otherwise, irrespective of whether or not they believe
the claim is valid or not.
Section 5.4 Taxes.
(a) Elgrande has filed all federal, state and local tax returns which
are required to be filed or has requested extensions thereof and has paid all
Taxes
shown on such returns and all assessments received by it to the extent that the
same have become due except as shown on the Financial Statements of Elgrande.
(b) Elgrande has not agreed nor is it required to make any adjustment
under the provisions of the Internal Revenue Code or any similar state or local
law by reason of a change in accounting method or otherwise.
(c) The total amounts set up as liabilities for current taxes in the
Financial Statements of Elgrande are sufficient to cover the payment of all
claims, whether known or unknown, with respect to all Taxes.
(d) Except as set forth in Schedule 5.4-Biscayne, there are no claims
pending against Elgrande with respect to Taxes.
(e) Neither the Federal income tax returns of Elgrande nor its state
and local returns (measured, in whole or in part, by income) have been or are
being audited.
Section 5.5 Title to Properties.
Except as set forth in Schedule 5.5-Biscayne, Biscayne owns outright
and has good and marketable title to all of its assets, including, without
limitation, all of the assets, receivables and properties reflected on the
Financial Statements of Biscayne, in each case free and clear of any lien,
security interest or other encumbrance.
Section 5.6 Personal Property.
Exhibit 5.6-Biscayne sets forth a true and complete list of all of the
tangible personal property used by Biscayne in its business having an original
acquisition cost of $1,000.00 or more.
Section 5.7 Real Property Used in Business.
(a) Exhibit 5.7-Biscayne lists all real property owned or leased by
Biscayne pursuant to which Biscayne holds, occupies or uses to conduct its
business operations (the "Biscayne Real Property").
(b) The activities carried on in all buildings, plants, facilities,
installations, fixtures and other structures or improvements included as part
of, or located on or at the Biscayne Real Property, and the buildings, plants,
facilities, installations, fixtures and other structures or improvements
themselves, are not in violation of, or in conflict with, any applicable zoning,
Environmental Law, health regulations or ordinance or any other similar Law.
(c) Except as set forth in Exhibit 5.7-Biscayne, no Hazardous Material
have been used in the construction or repair of, or any alterations or additions
to, or are otherwise located on, any portion of the Biscayne Real Property.
Section 5.8 Contracts.
(a) Exhibit 5.8-Biscayne is a complete list as of the date hereof all
material Contracts to which Biscayne is a party or by which its assets or
properties are bound or subject.
(b) Except as listed on Schedule 5.8-Biscayne,
(i) all such Contracts are valid, subsisting, in full force
and effect, and binding upon the parties (to such Contracts)
in accordance with the terms of such Contracts; and
(ii) Biscayne
(A) is in compliance with all provisions of all such
Contracts;
(B) is not in default under any such Contract; nor,
to the best of its knowledge,
(C) is any other party (to any such Contract) in
default thereunder, nor does any condition exist that
with notice or lapse of time or both would constitute
a default thereunder.
(c) Biscayne has, or shall, delivered to Elgrande true and complete
copies of all of such Contracts at or prior to the Closing.
Section 5.9 Condition and Sufficiency of Assets.
(a) Except as disclosed on Exhibit 5.9-Biscayne, all of the tangible
assets and properties of Biscayne, whether real or personal, owned or leased,
have been well maintained and are in good operating condition and repair (with
the exception of normal wear and tear), and are free from defects other than
such minor defects as do not interfere with the intended use thereof in the
conduct of normal operations or adversely affect the resale value thereof.
(b) Immediately after the Closing Date, Biscayne shall own or have a
permanent right to use all the assets, properties, rights, know-how, key
personnel, processes and ability which are required for or currently used in
connection with the operation of its business as it is presently conducted.
(c) Such assets, properties and rights were sufficient to produce the
income as shown on the Financial Statements
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF Elgrande
In order to induce the other Parties to enter into this Agreement,
Elgrande makes the following representations and warranties to the other
Parties.
Section 6.1 Reporting Company.
Elgrande is required to and does file reports with the SEC pursuant to
Section 13 (a) or 15 (d) of The Securities Exchange Act of 1934, as amended, and
Elgrande is current with respect to all reports required to be filed with the
SEC.
Section 6.2 Capitalization
(a) The authorized capital of Biscayne is as set forth in the Latest
Financial Statements of Elgrande. required to be filed by it with the SEC.
(b) All of the outstanding Securities of Elgrande have been duly
authorized, validly issued and are fully paid and non-assessable.
Section 6.3 Delivery of the Elgrande Shares.
(a) There was, is, and will be no existing impediment or encumbrance to
the sale and transfer of the Elgrande Shares to the Biscayne Stockholders, and
on delivery to the Biscayne Stockholders of the Elgrande Shares,
(i) all of the Elgrande Shares have been, are, and will be
free and clear of all taxes, liens, encumbrances, charges or
assessments of any kind and shall not be subject to preemptive
rights, tag-along rights, cumulative voting, or similar rights
of any shareholder of Elgrande, and
(ii) all of the Elgrande Shares have been, are, and will be
duly authorized, validly issued and are fully paid and
non-assessable.
Section 6.4 Due Incorporation.
The copies of the Articles of Incorporation of Elgrande and of the
By-Laws of Elgrande, and the stock records of Elgrande which will be delivered
by the Biscayne Stockholders at or prior to the Closing Date shall be true and
complete.
Section 6.5 Financial Statements; No Undisclosed Liabilities.
(a) The Financial Statements of Elgrande present fairly the financial
position, assets, liabilities and retained earnings of Elgrande as at the dates
thereof and the revenues, expenses, results of operations, changes in financial
position and cash flows of Elgrande for the periods covered thereby.
(b) The Financial Statements are in accordance with the books and
records of Elgrande, do not reflect any transactions which are not bona fide
transactions, and do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained therein,
in light of the circumstances in which they were made, not misleading.
(c) Except as set forth in Exhibit 6.4-Elgrande, or in the Latest
Financial Statements of Elgrande, Elgrande has no liabilities, debts, claims or
obligations, whether accrued, absolute, contingent or otherwise, whether due or
to become due, other than trade payables and accrued expenses incurred in the
ordinary course of business since the date of the Latest Financial Statements.
(d) There is no basis for the assertion against Elgrande, as at the
date of this Agreement, or as at the Closing Date, of any liability of any
nature or in any amount not fully reflected or reserved against in the Financial
Statements of Elgrande, and there is no reason for Elgrande to believe
otherwise, irrespective of whether or not it believes the claim is valid or not.
Section 6.6 Taxes.
(a) Elgrande has filed all federal, state and local tax returns which
are required to be filed or has requested extensions thereof and has paid all
Taxes shown on such returns and all assessments received by it to the extent
that the same have become due except as shown on the Financial Statements of
Elgrande.
(b) Elgrande has not agreed nor is it required to make any adjustment
under the provisions of the Internal Revenue Code or any similar state or local
law by reason of a change in accounting method or otherwise.
(c) The total amounts set up as liabilities for current taxes in the
Financial Statements of Elgrande are sufficient to cover the payment of all
claims, whether known or unknown, with respect to all Taxes;
(d) Except as set forth in Schedule 6.5-Elgrande, there are no claims
pending against Elgrande with respect to Taxes,
(e) Neither the Federal income tax returns of Elgrande nor its state
and local returns (measured, in whole or in part, by income) have been or are
being audited.
Section 6.7 Real Property Used in Business.
(a) Exhibit 6.6-Elgrande lists all real property owned or leased by
Elgrande pursuant to which Elgrande holds, occupies or uses to conduct its
business operations (the "Elgrande Real Property").
(b) The activities carried on in all buildings, plants, facilities,
installations, fixtures and other structures or improvements included as part
of, or located on or at the Elgrande Real Property, and the buildings, plants,
facilities, installations, fixtures and other structures or improvements
themselves, are not in violation of, or in conflict with, any applicable zoning,
Environmental Law, health regulations or ordinance or any other similar Law.
(c) Except as set forth in Exhibit 6.6-Elgrande, no Hazardous Material
have been used in the construction or repair of, or any alterations or additions
to, or are otherwise located on, any portion of the Elgrande Real Property.
Section 6.8 Contracts.
(a) All material Contracts to which Elgrande is a party or by which its
assets or properties are bound or subject are identified or described in filings
made by Elgrande with the SEC.
(b) Except as listed on Schedule 5.8-Elgrande,
(i) all such Contracts are valid, subsisting, in full force
and effect, and binding upon the parties (to such Contracts)
in accordance with the terms of such Contracts; and
(ii) Elgrande
(A) is in compliance with all provisions of all such
Contracts;
(B) is not in default under any such Contract; nor,
to the best of its knowledge,
(C) is any other party (to any such Contract) in
default thereunder, nor does any condition exist that
with notice or lapse of time or both would constitute
a default thereunder.
Section 6.9 Condition and Sufficiency of Assets.
(a) Except as disclosed on Exhibit 6.8-Elgrande, all of the tangible
assets and properties of Elgrande, whether real or personal, owned or leased,
have been well maintained and are in good operating condition and repair (with
the exception of normal wear and tear), and are free from defects other than
such minor defects as do not interfere with the intended use thereof in the
conduct of normal operations or adversely affect the resale value thereof.
(b) Immediately after the Closing Date, Elgrande shall own or have a
permanent right to use all the assets, properties, rights, know-how, key
personnel, processes and ability which are required for or currently used in
connection with the operation of its business as it is presently conducted.
(c) Such assets, properties and rights were sufficient to produce the
income as shown on the Financial Statements of Elgrande.
ARTICLE VII
ADDITIONAL COVENANTS
Section 7.1. No Material Changes or Transactions to be Made or Entered Into.
The Parties covenant and agrees that, except for transactions expressly
authorized or contemplated by this Agreement, between the date hereof and the
Closing Date, they will not, without prior written consent of the others, which
consent will not be unreasonably withheld, take or refrain from taking the
following steps or acts.
(a) In the case of Biscayne and Elgrande,
(i) effect any material change, in their respective capital
structures including outstanding debt or equity Securities,
subsequent to the date of this Agreement;
(ii) grant any lien or other encumbrance on any of its assets
or properties;
(iii) enter into Contract pursuant to which it agrees to
indemnify any party to or to; or
(iv) except in the ordinary course of business, enter into any
other material Contract or other material transaction.
(b) In the case of the Biscayne Stockholders,
(i) take any action which would impair the ability and
obligation of the Biscayne Stockholders to convey and deliver
the Biscayne Shares to Elgrande as set forth in this
Agreement.
(c) In the case of Elgrande,
(i) take any action which would impair the ability and
obligation of Elgrande to issue and deliver the Elgrande
Shares to the Biscayne Stockholders as set forth in this
Agreement.
Section 7.2. No Adverse Effects or Changes.
Except as listed on Schedule 7.2-Biscayne, since the Latest Biscayne
Financial Statement Date, and, except as listed on Schedule 7.2-Elgrande, since
the Latest Elgrande Financial Statement Date, neither Biscayne nor Elgrande has
(a) suffered any Material Adverse Effect;
(b) suffered any damage, destruction or Loss (as that term is defined
in Article I) to any of its assets or properties (whether or not
covered by insurance);
(c) incurred any obligation or entered into any Contract which requires
a payment by the Company in excess of $1,000.00 or entered into any
Contract to provide for the delivery of goods or the performance of
services, or any combination thereof, by the Company, having a value in
excess of $1,000.00;
(d) sold, transferred, conveyed, assigned, leased, encumbered or
otherwise disposed of any of its assets or properties other than in the
ordinary course of business;
(e) waived, released or canceled any claims against third parties or
debts owing to it, or any rights;
(f) made any changes in its accounting systems, policies, principles or
practices;
(h) authorized for issuance, issued, sold, delivered or agreed or
committed to issue, sell or deliver (whether through the issuance or
granting of options, warrants, convertible or exchangeable Securities,
commitments, subscriptions, rights to purchase or otherwise), any of
its Securities, or amended any of the terms of any of its Securities;
(i) split, combined, or reclassified any shares of its Securities,
declared, set aside or paid any dividend or other distribution (whether
in cash, stock or property or any combination thereof) in respect of
its Securities, or redeemed or otherwise acquired any Securities of the
Company or of any other Person;
(j) except for Existing Borrowing, made any borrowing, incurred any
debt, or assumed, guaranteed, endorsed or otherwise become liable
(whether directly, contingently or otherwise) for the obligations of
any other Person, or made any payment or repayment in respect of any
indebtedness;
(k) made any loans, advances or capital contributions to, or
investments in, any other Person;
(l) entered into, adopted, amended or terminated any bonus, profit
sharing, compensation, termination, stock option, stock appreciation
right, restricted stock, performance unit, pension, retirement,
deferred compensation, employment, severance or other employee benefit
agreements, trusts, plans, funds or other arrangements for the benefit
or welfare of any director, officer or employee, or increased in any
manner the compensation or fringe benefits of any director or officer;
(m) authorized or made any material capital expenditure;
(n) settled or compromised any federal, state, local or foreign Tax
liability, or waived or extended the statute of limitations in respect
of any such Taxes;
(o) paid any amount, performed any obligation or agreed to pay any
amount or perform any obligation, in settlement or compromise of any
suits against it or its Affiliates or any of its directors, officers,
employees, agents, or shareholders;
(p) terminated, modified, amended or otherwise altered or changed any
of the terms or provisions of any Contract, or paid any amount not
required by Law or by any Contract.
Section 7.3. Additional Information.
Prior to the Closing each Party hereto will supply to the other all
information reasonably required to enable the other Party to make such due
diligence investigation as the requesting Party deems necessary and shall make
available such persons as needed to verify or substantiate any information
supplied.
Section 7.4. Confidentiality.
Each Party hereto will treat confidentially all Confidential
Information supplied to it and will use same solely to evaluate the contemplated
transaction. No Confidential Information transmitted hereunder shall be
disclosed to any third party, other than the Party's directors, officers and
legal and accounting advisors. No Party shall disclose information concerning
this Agreement, to the public or the press, except as deemed necessary by
Elgrande with respect to disclosures it believes are required pursuant to
federal Securities laws and regulations.
Section 7.5. Expenses.
Each Party will pay its own expenses with respect to preparation of
this Agreement and documents attendant thereto.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE PARTIES; TERMINATION
Section 8.1. Conditions Precedent to the Obligations of the Biscayne
Stockholders.
The obligations of the Biscayne Stockholders under this Agreement are,
at their option, subject to the satisfaction at the Closing on the Closing Date
of the following conditions precedent:
(a) The representations and warranties of Elgrande contained in this
Agreement were true when made and shall continue to be true at all
times after the date hereof and as of the Closing on the Closing Date
with the same force and effect as though such representations and
warranties had been made at and as of the Closing on the Closing Date,
subject only to changes permitted by the provisions of this Agreement,
and, further provided, that such changes will not, together with all
other events prior to the Closing, result in there being a Material
Adverse Effect in or to the condition, financial or otherwise, and in
the results of operations of Elgrande;
(b) The irrevocable letter of instructions to the Transfer Agent
authorizing the issue of the Elgrande Shares to the Biscayne
Stockholders shall have been delivered by Elgrande to the Biscayne
Stockholders;
(c) Elgrande shall have satisfied all the conditions and performed all
the covenants and agreements on its part required by this Agreement to
be satisfied and performed and shall not be in default under any of the
provisions of this Agreement; and
(d) No litigation, proceeding, investigation or inquiry shall be
pending or threatened to set aside the authorization of this Agreement,
or to enjoin or prevent the consummation of the transactions
contemplated hereby, or to enjoin or prevent the consummation of the
transactions contemplated hereby, or involving any of the assets of
Industries, which might materially and adversely affect the business or
prospects of Elgrande.
Section 8.2. Conditions Precedent to Obligations of Elgrande.
The obligations of Elgrande under this Agreement are, at its option,
subject to the satisfaction at the Closing on the Closing Date of the following
conditions precedent:
(a) The representations and warranties of Biscayne and the Biscayne
Stockholders contained in this Agreement were true when made and shall
continue to be true at all times after the date hereof and as of the
Closing on the Closing Date with the same force and effect as though
such representations and warranties had been made at and as of the
Closing on the Closing Date, subject only to changes permitted by the
provisions of this Agreement, and, further provided, that such changes
will not, together with all other events prior to the Closing, result
in there being a Material Adverse Effect in or to the condition,
financial or otherwise, and in the results of operations of Biscayne or
the Biscayne Stockholders;
(b) Each of the Biscayne Stockholders shall have satisfied all the
conditions and performed all the covenants and agreements on their part
required by this Agreement to be satisfied and performed and shall not
be in default under any of the provisions of this Agreement;
(c) No litigation, proceeding, investigation or inquiry shall be
pending or threatened to set aside the authorization of this Agreement,
or to enjoin or prevent the consummation of the transactions
contemplated hereby, or to enjoin or prevent the consummation of the
transactions contemplated hereby, or involving any of the assets of
Industries, which might materially and adversely affect the business or
prospects of Biscayne; and
(d) The Biscayne Stockholders shall have delivered to Elgrande the
stock certificates evidencing the Biscayne Shares owned by each, each
duly endorsed in blank.
Section 8.3. Termination of Agreement.
This Agreement and the transactions contemplated hereby may be
terminated at any time prior to the Closing on the Closing Date:
(a) By mutual consent of all the Parties;
(b) By the Biscayne Stockholders if Elgrande shall fail to or refuse to
perform or observe any covenant or agreement hereof to be performed or
observed by it on or prior to the Closing on the Closing Date or any
condition to the obligations of Elgrande hereunder shall not have been
met or satisfied prior to the Closing on the Closing Date. Failure of
the Biscayne Stockholders to exercise their right of termination
pursuant hereto, at any time or from time to time, shall not be deemed
a waiver of their right to terminate the Agreement pursuant to the
provisions of this Subparagraph (b) even if the failure or refusal to
perform or observe a covenant or agreement hereof, or the failure of
any condition to be met or satisfied, is subsequently cured prior to
the Closing on the Closing Date; or
(c) By Elgrande if the Biscayne Stockholders or Biscayne shall fail to
perform or observe any covenant or agreement hereof to be performed or
observed by them on or prior to the Closing on the Closing Date or any
condition to the obligations of Biscayne Stockholders or Biscayne
hereunder shall not have been met or satisfied prior to the Closing on
the Closing Date. Failure of Elgrande to exercise its right of
termination pursuant hereto, at any time or from time to time, shall
not be deemed a waiver of its right to terminate the Agreement pursuant
to the provisions of this Subparagraph (c), even if the failure or
refusal to perform or observe a covenant or agreement hereof, or the
failure of any condition to be met or satisfied, is subsequently cured
prior to the Closing on the Closing Date.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
In order to induce the other Parties to enter into this Agreement, each
Party states and undertakes as follows:
Section 9.1 Continuous Truth of Representations and Warranties.
The representations and warranties of the Parties contained in this
Agreement were true when made and, in addition, they shall also be true as of
the Closing on the Closing Date with the same force and effect as though they
had been made at and as of the Closing on the Closing Date.
Section 9.2. Survival of Representations and Warranties.
The representations and warranties contained in this Agreement and in
any Schedules, certificates or other documents delivered pursuant hereto shall
survive the execution and delivery hereof and the Closing for a period of three
(3) years except for representations and warranties with respect to any and all
tax matters which shall survive until any liability for such matters shall be
barred by the applicable statute of limitations.
Section 9.2. Entire Agreement.
This Agreement sets forth the entire understanding and agreement
between the Parties and supersedes and replaces any prior understanding,
agreement or statement (written or oral) of intent. No provision of this
Agreement shall be construed to confer any rights or remedies on any person
other than the Parties hereto.
Section 9.3. Indemnification by Biscayne and the Biscayne Stockholders.
For claims asserted with respect to the matters set forth below,
including tax matters, during the time periods set forth in Section 9.2,
Biscayne and the Biscayne Stockholders, jointly and severally, agree to
indemnify in respect of, and hold Elgrande harmless against, all Loses (as
defined in Article I) based upon, resulting from or otherwise in respect of, any
misrepresentation, breach of warranty, or non-fulfillment or failure to perform
any covenant or agreement on the part of the Biscayne or the Biscayne
Stockholders under this Agreement including any undisclosed liabilities in the
Financial Statements of Biscayne.
Section 9.4. Indemnification by Elgrande.
For claims asserted with respect to the matters set forth below,
including tax matters, during the time periods set forth in Section 9.1,
Elgrande agrees to indemnify in respect of, and hold Biscayne and the Biscayne
Stockholders harmless against, any and all Losses (as defined in Article I)
based upon, resulting from or otherwise in respect of any misrepresentation,
breach of warranty, or non-fulfillment or failure to perform any covenant or
agreement on the part of Elgrande under this Agreement.
Section 9.5. Notice and Opportunity to Defend.
The Party claiming indemnification hereunder (the "Indemnified Party")
shall give the other Party (the "Indemnifying Party") written notice of any
claim, event, misrepresentation, breach or occurrence giving rise to such claim
for indemnification within 60 days of its discovery of any such claim, event,
misrepresentation, breach or occurrence. Failure to give such notice within the
aforesaid time period shall release the Indemnifying Party from any liability
therefor under the provisions of Article IX. The Indemnifying Party shall have
the right at its sole cost and expense to:
(a) cure the claim, event, misrepresentation, breach, or occurrence
giving rise to the right of indemnification within 60 days following
receipt of such notice; provided, however, that if such cure is
commenced within such 60 day period and is pursued diligently and in
good faith to completion, such period shall be extended for a
reasonable sufficient period of time to enable such cure to be
completed, or
(b) defend any third party claim, other than a claim by or through any
taxing authority, alleged to give rise to the right of indemnification
with counsel satisfactory to the Indemnified Party, and the
Indemnifying Party shall be liable to the extent of all Losses. In
computing the amount of Losses for which any Party is liable under this
Agreement, there shall be deducted an amount equal to any tax savings
or benefits, insurance recoveries, benefits or off-sets to which the
Indemnified Party shall be entitled directly as a result of the Losses.
ARTICLE X
POST-CLOSING OBLIGATIONS
Section 10.1. Further Assurances.
Following the Closing, each of the Parties hereto shall each execute
and deliver such documents, and take such other action, as shall be reasonably
requested by any of the other parties hereto to carry out the transactions
contemplated by this Agreement.
Section 10.2. Publicity.
Except as permitted by Section 7.3 hereof, the Parties hereto shall not
issue or make, or cause to have issued or made, any publicity release or
announcement concerning the transactions contemplated hereby, without the
advance approval in writing of the form and substance thereof by all Parties.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Notices.
(a) Any notice, request, instruction or other document required by the
terms of this Agreement to be given to any other Party hereto shall be in
writing and shall be given either
(i) by telephonic facsimile, in which case notice shall be
presumptively deemed to have been given at the date and time
displayed on the sender's transmission confirmation receipt
showing the successful receipt thereof by the recipient;
(ii) by nationally recognized courier or overnight delivery
service in which the date of delivery is recorded by the
delivery service, in which case notice shall be presumptively
deemed to have been given at the time that records of the
delivery service indicate the writing was delivered to the
addressee;
(iii) by United States Mail sent by registered or certified
mail, postage prepaid, with return receipt requested, in which
case notice shall be presumptively deemed to have been given
at the time that records of the United States Postal Service
indicate the writing was delivered to the addressee.
(b) Notice shall be sent:
(i) If to Biscayne, to:
Biscayne Trading Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxxx, CEO
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
(ii) If to the Biscayne Stockholders, to:
Nicholas, Moore, and Associates Inc.
00000 X.X. 0xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Managing Director,
Private Equity
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
(iii) If to Elgrande, to:
Xxxxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxxxx, CEO
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxx, Esq.
Xxxxxxx & Xxxxxxxx, P.C.
One Lafayette Center, South Tower
0000 - 00xx Xxxxxx, X.X.
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
and
with a copy (which shall not constitute notice) to:
Xxx X. Xxxxxxx, Xx., Esq.
0000 Xxxxx Xxxxxxx Xxxxx
Number 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
(iv) or to such other address as a Party may have specified in
writing to the other Parties using the procedures specified
above in this Section.
Section 11.2. Assignment and Amendment.
This Agreement shall not be assignable by any Party, and shall not be
altered or otherwise amended except pursuant to a writing executed by all of the
Parties hereto.
Section 11.3. Severability.
If any provision of this Agreement, or the application of any such
provision to any person or circumstance, shall be held invalid by a court or
tribunal of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
Section 11.4. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute a
single instrument. It shall not be necessary that any counterpart be signed by
all of the Parties hereto.
Section 11.5. Variation in Pronouns.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons or entity or entities may require.
Section 11.6. Indulgences, Etc.
Neither the failure nor any delay on the part of any Party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege with respect to any occurrence be construed as
a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the Party asserted to have granted such waiver.
Section 11.7. Exhibits and Schedules.
All Exhibits and Schedules attached hereto are incorporated by
reference into, and made a part of, this Agreement.
Section 11.8. Headings.
The Article and Section headings are for convenience only; they form in
part of this Agreement and shall not affect its interpretation.
Section 11.9. Choice of Law, Venue, Arbitration, Waiver of Jury Trial.
(a) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the Province of British Columbia,
Canada, notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(b) The Parties hereby mutually waive trial by jury
IN THAT CONNECTION, EACH OF THE PARTIES WAIVES THE RIGHT TO A TRIAL BY
JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS AGREEMENT,
ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN
OR THEREIN, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR
APPROPRIATE TO EFFECT SUCH WAIVER.
(c) The Parties hereto irrevocably agree and consent that all disputes
concerning this Agreement or any claim or issue of any nature whatsoever
(whether brought by the Parties hereto) arising from or relating to this
Agreement or to the corporate steps taken to enter into it (including, without
limitation, claims for alleged fraud, breach of fiduciary duty, breach of
contract, tort, etc.) which cannot be resolved within reasonable time through
discussions between the opposing entities, shall be resolved solely and
exclusively by means of arbitration to be conducted in Vancouver, British
Columbia, which arbitration will proceed in accordance with the rules of the
Arbitration then in force in Vancouver, British Columbia for resolution of
commercial disputes.
In addition, the Parties waive, to the maximum extent permitted by law,
any objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such forum.
(d) The Arbitrators themselves shall have the right to determine and to
arbitrate the threshold issue of arbitrability itself, the decision of the
Arbitrators shall be final, conclusive, and binding upon the opposing entities,
and a judgment upon the award may be obtained and entered in any federal or
state court of competent jurisdiction; and
(e) Attorney's Fees. Each Party involved in litigation or arbitration
shall be responsible for its own costs and expenses of any litigation or
arbitration proceeding, including its own attorney's fees (for any litigation,
arbitration, and any appeals).
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURES APPEARS ON THE FOLLOWING PAGE
SIGNATURE PAGE
In Witness Whereof, the undersigned Parties have executed this
Agreement as of the date first set forth above.
ELGRANDE:
Reporting Public Company, Inc
By: /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx, CEO
BISCAYNE:
Biscayne Trading Corporation
By: /s/ `Xxxxxxxxxxx Xxxxxxxx
Xxxxxxxxxxx Xxxxxxxx, CEO
THE BISCAYNE STOCKHOLDERS:
Nicholas, Moore, and Associates Inc.
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Managing Director, Private
Equity of Nicholas, Moore, and Associates
Inc.
EXHIBITS BEGIN ON THE FOLLOWING PAGE.
EXHIBIT A -LIST OF BISCAYNE STOCKHOLDERS
Number of
Number of Shares Biscayne Number of Shares
Name of of Biscayne Certificate of Elgrande
Biscayne Being Being To Be
Shareholder exchanged exchanged issued
Nicholas, Moore, 35,000 35,000 35,000
and Associates
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
AGREEMENT ENDS HERE
