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EXHIBIT 10.1
STOCK EXCHANGE AGREEMENT
Agreement dated as of May 18, 2000 between Future Projects VII Corp., a Florida
corporation ("Future Projects") and Berten USA Inc., a Nevada corporation
("Berten").
The parties agree as follows:
1. THE ACQUISITION.
1.1 Purchase and Sale Subject to the Terms and Conditions of this
Agreement. At the Closing to be held as provided in Section 2, the
Future Projects shall sell 29,000,000 shares of common stock of Future
Projects, representing 62.79% of the fully-diluted outstanding common
stock of Future Projects (the "Future Projects Shares") to the
shareholders of Berten, and the shareholders of Berten shall purchase
the Future Projects Shares from Future Projects, free and clear of all
Encumbrances other than restrictions imposed by Federal and State
securities laws. The Future Projects Shares shall be issued and
delivered to the Shareholders of Berten as set forth in Exhibit "A"
hereto.
1.2 Purchase Price. Shareholders of Berten will exchange 29,000,000 shares
of its common stock, representing 62% of the issued and outstanding
common stock of Berten (the "Berten Shares") for the Future Projects
Shares.
2. THE CLOSING.
2.1 Place and Time. The closing of the sale and exchange of the Future
Projects Shares for the Berten Shares (the "Closing") shall take place
at Xxxxxx Law Group, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, XX 00000 no later than the close of business (Orange County
California time) on May 18, 2000 or at such other place, date and time
as the parties may agree in writing.
2.2 Deliveries by Berten. At the Closing, the shareholders of Berten shall
deliver the following to Future Projects:
a. Certificates representing the Berten Shares, duly endorsed for
transfer to Future Projects and accompanied by any applicable
stock transfer tax stamps; Berten shall immediately change those
Certificates for, and to deliver to Future Projects at the
Closing, a certificate representing the Berten Shares registered
in the name of Future Projects.
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b. The documents contemplated by Section 3.
c. All other documents, instruments and writings required by this
Agreement to be delivered by Berten at the Closing and any other
documents or records relating to Berten's business reasonably
requested by Future Projects in connection with this Agreement.
2.3 Deliveries by Future Projects. At the Closing, Future Projects shall
deliver the following to Berten and/or the shareholders of Berten:
a. The Future Projects Shares for further delivery to the Berten
shareholders as contemplated by section 1.
b. The documents contemplated by Section 4.
c. All other documents, instruments and writings required by this
Agreement to be delivered by Future Projects at the Closing.
3. CONDITIONS TO FUTURE PROJECTS'S OBLIGATIONS.
The obligations of Future Projects to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Future Projects:
3.1 No Injunction. There shall not be in effect any injunction, order or
decree of a court of competent jurisdiction that prevents the
consummation of the transactions contemplated by this Agreement, that
prohibits Future Projects's acquisition of the Berten Shares or the
Future Projects Shares by shareholders of Berten or that will require
any divestiture as a result of Future Projects's acquisition of the
Berten Shares or that will require all or any part of the business of
Future Projects to be held separate and no litigation or proceedings
seeking the issuance of such an injunction, order or decree or seeking
to impose substantial penalties on Future Projects or Berten if this
Agreement is consummated shall be pending.
3.2 Representations, Warranties and Agreements. (a) The representations
and warranties of Berten set forth in this Agreement shall be true and
complete in all material respects as of the Closing Date as though
made at such time, and (b) Berten shall have performed and complied in
all material respects with the agreements contained in this Agreement
required to be performed and complied with by it at or prior to the
Closing.
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3.3 Regulatory Approvals. All licenses, authorizations, consents, orders
and regulatory approvals of Governmental Bodies necessary for the
consummation of Future Projects's acquisition of the Berten Shares
shall have been obtained and shall be in full force and effect.
4. CONDITIONS TO BERTEN'S OBLIGATIONS.
The obligations of Berten to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Berten:
4.1 No Injunction. There shall not be in effect any injunction, order or
decree of a court of competent jurisdiction that prevents the
consummation of the transactions contemplated by this Agreement, that
prohibits Future Projects' acquisition of the Berten Shares or
shareholders of Berten's acquisition of the Future Projects Shares or
that will require divestiture as a result of Future Projects's
acquisition of the Berten Shares or shareholders of Berten's
acquisition of the Future Projects Shares or that will require all or
any part of the business of Future Projects or Berten to be held
separate and no litigation or proceedings seeking the issuance of such
an injunction, order or decree or seeking to impose substantial
penalties on Future Projects or Berten if this Agreement is
consummated shall be pending.
4.2 Representations, Warranties and Agreements. (a) The representatives
and warranties of Future Projects and the Future Projects Shareholder
set forth in this Agreement shall be true and complete in all material
respects as of the Closing Date as though made at such time, and (b)
Future Projects shall have performed and complied in all material
respects with the agreements contained in this Agreement required to
be performed and complied with by it at or prior to the Closing.
4.3 Regulatory Approvals. All licenses, authorizations, consents, orders
and regulatory approvals of Governmental Bodies necessary for the
consummation of Future Projects's acquisition of the Berten Shares and
shareholders of Berten's acquisition of the Future Projects Share
shall have been obtained and shall be in full force and effect.
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4.4 Reverse Stock Split. Future Projects shall have completed a one for
five reverse stock split of its common stock prior to the Closing,
resulting in an aggregate of 1,000,000 shares issued and outstanding
as of the Closing Date (not including the Private Placement Shares and
the Legal Shares).
4.5 Stock Issuance. Future Projects shall have completed and closed upon
the issuance of up to 2,000,000 shares of common stock in a private
placement transaction (the "Private Placement Shares") and shall have
issued no more than 65,000 shares to counsel for Future Projects (the
"Legal Shares").
4.6 Name Change. The combined entities shall have agreed to change the
name of the combined entities to Berten USA Holdings Corp.
5. REPRESENTATIONS AND WARRANTIES OF BERTEN.
Berten represents and warrants to Future Projects that, to the Knowledge of
Berten, and except as set forth in the Berten Disclosure Letter:
5.1 Organization of Berten; Authorization. Berten is a corporation duly
organized, validly existing and in good standing under the laws of
Nevada with full corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action of Berten and this
Agreement constitutes a valid and binding obligation of Berten;
enforceable against it in accordance with its terms.
5.2 Capitalization. As of the Closing Date, all of the issued and
outstanding shares of common stock of Berten are validly issued, fully
paid and non-assessable. Except with respect to an obligation of
Future Projects to issue the Legal Shares and the Private Placement
Shares, there will not be outstanding any warrants, options or other
agreements on the part of Berten obligating Berten to issue and
additional shares of common or preferred stock or any of its
securities of any kind. Except as otherwise set forth herein, Berten
will not issue any shares of capital stock from the date of this
Agreement through the Closing Date.
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5.3 No Conflict as to Berten. Neither the execution and delivery of this
Agreement nor the consummation of the sale of the Berten Shares to Future
Projects will (a) violate any provision of the certificate of incorporation
or by-laws of Berten or (b) violate, be in conflict with, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under any agreement to which Berten is a party or (c)
violate any statute or law or any judgment, decree, order, regulation or
rule of any court or other Governmental body applicable to Berten.
5.4 Ownership of Berten Shares. The delivery of certificates to Future
Projects provided in Section 2.2 will result in Future Projects's
immediate acquisition of record and beneficial ownership of the Berten
Shares, free and clear of all Encumbrances subject to applicable State and
Federal securities laws. Except as set forth in Section 5.2, there are no
outstanding options, rights, conversion rights, agreements or commitments
of any kind relating to the issuance, sale or transfer of any Equity
Securities or other securities of Berten.
5.5 No Conflict as to Berten and Subsidiaries. Neither the execution and
delivery of this Agreement nor the consummation of the sale of the Berten
Shares to Future Projects will (a) violate any provision of the
certificate of incorporation or by-laws (or other governing instrument) of
Berten or any of its Subsidiaries or (b) violate, or be in conflict with,
or constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination
of or accelerate the performance required by, or excuse performance by
any Person of any of its obligations under, or cause the acceleration of
the maturity of any debt or obligation pursuant to, or result in the
creation or imposition of any Encumbrance upon any property or assets of
Berten or any of its Subsidiaries under, any material agreement or
commitment to which Berten or any of its Subsidiaries is a party or by
which any of their respective property or assets is bound, or to which any
of the property or assets of Berten or any of its Subsidiaries is subject,
or (c) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or other Governmental Body applicable to
Berten or any of its Subsidiaries except, in the case of violations,
conflicts, defaults, terminations, accelerations or Encumbrances described
in clause (b) of this Section 5.5, for such matters which are not likely
to have a material adverse effect on the business or financial condition
of Berten and its Subsidiaries, taken as a whole.
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5.6 Consents and Approvals of Governmental Authorities. Except with respect to
applicable State and Federal securities laws, no consent, approval or
authorization of, or declaration, filing or registration with, any
Governmental Body is required to be made or obtained by Berten or Future
Projects or any of its Subsidiaries in connection with the execution,
delivery and performance of this Agreement by Berten or the consummation of
the sale of the Berten Shares to Future Projects.
5.7 Other Consents. No consent of any Person is required to be obtained by
Berten or Future Projects to the execution, delivery and performance of
this Agreement or the consummation of the sale of the Berten Shares to
Future Projects, including, but not limited to, consents from parties to
leases or other agreements or commitments, except for any consent which the
failure to obtain would not be likely to have a material adverse effect on
the business and financial condition of Berten or Future Projects.
5.8 Financial Statements. Berten has delivered to Future Projects consolidated
balance sheets of Berten and its Subsidiaries as at December 31, 1999, and
statements of income and changes in financial position for the period from
inception to the period then ended, together with the report thereon of
Berten's independent accountant (the "Berten Financial Statements"). Such
Berten Financial Statements are internally prepared and unaudited but
fairly present the consolidated financial condition and results of
operations of Berten and its Subsidiaries as at the respective dates
thereof and for the periods therein referred to, all in accordance with
generally accepted United States accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto.
5.9 Title to Properties. Either Berten or one of its Subsidiaries owns all the
material properties and assets that they purport to own (real, personal and
mixed, tangible and intangible), including, without limitation, all the
material properties and assets reflected in the Berten Financial Statements
(except for property sold since the date of the Berten Financial Statements
in the ordinary course of business or leased under capitalized leases), and
all the material properties and assets purchased or otherwise acquired by
Berten or any of its Subsidiaries since the date of the Berten Financial
Statements. All properties and assets reflected in the Berten Financial
Statements are free and clear of all material Encumbrances and are not, in
the case of real property, subject to any material rights of way, building
use restrictions, exceptions, variances, reservations or limitations of any
nature whatsoever except, with respect to all such properties and assets,
(a) mortgages or security interests
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shown on the Berten Financial Statements as securing specified liabilities
or obligations, with respect to which no default (or event which, with
notice or lapse of time or both, would constitute a default) exists, and
all of which are listed in the Berten Disclosure Letter, (b) mortgages or
security interests incurred in connection with the purchase of property or
assets after the date of the Berten Financial Statements (such mortgages
and security interests being limited to the property or assets so
acquired), with respect to which no default (or event which, with notice
or lapse of time or both, would constitute a default) exists, (c) as to
real property, (i) imperfections of title, if any, none of which
materially detracts from the value or impairs the use of the property
subject thereto, or impairs the operations of Berten or any of its
Subsidiaries and (ii) zoning laws that do not impair the present or
anticipated use of the property subject thereto, and (d) liens for current
taxes not yet due. The properties and assets of Berten and its
Subsidiaries include all rights, properties and other assets necessary to
permit Berten and its Subsidiaries to conduct Berten's business in all
material respects in the same manner as it is conducted on the date of
this Agreement.
5.10 Buildings, Plants and Equipment. The buildings, plants, structures and
material items of equipment and other personal property owned or leased by
Berten or its Subsidiaries are, in all respects material to the business
or financial condition of Berten and its Subsidiaries, taken as a whole,
in good operating condition and repair (ordinary wear and tear excepted)
and are adequate in all such respects for the purposes for which they are
being used. Berten has not received notification that it or any of its
Subsidiaries is in violation of any applicable building, zoning,
anti-pollution, health, safety or other law, ordinance or regulation in
respect of its buildings, plants or structures or their operations, which
violation is likely to have a material adverse effect on the business or
financial condition of Berten and its Subsidiaries, taken as a whole or
which would require a payment by Berten or Future Projects or any of their
subsidiaries in excess of $2,000 in the aggregate, and which has not been
cured.
5.11 No Condemnation or Expropriation. Neither the whole nor any portion of the
property or leaseholds owned or held by Berten or any of its Subsidiaries
is subject to any governmental decree or order to be sold or is being
condemned, expropriated or otherwise taken by any Governmental Body or
other Person with or without payment of compensation therefor, which
action is likely to have a material adverse effect on the business or
financial condition of Future Projects and its Subsidiaries, taken as a
whole.
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5.12 Litigation. There is no action, suit, inquiry, proceeding or investigation
by or before any court or Governmental Body pending or threatened in
writing against or involving Berten or any of its Subsidiaries which is
likely to have a material adverse effect on the business or financial
condition of Berten, Future Projects and any of their Subsidiaries, taken
as a whole, or which would require a payment by Berten or its Subsidiaries
in excess of $2,000 in the aggregate or which questions or challenges the
validity of this Agreement. Neither Berten nor any of its Subsidiaries is
subject to any judgment, order or decree that is likely to have a material
adverse effect on the business or financial condition of Berten, Future
Projects or any of their Subsidiaries, taken as a whole, or which would
require a payment by Berten or its subsidiaries in excess of $2,000 in the
aggregate.
5.13 Absence of Certain Changes. Since the date of the Berten Financial
Statements, neither Berten nor any of its Subsidiaries has:
a. suffered the damage or destruction of any of its properties or assets
(whether or not covered by insurance) which is materially adverse to
the business or financial condition of Berten and its Subsidiaries,
taken as a whole, or made any disposition of any of its material
properties or assets other than in the ordinary course of business;
b. made any change or amendment in its certificate of incorporation of
by-laws, or other governing instruments;
c. issued or sold any Equity Securities or other securities, acquired,
directly or indirectly, by redemption or otherwise, any such Equity
Securities, reclassified, split-up or otherwise changed any such
Equity Security, or granted or entered into any options, warrants,
calls or commitments of any kind with respect thereto;
d. organized any new Subsidiary or acquired any Equity Securities of any
Person or any equity or ownership interest in any business;
e. borrowed any funds or incurred, or assumed or become subject to,
whether directly or by way of guarantee or otherwise, any obligation
or liability with respect to any such indebtedness for borrowed money;
f. paid, discharged or satisfied any material claim, liability or
obligation (absolute, accrued, contingent or otherwise), other than
in the ordinary course of business;
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g. prepaid any material obligation having a maturity of more than 90 days
from the date such obligation was issue or incurred;
h. canceled any material debts or waived any material claims or rights,
except in the ordinary course of business;
i. disposed of or permitted to lapse any rights to the use of any
material patent or registered trademark or copyright or other
intellectual property owned or used by it;
j. granted any general increase in the compensation of officers or
employees (including any such increase pursuant to any employee
benefit plan);
k. purchased or entered into any contract or commitment to purchase any
material quantity of raw materials or supplies, or sold or entered
into any contract or commitment to sell any material quantity of
property or assets, except (i) normal contracts or commitments for the
purchase of, and normal purchases of, raw materials or supplies, made
in the ordinary course business, (ii) normal contracts or commitments
for the sale of, and normal sales of, inventory in the ordinary course
of business, and (iii) other contracts, commitments, purchases or
sales in the ordinary course of business;
l. made any capital expenditures or additions to property, plant or
equipment or acquired any other property or assets (other than raw
materials and supplies) at a cost in excess of $100,000 in the
aggregate;
m. written down or been required to write off any notes or accounts
receivable in an aggregate amount in excess of $2,000;
n. written off or been required to write down any inventory in an
aggregate amount in excess of $2,000;
o. entered into any collective bargaining or union contract or agreement;
or
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p. other than the ordinary course of business, incurred any liability
required by generally accepted accounting principles to be
reflected on a balance sheet and material to the business or
financial condition of Berten and its subsidiaries taken as a
whole.
5.14 No Material Adverse Change. Since the date of the Berten Financial
Statements, there has not been any material adverse change in the
business or financial condition of Berten and its Subsidiaries taken as
a whole.
5.15 Contracts and Commitments. Except as set forth in Section 5.15 of the
Berten Disclosure Letter, neither Berten nor any of its Subsidiaries is
a party to any:
a. Contract or agreement (other than purchase or sales orders entered
into in the ordinary course of business) involving any liability on
the part of Berten or one of its Subsidiaries of more than $25,000
and not cancelable by Berten or the relevant Subsidiary (without
liability to Berten or such Subsidiary) within 60 days;
b. Except with respect to the lease on its business location, lease of
personal property involving annual rental payments in excess of
$25,000 and not cancelable by Berten or the relevant Subsidiary
(without liability to Berten or such Subsidiary) within 90 days;
c. Except with respect to the options referenced above, Employee
bonus, stock option or stock purchase, performance unit,
profit-sharing, pension, savings, retirement, health, deferred or
incentive compensation, insurance or other material employee
benefit plan (as defined in Section 2(3) of ERISA) or program for
any of the employees, former employees or retired employees of
Berten or any of its Subsidiaries;
d. Commitment, contract or agreement that is currently expected by the
management of Berten to result in any material loss upon completion
or performance thereof;
e. Contract, agreement or commitment that is material to the business
of Berten and its Subsidiaries, taken as a whole, with any officer,
employee, agent, consultant, advisor, salesman, sales
representative, value added reseller, distributor or dealer; or
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f. Employment agreement or other similar agreement that
contains any severance or termination pay, liabilities or
obligations.
All such contracts and agreements are in full force and effect. Neither
Berten nor any of its Subsidiaries is in breach of, in violation of or
in default under, any agreement, instrument, indenture, deed of trust,
commitment, contract or other obligation of any type to which Berten or
any of its Subsidiaries is a party or is or may be bound that relates to
the business of Berten or any of its Subsidiaries or to which any of the
assets or properties of Berten or any of its Subsidiaries is subject,
the effect of which breach, violation or default is likely to materially
and adversely affect the business or financial condition of Berten and
its Subsidiaries, taken as a whole. Future Projects has not guaranteed
or assumed and specifically does not guarantee or assume any obligations
of Berten or any of its Subsidiaries.
5.16 Labor Relations. Neither Berten nor any of its Subsidiaries is a party
to any collective bargaining agreement. Except for any matter which is
not likely to have a material adverse effect on the business or
financial condition of Berten and its Subsidiaries, taken as a whole,
(a) Berten and each of its Subsidiaries is in compliance with all
applicable laws respecting employment and employment practices, terms
and conditions of employment and wages and hours, and is not engaged
in any unfair labor practice, (b) there is no unfair labor practice
complaint against Berten or any of its Subsidiaries pending before the
National Labor Relations Board, (c) there is no labor strike, dispute,
slowdown or stoppage actually pending or threatened against Berten or
any of its Subsidiaries, (d) no representation question exists
respecting the employees of Berten or any of its Subsidiaries, (e)
neither Berten nor any of its Subsidiaries has experienced any strike,
work stoppage or other labor difficulty, and (f) no collective
bargaining agreement relating to employees of Berten or any of its
Subsidiaries is currently being negotiated.
5.17 Employee Benefit Plans. No material employee pension and welfare
benefit plans covering employees of Berten is (1) a multi-employer
plan as defined in Section 3(37) of ERISA, or (2) a defined benefit
plan as defined in Section 3(35) of ERISA, any listed individual
account pension plan is duly qualified as tax exempt under the
applicable sections of the Code, each listed benefit plan and related
funding arrangement, if any, has been maintained in all material
respects in compliance with its terms and the provisions of ERISA and
the Code.
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5.18 Compliance with Law. The operations of Berten and its Subsidiaries have
been conducted in accordance with all applicable laws and regulations of
all Governmental Bodies having jurisdiction over them, except for
violations thereof which are not likely to have a material adverse effect
on the business or financial condition of Berten and its Subsidiaries,
taken as a whole, or which would not require a payment by Berten or its
Subsidiaries in excess of $2,000 in the aggregate, or which have been
cured. Neither Berten nor any of its Subsidiaries has received any
notification of any asserted present or past failure by it to comply with
any such applicable laws or regulations. Berten and its Subsidiaries have
all material licenses, permits, orders or approvals from the Governmental
Bodies required for the conduct of their businesses, and are not in
material violation of any such licenses, permits, orders and approvals.
All such licenses, permits, orders and approvals are in full force and
effect, and no suspension or cancellation of any thereof has been
threatened.
5.19 Tax Matters.
x. Xxxxxx and each of its Subsidiaries (1) has filed all
nonconsolidated and noncombined Tax Returns and all consolidated or
combined Tax Returns that include only Berten and/or Subsidiaries
and not Seller or its other Affiliates (for the purposes of this
Section 5.19, such tax Returns shall be considered nonconsolidated
and noncombined Tax Returns) required to be filed through the date
hereof and has paid any Tax due through the date hereof with respect
to the time periods covered by such nonconsolidated and noncombined
Tax Returns and shall timely pay any such Taxes required to be paid
by it after the date hereof with respect to such Tax Returns and (2)
shall prepare and timely file all such nonconsolidated and
noncombined Tax Returns required to be filed after the date hereof
and through the Closing Date and pay all Taxes required to be paid
by it with respect to the periods covered by such Tax Returns; (B)
all such Tax Returns filed pursuant to clause (A) after the date
hereof shall, in each case, be prepared and filed in a manner
consistent in all material respects (including elections and
accounting methods and conventions) with such Tax Return most
recently filed in the relevant jurisdiction prior to the date
hereof, except as otherwise required by law or regulation. Any such
Tax Return filed or required to be filed after the date hereof shall
not reflect any new elections or the adoption of any new accounting
methods or conventions or other similar items, except to the extent
such particular reflection or adoption is required to comply with
any law or regulation.
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b. All consolidated or combined Tax Returns (except those described in
subparagraph (a) above) required to be filed by any person through the
date hereof that are required or permitted to include the income, or
reflect the activities, operations and transactions, of Berten or any of
its Subsidiaries for any taxable period have been timely filed, and the
income, activities, operations and transactions of Berten and
Subsidiaries have been properly included and reflected thereon. Berten
shall prepare and file, or cause to be prepared and filed, all such
consolidated or combined Tax Returns that are required or permitted to
include the income, or reflect the activities, operations and
transactions, of Berten or any Subsidiary, with respect to any taxable
year or the portion thereof ending on or prior to the Closing Date,
including without limitation, Berten's consolidated federal income tax
return for such taxable years. Berten either has filed or will timely
file a consolidated federal income tax return for the taxable year ended
December 31, 1999 and such return shall include and reflect the income,
activities, operations and transactions of Berten and Subsidiaries for
the taxable period then ended, and hereby expressly covenants and agrees
to file a consolidated federal income tax return, and to include and
reflect thereon the income, activities, operations and transactions of
Berten and Subsidiaries for the taxable period through the Closing Date.
All Tax Returns filed pursuant to this subparagraph (b) after the date
hereof shall, in each case, to the extent that such Tax Returns
specifically relate to Berten or any of its Subsidiaries and do not
generally relate to matters affecting other members of Berten's
consolidated group, be prepared and filed in an manner consistent in all
material respects (including elections and accounting methods and
conventions) with the Tax Return most recently filed in the relevant
jurisdictions prior to the date hereof, except as otherwise required by
law or regulation. Berten has paid or will pay all Taxes that may now or
hereafter be due with respect to the taxable periods covered by such
consolidated or combined Tax Returns.
c. Neither Berten nor any of its Subsidiaries has agreed, or is required, to
make any adjustment (x) under Section 481(a) of the Code by reason of a
change in accounting method or otherwise or (y) pursuant to any provision
of the Tax Reform Act of 1986, the Revenue Act of 1987 or the Technical
and Miscellaneous Revenue Act of 1988.
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d. Neither Berten nor any of its Subsidiaries or any predecessor or
Affiliate of the foregoing has, at any time, filed a consent
under Section 341(f)(1) of the Code, or agreed under Section
341(f)(3) of the Code, to have the provisions of Section
341(f)(2) of the Code apply to any sale of its stock.
e. There is no (nor has there been any request for an) agreement,
waiver or consent providing for an extension of time with respect
to the assessment of any Taxes attributable to Berten or its
Subsidiaries, or their assets or operations and no power of
attorney granted by Berten or any of its Subsidiaries with
respect to any Tax matter is currently in force.
f. There is no action, suit, proceeding, investigation, audit,
claim, demand, deficiency or additional assessment in progress,
pending or threatened against or with respect to any Tax
attributable to Berten, its Subsidiaries or their assets or
operations.
g. All amounts required to be withheld as of the Closing Date for
Taxes or otherwise have been withheld and paid when due to the
appropriate agency or authority.
h. No property of Berten is "tax-exempt use property" within the
meaning of Section 168(h) of the Code nor property that Berten
and/or its Subsidiaries will be required to treat as being owned
by another person pursuant to Section 168(f)(8) of the Internal
Revenue Code of 1954, as amended and in effect immediately prior
to the enactment of the Tax Reform Act of 1986.
i. There have been delivered or made available to Future Projects
true and complete copies of all income Tax Returns (or with
respect to consolidated or combined returns, the portion thereof)
and any other Tax Returns requested by Future Projects as may be
relevant to Berten, its Subsidiaries, or their assets or
operations for any and all periods ending after December 31,
1999, or for any Tax years which are subject to audit or
investigation by any taxing authority or entity.
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j. There is no contract, agreement, plan or arrangement, including but
not limited to the provisions of this Agreement, covering any employee
or former employee of Berten or its Subsidiaries that, individually or
collectively, could give rise to the payment of any amount that would
not be deductible pursuant to Section 280G or 162 of the Code.
5.20 Environmental Matters.
a. At all times prior to the date hereof, Berten and its Subsidiaries
have complied in all material respects with applicable environmental
laws, orders, regulations, rules and ordinances relating to the
Properties (as hereinafter defined), the violation of which would have
a material adverse effect on the business or financial condition of
Berten and its Subsidiaries, taken as a whole, or which would require
a payment by Berten or its Subsidiaries in excess of $2,000 in the
aggregate, and which have been duly adopted, imposed or promulgated by
any legislative, executive, administrative or judicial body or officer
of any Governmental Body.
b. The environmental licenses, permits and authorizations that are
material to the operations of Berten and its Subsidiaries, taken as a
whole, are in full force and effect.
c. Neither Berten nor any of its Subsidiaries has released or caused to
be released on or about the properties currently owned or leased by
Berten or any of its Subsidiaries (the "Properties") any (i)
pollutants, (ii) contaminants, (iii) "Hazardous Substances," as that
term is defined in Section 101(14) of the Comprehensive Environmental
Response Act, as amended or (iv) "Regulated Substances," as that term
is defined in Section 9001 of the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as amended, which would be
required to be remediated by any governmental agency with jurisdiction
over the Properties under the authority of laws, regulations and
ordinances as in effect and currently interpreted on the date hereof,
which remediation would have a material adverse effect on the business
or financial condition of Berten and its Subsidiaries, taken as a
whole.
5.21 Brokers or Finders. Berten has not employed any broker or finer or
incurred any liability for any brokerage or finder's fees or commissions or
similar payments in connection with the sale of the Berten Shares to Future
Projects.
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5.22 Absence of Certain Commercial Practices. Neither Berten nor any of its
Subsidiaries has, directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property, however
characterized, to any finder, agent, government official or other
party, in the United States or any other country, which is in any
manner related to the business or operations of Berten or its
Subsidiaries, which Berten or one of its Subsidiaries knows or has
reason to believe to have been illegal under any federal, state or
local laws of the United States or any other country having
jurisdiction; and neither Berten nor any of its Subsidiaries has
participated, directly or indirectly, in any boycotts or other similar
practices affecting any of its actual or potential customers in
violation of any applicable law or regulation.
5.23 Transactions with Directors and Officers. Except as set forth in
Section 5.23 of the Berten Disclosure Letter, Berten and its
Subsidiaries do not engage in business with any Person in which any of
Berten's directors or officers has a material equity interest. No
director or officer of Berten owns any property, asset or right which
is material to the business of Berten and its Subsidiaries, taken as a
whole.
5.24 Borrowing and Guarantees. Except as set forth in Section 5.24 of the
Berten Disclosure Letter, Berten and its Subsidiaries (a) do not have
any indebtedness for borrowed money, (b) are not lending or committed
to lend any money (except for advances to employees in the ordinary
course of business), and (c) are not guarantors or sureties with
respect to the obligations of any Person.
6. REPRESENTATIONS AND WARRANTIES OF FUTURE PROJECTS.
Future Projects represents and warrants to Berten that except as set forth in
the Future Projects Disclosure Letter:
6.1 Organization of Future Projects; Authorization. Future Projects is a
corporation duly organized, validly existing and in good standing
under the laws of Florida with full corporate power and authority to
execute and deliver this Agreement and perform its obligations
hereunder. The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporation action of
Future Projects and this Agreement constitutes a valid and binding
obligation of Future Projects and the Future Projects Shareholder,
enforceable against them in accordance with its terms.
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6.2 Capitalization. The authorized capital stock of Future Projects
consists of 50,000,000 shares of common stock, par value $.001 per
share, and no shares of preferred stock. As of the date of this
Agreement, Future Projects has 5,000,000 shares of common stock issued
and outstanding. No shares have been registered under state or federal
securities laws. As of the Closing Date, all of the issued and
outstanding shares of common stock of Future Projects are validly
issued, fully paid and non-assessable and they are not and as of the
Closing Date there will not be outstanding any other warrants, options
or other agreements on the part of Future Projects obligating Future
Projects to issue any additional shares of common or preferred stock
or any of its securities of any kind. Future Projects will not issue
any shares of capital stock from the date of this Agreement through
the Closing Date. The Common Stock of Future Projects is presently
trading on the "pink sheets".
6.3 No Conflict as to Future Projects or Berten. Neither the execution and
delivery of this Agreement nor the consummation of the sale of the
Future Projects Shares to Berten and the sale of the Berten Shares to
Future Projects will (a) violate any provision of the certificate of
incorporation or by-laws of Future Projects, or (b) violate, be in
conflict with, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under any
agreement to which Future Projects or the Future Projects Shareholder
is a party or (c) violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other Governmental Body
applicable to Future Projects or the Future Projects Shareholder.
6.4 Ownership of Future Projects Shares. The delivery of certificates to
shareholders of Berten provided in Section 2.3 will result in the
shareholders' of Berten immediate acquisition of record and beneficial
ownership of the Future Projects Shares, free and clear of all
Encumbrances other than as required by Federal and State securities
laws. There are no outstanding options, rights, conversion rights,
agreements or commitments of any kind relating to the issuance, sale
or transfer of any Equity Securities or other Securities of Future
Projects.
6.5 Consents and Approvals of Governmental Authorities. No consent,
approval or authorization of, or declaration, filing or registration
with, any Governmental Body is required to be made or obtained by
Future Projects or Berten or any of either of their Subsidiaries in
connection with the execution, delivery and performance of this
Agreement by Future Projects or the consummation of the sale of the
Future Projects Shares to Berten.
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6.6 Other Consents. No consent of any Person is required to be obtained by
Berten, Future Projects or the Future Projects Shareholder to the
execution, delivery and performance of this Agreement or the consummation
of the sale of the Future Projects Shares to the shareholders of Berten,
including, but not limited to, consents from parties to leases or other
agreements or commitments, except for any consent which the failure to
obtain would not be likely to have a material adverse effect on the
business and financial condition of Berten or Future Projects.
6.7 Financial Statements. Future Projects has delivered to Berten consolidated
balance sheets of Future Projects and its Subsidiaries as at December 31,
1998 and December 31, 1999, and statements of income and changes in
financial position for each of the years in the two-year period then
ended, together with the report thereon of Future Project's independent
accountant, as well as the financial statements of Future Projects for the
period ended March 31, 2000 (unaudited) (the "Future Projects Financial
Statements"). Such Future Projects Financial Statements and notes fairly
present the consolidated financial condition and results of operations of
Future Projects and its Subsidiaries as at the respective dates thereof
and for the periods therein referred to, all in accordance with generally
accepted United States accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto,
and shall be utilizable in any SEC filing in compliance with Rule 310 of
Regulation S-B promulgated under the Securities Act.
6.8 Title to Properties. Either Future Projects or one of its Subsidiaries
owns all the material properties and assets that they purport to own
(real, personal and mixed, tangible and intangible), including, without
limitation, all the material properties and assets reflected in the Future
Projects Financial Statements and all the material properties and assets
purchased or otherwise acquired by Future Projects or any of its
Subsidiaries since the date of the Future Projects Financial Statements.
All properties and assets reflected in the Future Projects Financial
Statements are free and clear of all material Encumbrances and are not, in
the case of real property, subject to any material rights of way, building
use restrictions, exceptions, variances, reservations or limitations of
any nature whatsoever except, with respect to all such properties and
assets, (a) mortgages or security interests shown on the Future Projects
Financial Statements as securing specified liabilities or obligations,
with respect to which no default (or event which, with notice or lapse of
time or both, would constitute a default) exists, and all of which are
listed in the Future Projects Disclosure Letter, (b) mortgages or security
interests incurred in connection with the purchase of property or assets
after the date of the Future Projects
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Financial Statements (such mortgages and security interests being
limited to the property or assets so acquired), with respect to which
no default (or event which, with notice or lapse of time or both,
would constitute a default) exists, (c) as to real property, (i)
imperfections of title, if any, none of which materially detracts from
the value or impairs the use of the property subject thereto, or
impairs the operations of Future Projects or any of its Subsidiaries
and (ii) zoning laws that do not impair the present or anticipated use
of the property subject thereto, and (d) liens for current taxes not
yet due. The properties and assets of Future Projects and its
Subsidiaries include all rights, properties and other assets necessary
to permit Future Projects and its Subsidiaries to conduct Future
Projects's business in all material respects in the same manner as it
is conducted on the date of this Agreement.
6.9 Building, Plants and Equipment. The buildings, plants, structures and
material items of equipment and other personal property owned or
leased by Future Projects or its Subsidiaries are, in all respects
material to the business or financial condition of Future Projects and
its Subsidiaries, taken as a whole, in good operating condition and
repair (ordinary wear and tear excepted) and are adequate in all such
respects for the purposes for which they are being used. Future
Projects has not received notification that it or any of its
Subsidiaries is in violation of any applicable building, zoning,
anti-pollution, health, safety or other law, ordinance or regulation
in respect to its buildings, plants or structures or their operations,
which violation is likely to have a material adverse effect on the
business or financial condition of Future Projects and its
Subsidiaries, taken as a whole or which would require a payment by
Berten or Future Projects or any of their subsidiaries in excess of
$2,000 in the aggregate, and which as not been cured.
6.10 No Condemnation or Expropriation. Neither the whole nor any portion of
the property or leaseholds owned or held by Future Projects or any of
its Subsidiaries is subject to any governmental decree or order to be
sold or is being condemned, expropriated or otherwise taken by any
Governmental Body or other Person with or without payment of
compensation therefor, which action is likely to have a material
adverse effect on the business or financial condition of Future
Projects and its Subsidiaries, taken as a whole.
6.11 Litigation. There is no action, suit, inquiry, proceeding or
investigation by or before any court of Governmental Body pending or
threatened in writing against or involving Future Projects or any of
its Subsidiaries which is likely to have a material adverse effect on
the business or financial condition of Berten, Future Projects and any
of their Subsidiaries, taken as a whole, or which would require
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a payment by Future Projects or its subsidiaries in excess of $2,000 in the
aggregate or which questions or challenges the validity of this Agreement.
Neither Future Projects nor any of its Subsidiaries is subject to any
judgment, order or decree that is likely to have a material adverse effect
on the business or financial condition of Berten, Future Projects or any of
their Subsidiaries, taken as a whole, or which would require a payment by
Future Projects or its subsidiaries in excess of $2,000 in the aggregate.
6.12 Absence of Certain Changes. Since the date of the Future Projects Financial
Statements, neither Future Projects nor any of its Subsidiaries has:
a. suffered the damage or destruction of any of its properties or assets
(whether or not covered by insurance) which is materially adverse to
the business or financial condition of Future Projects and its
Subsidiaries, taken as a whole, or made any disposition of any of its
material properties or assets other than in the ordinary course of
business;
b. made any change or amendment in its certificate of incorporation or
by-laws, or other governing instruments;
c. issued or sold any Equity Securities or other securities, acquired,
directly or indirectly, by redemption or otherwise, any such Equity
Securities, reclassified, split-up or otherwise changed any such
Equity Security, or granted or entered into any options, warrants,
calls or commitments of any kind with respect thereto;
d. organized any new Subsidiary or acquired any Equity Securities of any
Person or any equity or ownership interest in any business;
e. borrowed any funds or incurred, or assumed or become subject to,
whether directly or by way of guarantee or otherwise, any obligation
or liability with respect to any such indebtedness for borrowed money;
f. paid, discharged or satisfied any material claim, liability or
obligation (absolute, accrued, contingent or otherwise), other than
in the ordinary course of business;
g. prepaid any material obligation having a maturity of more than 90
days from the date such obligation was issued or incurred;
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h. canceled any material debts or waived any material claims or rights, except
in the ordinary course of business;
i. disposed of or permitted to lapse any rights to the use of any material
patent or registered trademark or copyright or other intellectual property
owned or used by it;
j. granted any general increase in the compensation of officers or employees
(including any such increase pursuant to any employee benefit plan);
k. purchased or entered into any contract or commitment to purchase any
material quantity of raw materials or supplies, or sold or entered into
any contract or commitment to sell any material quantity of property or
assets, except (i) normal contracts or commitments for the purchase of,
and normal purchases of, raw materials or supplies, made in the ordinary
course of business, (ii) normal contracts or commitments for the sale of,
and normal sales of, inventory in the ordinary course of business, and
(iii) other contracts, commitments, purchases or sales in the ordinary
course of business;
l. made any capital expenditures or additions to property, plant or equipment
or acquired any other property or assets (other than raw materials and
supplies) at a cost in excess of $2,000 in the aggregate;
m. written off or been required to write off any notes or accounts receivable
in an aggregate amount in excess of $2,000;
n. written down or been required to write down any inventory in an aggregate
amount in excess of $2,000;
o. entered into any collective bargaining or union contract or agreement; or
p. other than the ordinary course of business, incurred any liability
required by generally accepted accounting principles to be reflected on a
balance sheet and material to the business or financial condition of
Future Projects and its subsidiaries taken as a whole.
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6.13 No Material Adverse Change. Since the date of the Future Projects
Financial Statements, there has not been any material adverse change in
the business or financial condition of Future Projects and its
Subsidiaries taken as a whole.
6.14 Contracts and Commitments. Neither Future Projects nor any of its
Subsidiaries is a party to any:
a. Contract or agreement (other than purchase or sales orders
entered into in the ordinary course of business) involving any
liability on the part of Future Projects or one of its
Subsidiaries of more than $2,000 and not cancelable by Future
Projects or the relevant Subsidiary (without liability to Future
Projects or such Subsidiary) within 60 days;
b. Lease of personal property involving annual rental payments in
excess of $2,000 and not cancelable by Future Projects or the
relevant Subsidiary (without liability to Future Projects or
such Subsidiary) within 90 days;
c. Employee bonus, stock option or stock purchase, performance
unit, profit-sharing, pension, savings, retirement, health,
deferred or incentive compensation, insurance or other material
employee benefit plan (as defined in Section 2(3) of ERISA) or
program for any of the employees, former employees or retired
employees of Future Projects or any of its Subsidiaries;
d. Commitment, contract or agreement that is currently expected by
the management of Future Projects to result in any material loss
upon completion or performance thereof;
e. Contract, agreement or commitment that is material to the
business of Future Projects and its Subsidiaries, taken as a
whole, with any officer, employee, agent, consultant, advisor,
salesman, sales representative, value added reseller,
distributor or dealer, or
f. Employment agreement or other similar agreement that contains
any severance or termination pay, liabilities or obligations.
All such contracts and agreements are in full force and effect. Neither Future
Projects nor any or its Subsidiaries is in breach of, in violation of or in
default under, any agreement, instrument, indenture, deed of trust, commitment,
contract or other obligation of any type to which Future Projects or any of its
Subsidiaries is a party
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or is or may be bound that relates to the business of Future Projects or any of
its Subsidiaries or to which any of the assets or properties of Future Projects
or any of its Subsidiaries is subject, the effect of which breach, violation or
default is likely to materially and adversely affect the business or financial
condition of Future Projects and its Subsidiaries, taken as a whole.
6.15 Labor Relations. Neither Future Projects nor any of its Subsidiaries is
a party to any collective bargaining agreement. Except for any matter
which is not likely to have a material adverse effect on the business or
financial condition of Future Projects and its Subsidiaries, taken as a
whole, (a) Future Projects and each of its Subsidiaries is in compliance
with all applicable laws respecting employment and employment practices,
terms and conditions of employment and wages and hours, and is not
engaged in any unfair labor practice, (b) there is no unfair labor
practice complaint against Future Projects or any of its Subsidiaries
pending before the National Labor Relations Board, (c) there is no labor
strike, dispute, slowdown or stoppage actually pending or threatened
against Future Projects or any of its Subsidiaries, (d) no
representation question exists respecting the employees of Future
Projects or any of its Subsidiaries, (e) neither Future Projects nor any
of its Subsidiaries has experienced any strike, work stoppage or other
labor difficulty, and (f) no collective bargaining agreement relating to
employees of Future Projects or any of its Subsidiaries is currently
being negotiated.
6.16 Employee Benefit Plans. No material employee pension and welfare benefit
plans coveting employees of Future Projects and its Subsidiaries is (1)
a multi-employer plan as defined in Section 3(37) of ERISA, or (2) a
defined benefit plan as defined in Section 3(35) of ERISA, any listed
individual account pension plan is duly qualified as tax exempt under
the applicable sections of the Code, each listed benefit plan and
related funding arrangement, if any, has been maintained in all material
respects in compliance with its terms and the provisions of ERISA and
the Code.
6.17 Compliance with Law. The operations of Future Projects and its
Subsidiaries have been conducted in accordance with all applicable laws
and regulations of all Governmental Bodies having jurisdiction over
them, except for violations thereof which are not likely to have a
material adverse effect on the business or financial condition of Future
Projects and its Subsidiaries, taken as a whole, or which would not
require a payment by Future Projects or its Subsidiaries in excess of
$2,000 in the aggregate, or which have been cured. Neither Future
Projects nor any of its Subsidiaries has received any notification of
any asserted present or past failure by it to comply with any such
applicable laws or
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regulations. Future Projects and its Subsidiaries have all material
licenses, permits, orders or approvals from the Governmental Bodies
required for the conduct of their businesses, and are not in material
violation of any such licenses, permits, orders and approvals. All such
licenses, permits, orders and approvals are in full force and effect,
and no suspension or cancellation of any thereof has been threatened.
6.18 Tax Matters.
a. Future Projects and each of its Subsidiaries (1) has filed all
nonconsolidated and noncombined Tax Returns and all consolidated
or combined Tax Returns that include only Future Projects and/or
its Subsidiaries and not Seller or its other Affiliates (for the
purposes of this Section 6.19, such tax Returns shall be
considered nonconsolidated and noncombined Tax Returns) required
to be filed through the date hereof and has paid any Tax due
through the date hereof with respect to the time periods covered
by such nonconsolidated and noncombined Tax Returns and shall
timely pay any such Taxes required to be paid by it after the
date hereof with respect to such Tax Returns and (2) shall
prepare and timely file all such nonconsolidated and noncombined
Tax Returns required to be filed after the date hereof and
through the Closing Date and pay all Taxes required to be paid
by it with respect to the periods covered by such Tax Returns;
(B) all such Tax Returns filed pursuant to clause (A) after the
date hereof shall, in each case, be prepared and filed in a
manner consistent in all material respects (including elections
and accounting methods and conventions) with such Tax Return
most recently filed in the relevant jurisdiction prior to the
date hereof; except as otherwise required by law or regulation.
Any such Tax Return filed or required to be filed after the date
hereof shall not reflect any new elections or the adoption of
any new accounting methods or conventions or other similar
items, except to the extent such particular reflection or
adoption is required to comply with any law or regulation.
b. All consolidated or combined Tax Returns (except those described
in subparagraph (a) above) required to be filed by any person
through the date hereof that are required or permitted to
include the income, or reflect the activities, operations and
transactions, of Future Projects or any of its Subsidiaries for
any taxable period have been timely filed, and the income,
activities, operations and transactions of Future Projects and
Subsidiaries have been properly included and reflected thereon.
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Future Projects shall prepare and file, or cause to be prepared
and filed, all such consolidated or combined Tax Returns that
are required or permitted to include the income, or reflect the
activities, operations and transactions, of Future Projects or
any Subsidiary, with respect to any taxable year or the portion
thereof ending on or prior to the Closing Date, including,
without limitation, Future Projects's consolidated federal
income tax return for such taxable years. Future Projects has
filed or will timely file a consolidated federal income tax
return for the taxable year ended December 31, 1999 and such
return shall include and reflect the income, activities,
operations and transactions of Future Projects and Subsidiaries
for the taxable period then ended, and hereby expressly
covenants and agrees to file a consolidated federal income tax
return, and to include and reflect thereon the income,
activities, operations and transactions of Future Projects and
Subsidiaries for the taxable period through the Closing Date.
All Tax Returns filed pursuant to this subparagraph (b) after
the date hereof shall, in each case, to the extent that such Tax
Returns specifically relate to Future Projects or any of its
Subsidiaries and do not generally relate to matters affecting
other members of Future Project's consolidated group, be
prepared and filed in a manner consistent in all material
respects (including elections and accounting methods and
conventions) with the Tax Return most recently filed in the
relevant jurisdictions prior to the date hereof, except as
otherwise required by law or regulation. Future Projects has
paid or will pay all Taxes that may now or hereafter be due with
respect to the taxable periods covered by such consolidated or
combined Tax Returns.
c. Neither Future Projects nor any of its Subsidiaries has agreed,
or is required, to make any adjustment (x) under Section 481(a)
of the Code by reason of a change in accounting method or
otherwise or (y) pursuant to any provision of the Tax Reform Act
of 1986, the Revenue Act of 1987 or the Technical and
Miscellaneous Revenue Act of 1988.
d. Neither Future Projects nor any of its Subsidiaries or any
predecessor or Affiliate of the foregoing has, at any time,
filed a consent under Section 341(f)(1) of the Code, or agreed
under Section 341(f)(3) of the Code, to have the provisions of
Section 341(f)(2) of the Code apply to any sale of its stock.
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e. There is no (nor has there been any request for an) agreement,
waiver or consent providing for an extension of time with
respect to the assessment of any Taxes attributable to Future
Projects or its Subsidiaries, or their assets or operations and
no power of attorney granted by Future Projects or any of its
Subsidiaries with respect to any Tax matter is currently in
force.
f. There is no action, suit, proceeding, investigation, audit,
claim, demand, deficiency or additional assessment in progress,
pending or threatened against or with respect to any Tax
attributable to Future Projects, its Subsidiaries or their
assets or operations.
g. All amounts required to be withheld as of the Closing Date for
Taxes or otherwise have been withheld and paid when due to the
appropriate agency or authority.
h. No property of Future Projects is "tax-exempt use property"
within the meaning of Section 168(h) of the Code nor property
that Future Projects and/or its Subsidiaries will be required to
treat as being owned by another person pursuant to Section
168(f)(8) of the Internal Revenue Code of 1954, as amended and
in effect immediately prior to the enactment of the Tax Reform
Act of 1986.
i. There have been delivered or made available to Berten true and
complete copies of all income Tax Returns (or with respect to
consolidated or combined returns, the portion thereof) and any
other Tax Returns requested by Berten as may be relevant to
Future Projects, its Subsidiaries, or their assets or operations
for any and all periods ending after December 31, 1999, or for
any Tax years which are subject to audit or investigation by any
taxing authority or entity.
j. There is no contract, agreement, plan or arrangement, including
but not limited to the provisions of this Agreement, covering
any employee or former employee of Future Projects or its
Subsidiaries that, individually or collectively, could give rise
to the payment of any amount that would not be deductible
pursuant to Section 280G or 162 of the Code.
6.19 Environmental Matters.
a. At all times prior to the date hereof, Future Projects and its
Subsidiaries have complied in all material respects with
applicable
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environmental laws, orders, regulations, rules and ordinances
relating to the Properties (as hereinafter defined), the
violation of which would have a material adverse effect on the
business or financial condition of Future Projects and its
Subsidiaries, taken as a whole, or which would require a payment
by Future Projects or its Subsidiaries in excess of $2,000 in
the aggregate, and which have been duly adopted, imposed or
promulgated by any legislative, executive, administrative or
judicial body or officer of any Governmental Body.
b. The environmental licenses, permits and authorizations that are
material to the operations of Future Projects and its
Subsidiaries, taken as a whole, are in full force and effect.
c. Neither Future Projects nor any of its Subsidiaries has released
or caused to be released on or about the properties currently
owned or leased by Future Projects or any of its Subsidiaries
(the "Properties") any (i) pollutants, (ii) contaminants, (iii)
"Hazardous Substances," as that term is defined in Section
101(14) of the Comprehensive Environmental Response Act, as
amended or (iv) "Regulated Substances," as that term is defined
in Section 9001 of the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, et seq., as amended, which would be
required to be remediated by any governmental agency with
jurisdiction over the Properties under the authority of laws,
regulations and ordinances as in effect and currently
interpreted on the date hereof, which remediation would have a
material adverse effect on the business or financial condition
of Future Projects and its Subsidiaries, taken as a whole.
6.20 Brokers or Finders. Future Projects has not employed any broker or
finder or incurred any liability for any brokerage or finder's fees or
commissions or similar payments in connection with the sale of the
Future Projects Shares to the shareholders of Berten.
6.21 Absence of Certain Commercial Practices. Neither Future Projects nor any
of its Subsidiaries has, directly or indirectly, paid or delivered any
fee, commission or other sum of money or item of property, however
characterized, to any finder, agent, government official or other party,
in the United States or any other country, which is in any manner
related to the business or operations of Future Projects or its
Subsidiaries, which Future Projects or one of its Subsidiaries knows or
has reason to believe to have been illegal under any federal, state or
local laws of the United States or any other country having
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Jurisdiction; and neither Future Projects nor any of its Subsidiaries
has participated, directly or indirectly, in any boycotts or other
similar practices affecting any of its actual or potential customers in
violation of any applicable law or regulation.
6.22 Transactions with Directors and Officers. Future Projects and its
Subsidiaries do not engage in business with any Person in which any of
Future Projects's directors or officers has a material equity interest.
No director or officer of Future Projects owns any property, asset or
right which is material to the business of Future Projects and its
Subsidiaries, taken as a whole.
6.23 Borrowing and Guarantees. Future Projects and its Subsidiaries (a) do
not have any indebtedness for borrowed money, (b) are not lending or
committed to lend any money (except for advances to employees in the
ordinary course of business), and (c) are not guarantors or sureties
with respect to the obligations of any Person.
6.24 Purchase for Investment. Future Projects is purchasing the Berten Shares
solely for its own account for the purpose of investment and not with a
view to, or for sale in connection with, any distribution of any portion
thereof in violation of any applicable securities law.
7. ACCESS AND REPORTING; FILINGS WITH GOVERNMENTAL AUTHORITIES; OTHER
COVENANTS.
7.1 Access Between the date of this Agreement and the Closing Date. Each of
Berten and Future Projects shall (a) give to the other and its
authorized representatives reasonable access to all plants, offices,
warehouse and other facilities and properties of Berten or Future
Projects, as the case may be, and to its books and records, (b) permit
the other to make inspections thereof, and (c) cause its officers and
its advisors to furnish the other with such financial and operating data
and other information with respect to the business and properties of
such party and its Subsidiaries and to discuss with such and its
authorized representatives its affairs and those of its Subsidiaries,
all as the other may from time to time reasonably request.
7.3 Regulatory Matters. Berten and Future Projects shall (a) file with
applicable regulatory authorities any applications and related documents
required to be filed by them in order to consummate the contemplated
transaction and (b) cooperate with each other as they may reasonably
request in connection with the foregoing.
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8. CONDUCT OF FUTURE PROJECTS'S BUSINESS PRIOR TO THE CLOSING.
8.1 Operation in Ordinary Course. Between the date of this Agreement and the
Closing Date, Future Projects shall cause conduct its businesses in all
material respects in the ordinary course.
8.2 Business Organization. Between the date of this Agreement and the
Closing Date, Future Projects shall (a) preserve substantially intact
the business organization of Future Projects; and (b) preserve in all
material respects the present business relationships and good will of
Future Projects and each of its Subsidiaries.
8.3 Corporate Organization. Between the date of this Agreement and the
Closing Date, Future Projects shall not cause or permit any amendment of
its certificate of incorporation or by-laws (or other governing
instrument) and shall not:
a. issue, sell or otherwise dispose of any of its Equity
Securities, or create, sell or otherwise dispose of any options,
rights, conversion rights or other agreements or commitments of
any kind relating to the issuance, sale or disposition of any of
its Equity Securities;
b. create or suffer to be created any Encumbrance thereon, or
create, sell or otherwise dispose of any options, rights,
conversion rights or other agreements or commitments of any kind
relating to the sale or disposition of any Equity Securities;
c. reclassify, split up or otherwise change any of its Equity
Securities;
d. be party to any merger, consolidation or other business
combination;
e. sell, lease, license or otherwise dispose of any of its
properties or assets (including but not limited to rights with
respect to patents and registered trademarks and copyrights or
other proprietary rights), in an amount which is material to the
business or financial condition of Future Projects and its
Subsidiaries, taken as a whole, except in the ordinary course of
business; or
f. organize any new Subsidiary or acquire any Equity Securities of
any Person or any equity or ownership interest in any business.
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8.4 Other Restrictions. Between the date of this Agreement and the Closing
Date, Future Projects shall not
a. borrow any fluids or otherwise become subject to, whether
directly or by way of guarantee or otherwise, any indebtedness
for borrowed money.
b. create any material Encumbrance on any of its material
properties or assets;
c. except in the ordinary course of business, increase in any
manner the compensation of any director or officer or increase
in any manner the compensation of any class of employees;
d. create or materially modify any material bonus, deferred
compensation, pension, profit sharing, retirement, insurance,
stock purchase, stock option, or other fringe benefit plan,
arrangement or practice or any other employee benefit plan (as
defined in section 3(3) of ERISA);
e. make any capital expenditure or acquire any property or assets;
f. enter into any agreement that materially restricts Future
Projects, Berten or any of their Subsidiaries from carrying on
business;
g. pay, discharge or satisfy any material claim, liability or
obligation, absolute, accrued, contingent or otherwise, other
than the payment, discharge or satisfaction in the ordinary
course of business of liabilities or obligations reflected in
the Future Projects Financial Statements or incurred in the
ordinary course of business and consistent with past practice
since the date of the Future Projects Financial Statements; or
h cancel any material debts or waive any material claims or
rights.
9. DEFINITIONS.
As used in this Agreement, the following terms have the meanings specified or
referred to in this Section 9.
9.1 "Business Day" - Any day that is not a Saturday or Sunday or a day on
which banks located in the City of New York are authorized or requited
to be closed.
9.2 "Code"- The Internal Revenue Code of 1986, as amended.
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9.3 "Disclosure Letter" - A letter dated the date of this Agreement,
executed by either Berten or Future Projects, addressed and delivered to
the other and containing information required by this Agreement and
exceptions to the representations and warranties under this Agreement.
9.4 "Encumbrances"- Any security interest, mortgage, lien, charge, adverse
claim or restriction of any kind, including but not limited to, any
restriction on the use, voting, transfer, receipt of income or other
exercise of any attributes of ownership, other than a restriction on
transfer arising under Federal or state securities laws.
9.5 "Equity Securities" - See Rule 3a-11-1 under the Securities Exchange Act
of 1934.
9.6 "ERISA" - The Employee Retirement Income Security Act of 1974, as
amended.
9.7 "Governmental Body" - Any domestic or foreign national, state or
municipal or other local government or multi-national body (including'
but not limited to, the European Economic Community any subdivision,
agency, commission or authority thereof.
9.8 "Knowledge" - Actual knowledge, after reasonable investigation.
9.9 "Person" - Any individual, corporation, partnership, joint venture,
trust, association, unincorporated organization, other entity, or
Governmental Body.
9.10 "Subsidiary" - With respect to any Person, any corporation of which
securities having the power to elect a majority of that corporation's
Board of Directors (other than securities having that power only upon
the happening of a contingency that has not occurred) are held by such
Person or one or more of its Subsidiaries.
10. TERMINATION.
10.1 Termination. This Agreement may be terminated before the Closing occurs
only as follows:
a. By written agreement of Berten and Future Projects at any time.
b. By Future Projects, by notice to Berten at any time, if one or
more of the conditions specified in Section 4 is not satisfied
at the time at which the Closing (as it may be deferred pursuant
to Section 2.1) would otherwise occur or if satisfaction of such
a condition is or becomes impossible.
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c. By Berten, by notice to Future Projects at any time, if one or
more of the conditions specified in Section 3 is not satisfied
at the time at which the Closing (as it may be deferred pursuant
to Section 2.1), would otherwise occur of if satisfaction of
such a condition is or becomes impossible.
d. By Berten to Future Projects, by notice to the other at any time
after July 31, 2000.
10.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 10.1, this Agreement shall terminate without any liability or
further obligation of any party to another.
13. Notices. All notices, consents, assignments and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given when (a) delivered by hand, (b) sent by telex or
facsimile (with receipt confirmed), provided that a copy is mailed by
registered mail, return receipt requested, or (c) received by the
DELIVERY service (receipt requested), in each case to the appropriate
addresses, telex numbers and facsimile numbers set forth below (or to
such other addresses, telex numbers and facsimile numbers as a party may
designate as to itself by notice to the other parties).
(a) If to Future Projects:
Unit 1102 La Tour
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
(b) If to Berten:
Berten USA Inc.
0000 X. Xxxxxxx, Xxxxx 000
Xxx Xxxx Xxxxxx, XX 00000
14. MISCELLANEOUS.
14.2 Expenses. Each party shall bear its own expenses incident to the
preparation, negotiation, execution and delivery of this Agreement and
the performance of its obligations hereunder.
14.3 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation
of this agreement.
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14.4 No Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agent. Any waiver must
be in writing.
14.5 Exclusive Agreement; Amendment. This Agreement supersedes all prior
agreements among the parties with respect to its subject matter with
respect thereto and cannot be changed or terminated orally.
14.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of
which together shall constitute the same instrument
14.7 Governing Law. This Agreement and (unless otherwise provided) all agents
hereof and waivers and consents hereunder shall be governed by the
internal law of the State of California, without regard to the conflicts
of law principles thereof.
14.8 Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hero and their respective successors and
assigns, provided that neither party may assign its rights hereunder
without the consent of the other.
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IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be executed by their respective officers, hereunto duly authorized, and entered
into as of the date first above written.
BERTEN USA INC,
A NEVADA CORPORATION
By: /s/ XXXXXXXX XXXXXXXXXX
--------------------------------------------
Corporate Secretary
FUTURE PROJECTS VII CORP.
A FLORIDA CORPORATION
By: /s/ XXXXXXXX XXXXXXXXXX
--------------------------------------------
Xxxxxxxx Xxxxxxxxxx, Secretary and Director
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EXHIBIT A
BERTEN SHAREHOLDERS
Name Future Projects Shares to be Issued
---- -----------------------------------
35
