EXHIBIT 2.2
AGREEMENT
CONCERNING THE EXCHANGE OF SECURITIES
BETWEEN
e NUTRITION, INC.
AND
TORPEDO SPORTS USA, INC. AND
THE STOCKHOLDERS OF TORPEDO SPORTS USA, INC.
INDEX
Page
ARTICLE I - EXCHANGE OF SECURITIES 1
1.1 - Issuance of Securities 1
1.2 - e Nutrition Common Stock Outstanding 1
1.3 - Exemption from Registration 1
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF TORPEDO 2
2.1 - Organization 2
2.2 - Capital 2
2.3 - Subsidiaries 2
2.4 - Directors and Officers 2
2.5 - Financial Statements 2
2.6 - Absence of Changes 3
2.7 - Absence of Undisclosed Liabilities 3
2.8 - Tax Returns 3
2.9 - Investigation of Financial Condition 3
2.10 - Proprietary Rights 3
2.11 - Compliance with Laws 3
2.12 - Litigation 3
2.13 - Authority 3
2.14 - Ability to Carry Out Obligations 4
2.15 - Full Disclosure 4
2.16 - Assets 4
2.17 - Material Contracts 4
2.18 - Indemnification 4
2.19 - Criminal or Civil Acts 4
2.20 - Restricted Securities 4
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF e NUTRITION 5
3.1 - Organization 5
3.2 - Capital 5
3.3 - Subsidiaries 5
3.4 - Directors and Officers 5
3.5 - Financial Statements 5
3.6 - Absence of Changes 5
3.7 - Absence of Undisclosed Liabilities 5
3.8 - Tax Returns 6
3.9 - Investigation of Financial Condition 6
(i)
INDEX
(Continued)
Page
3.10 - Proprietary Rights 6
3.11 - Compliance with Laws 6
3.12 - Litigation 6
3.13 - Authority 6
3.14 - Ability to Carry Out Obligations 6
3.15 - Full Disclosure 7
3.16 - Assets 7
3.17 - Material Contracts 7
3.18 - Indemnification 7
3.19 - Criminal or Civil Acts 7
ARTICLE IV - COVENANTS PRIOR TO THE CLOSING DATE 7
4.1 - Investigative Rights 7
4.2 - Conduct of Business 7
ARTICLE V - CONDITIONS PRECEDENT TO e NUTRITION'S PERFORMANCE 8
5.1 - Conditions 8
5.2 - Accuracy of Representations 8
5.3 - Performance 8
5.4 - Absence of Litigation 8
5.5 - Officer's Certificate 8
5.6 - Corporate Action 8
5.7 - Financial Statement Condition 8
5.8 - Retirement of Common Stock 8
ARTICLE VI - CONDITIONS PRECEDENT TO TORPEDO'S
PERFORMANCE 9
6.1 - Conditions 9
6.2 - Accuracy of Representations 9
6.3 - Performance 9
6.4 - Absence of Litigation 9
6.5 - Officer's Certificate 9
6.6 - Directors of e Nutrition 9
6.7 - Officers of e Nutrition 9
6.8 - Corporate Action 10
(ii)
INDEX
(Continued)
Page
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ARTICLE VII - CLOSING 10
7.1 - Closing 10
7.2 - Ownership of e Nutrition 10
ARTICLE VIII- COVENANTS SUBSEQUENT TO THE CLOSING DATE 11
8.1 - Registration and Listing 11
ARTICLE IX- MISCELLANEOUS 11
9.1 - Captions and Headings 11
9.2 - No Oral Change 11
9.3 - Non-Waiver 11
9.4 - Time of Essence 11
9.5 - Entire Agreement 11
9.6 - Choice of Law 11
9.7 - Counterparts 11
9.8 - Notices 12
9.9 - Binding Effect 12
9.10 - Mutual Cooperation 12
9.11 - Finders 12
9.12 - Announcements 12
9.13 - Expenses 12
9.14 - Survival of Representations and
Warranties 13
9.15 - Exhibits 13
9.16 - Legal Counsel 13
Signatures 13
(iii)
INDEX
(Continued)
EXHIBITS
Allocation of Common Stock . Exhibit 1.1
Subscription Agreement Exhibit 1.2
Authorized Capital of Torpedo Exhibit 2.2
Financial Statements of Torpedo Exhibit 2.5
Material Contracts of Torpedo and TSI Exhibit 2.17 Financial Statements
of e NutritionExhibit 3.5 Certificate of Officer-Torpedo Exhibit 5.5
Certificate of Officer-e Nutrition Exhibit 6.5
(iv)
AGREEMENT
AGREEMENT made this day of May, 2002, by and between e NUTRITION, INC.,
a Nevada corporation ("e Nutrition"), TORPEDO SPORTS USA, INC., a Delaware
corporation ("Torpedo"), and the stockholders of Torpedo (the "Torpedo
Stockholders") who are listed on Exhibit 1.1 hereto and have executed
Subscription Agreements in the form attached in Exhibit 1.2, hereto.
WHEREAS, e Nutrition desires to acquire all of the issued and
outstanding securities of Torpedo from the Torpedo Stockholders in exchange for
newly issued unregistered shares of common stock of e Nutrition;
WHEREAS, Torpedo desires to assist e Nutrition in acquiring all of the
issued and outstanding common stock of Torpedo pursuant to the terms of this
Agreement; and
WHEREAS, all of the Torpedo Stockholders, by execution of Exhibit 1.2
hereto, agree to exchange all 8,000,000 common shares of Torpedo for 8,000,000
common shares of e Nutrition.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
EXCHANGE OF SECURITIES
1.1 ISSUANCE OF SECURITIES. Subject to the terms and conditions of this
Agreement, e Nutrition agrees to issue and exchange 8,000,000 fully paid and
nonassessable unregistered shares of e Nutrition's $.001 par value common stock
(the "e Nutrition Shares") for all 8,000,000 issued and outstanding shares of
the $.01 par value common stock of Torpedo (the "Torpedo Shares") held by the
Torpedo Stockholders. All e Nutrition shares will be issued directly to the
Torpedo Stockholders on the Closing Date, in the amounts set forth in Exhibit
1.1.
1.2 E NUTRITION COMMON STOCK OUTSTANDING. By the closing date of this
Agreement (the "Closing Date"), e Nutrition shall have reverse split its common
stock on the basis of one share for each 1.8870314 shares outstanding and shall
have retired 4,478,430 (post-reverse) split shares by purchasing the shares from
e Nutrition's President for $50,000, as described in paragraph 5.8. Accordingly,
there shall be a total of 1,999,999 shares of e Nutrition common stock
outstanding on the Closing Date.
1.3 EXEMPTION FROM REGISTRATION. The parties hereto intend that all e
Nutrition shares to be issued to the Torpedo Stockholders shall be exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), pursuant to Section 4(2) of the Act and the rules and regulations
promulgated thereunder. In furtherance thereof, the Torpedo Stockholders will
execute and deliver to e Nutrition on the Closing Date a copy of the
Subscription Agreement set forth in Exhibit 1.2 hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TORPEDO
Torpedo hereby represents and warrants to e Nutrition that:
2.1 ORGANIZATION. Torpedo is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the jurisdictions where its business requires qualification.
2.2 CAPITAL. The authorized capital stock of Torpedo consists of (i)
25,000,000 authorized shares of $.01 par value common stock, of which 8,000,000
shares of common stock are outstanding, and (ii) 10,000,000 authorized shares of
preferred stock, of which no shares are outstanding. All of the outstanding
shares of Torpedo are duly and validly issued, fully paid and nonassessable.
Except as set forth on Exhibit 2.2 hereof, there are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities or other agreements or commitments obligating Torpedo to issue or to
transfer from treasury any additional shares of its capital stock of any class.
2.3 SUBSIDIARIES. Torpedo has one subsidiary, Torpedo Sports, Inc.
("TSI"), a Canadian corporation which manufactures and distributes outdoor
recreational products for children.
2.4 DIRECTORS AND OFFICERS. The names and titles of all directors and
officers of Torpedo as of the date of this Agreement are as follows: Xxxxx Xxxx,
Sole Director; Xxxxxx X. Shake, President; Xxxxx Xxxxxxxxx, Chief Financial
Officer; C. Xxxxxxxxx XxXxxxx, Xx., Secretary; and Xxxxxx Xxxxx, Assistant
Secretary.
2.5 FINANCIAL STATEMENTS. Exhibit 2.5 hereto consists of the audited
financial statements of TSI for the year ended July 31, 2000 and 2001 and
unaudited financial statements for the seven months ended February 28, 2002 (the
"TSI Financial Statements"). The TSI Financial Statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently followed by TSI throughout the periods indicated, and fairly
present the financial position of TSI as of the dates of the balance sheets
included in the TSI Financial Statements and the results of operations for the
periods indicated. Torpedo, TSI's parent, was organized in March 2002 and has no
assets or liabilities other than its ownership of TSI, and will have no other
assets or liabilities on the Closing Date.
2.6 ABSENCE OF CHANGES. There has not been any change in the financial
condition or operations of Torpedo or TSI since February 28, 2002, other than
changes in the ordinary course of business, which changes have not in the
aggregate been materially adverse.
2.7 ABSENCE OF UNDISCLOSED LIABILITIES. As of February 28, 2002,
Torpedo and TSI did not have any material debt, liability or obligation of any
nature, whether accrued, absolute, contingent or otherwise, and whether due or
to become due, that was not reflected in the TSI Financial Statements.
2.8 TAX RETURNS. Torpedo and TSI have filed all federal, state and
local tax returns required by law and has paid all taxes, assessments and
penalties due and payable. The provisions for taxes, if any, reflected in
Exhibit 2.5 are adequate for the periods indicated. There are no present
disputes as to taxes of any nature payable by TSI.
2.9 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner
reducing or otherwise mitigating the representations contained herein, e
Nutrition, its legal counsel and accountants shall have the opportunity to meet
with Torpedo's accountants and attorneys to discuss the financial condition of
Torpedo. Torpedo shall make available to e Nutrition all books and records of
Torpedo and TSI.
2.10 PROPRIETARY RIGHTS. Torpedo and TSI own and hold all necessary
trademarks, service marks, trade names, copyrights, patents and proprietary
information and other rights necessary or material to their business as now
conducted or proposed to be conducted.
2.11 COMPLIANCE WITH LAWS. Torpedo and TSI have complied with, and are
not in violation of, applicable Canadian and U.S. statutes, laws and
regulations.
2.12 LITIGATION. Neither Torpedo nor TSI are defendants in any material
suit, action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge of Torpedo
and TSI, threatened against or affecting Torpedo or TSI or their business,
assets or financial condition. Neither Torpedo nor TSI are in default with
respect to any order, writ, injunction or decree of any federal, state, local or
foreign court, department, agency or instrumentality applicable to it. Neither
is engaged in any material litigation to recover monies due to it.
2.13 AUTHORITY. The Board of Directors of Torpedo has authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein, and Torpedo has full power and authority to execute,
deliver and perform this Agreement, and this Agreement is a legal, valid and
binding obligation of Torpedo and is enforceable in accordance with its terms
and conditions. By execution of Exhibit 1.2, all of the Torpedo Stockholders
have agreed to and have approved the terms of this Agreement.
2.14 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of
this Agreement by Torpedo and the performance by Torpedo of its obligations
hereunder in the time and manner contemplated will not cause, constitute or
conflict with or result in (a) any breach or violation of any of the provisions
of or constitute a default under any license, indenture, mortgage, instrument,
article of incorporation, bylaw, or other agreement or instrument to which
Torpedo is a party, or by which it may be bound, nor will
any consents or authorizations of any party other than those hereto be required,
(b) an event that would permit any party to any agreement or instrument to
terminate it or to accelerate the maturity of any indebtedness or other
obligation of Torpedo, or (c) an event that would result in the creation or
imposition of any lien, charge or encumbrance on any asset of Torpedo.
2.15 FULL DISCLOSURE. None of the representations and warranties made
by Torpedo herein or in any exhibit, certificate or memorandum furnished or to
be furnished by Torpedo, or on its behalf, contains or will contain any untrue
statement of material fact or omit any material fact the omission of which would
be misleading, in any material respect.
2.16 ASSETS. Torpedo and TSI have good and marketable title to all of
their property, free and clear of all liens, claims and encumbrances, except as
otherwise indicated in Exhibit 2.5.
2.17 MATERIAL CONTRACTS. The material contracts of Torpedo and TSI are
attached hereto as Exhibit 2.17.
2.18 INDEMNIFICATION. Torpedo agrees to indemnify, defend and hold e
Nutrition harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney fees, that
it shall incur or suffer, which arise out of, or result from (i) any breach by
Torpedo in performing any of its covenants or agreements under this Agreement or
in any schedule, certificate, exhibit or other instrument furnished or to be
furnished by Torpedo under this Agreement or (ii) any untrue statement made by
Torpedo in this Agreement.
2.19 CRIMINAL OR CIVIL ACTS. For the period of ten years prior to the
execution of this Agreement, no executive officer, director or principal
stockholder of Torpedo or TSI has been convicted of a Canadian or U.S. felony
crime, filed for personal bankruptcy, been the subject of a Canadian or U.S.
regulatory agency judgment or decree, or is currently to Torpedo's knowledge the
subject to any investigation in connection with a Canadian or U.S. felony crime
or regulatory proceeding.
2.20 RESTRICTED SECURITIES. Torpedo and the Torpedo Stockholders, by
execution of this Agreement and of Exhibit 1.2, acknowledge that all of the e
Nutrition shares issued by e Nutrition are restricted securities and none of
such securities may be sold or publicly traded except in accordance with the
provisions of the Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF E NUTRITION
e Nutrition represents and warrants to Torpedo that:
3.1 ORGANIZATION. e Nutrition is a corporation duly organized, validly
existing and in good standing under the laws of Nevada, has all necessary
corporate powers to carry on its business, and is duly qualified to do business
and is in good standing in each of the states where its business requires
qualification.
3.2 CAPITAL. On the Closing Date, the authorized capital stock of e
Nutrition shall consist of 50,000,000 authorized shares of $.001 par value
common stock, of which 1,999,999 shares of common stock will be outstanding, and
5,000,000 authorized shares of $.001 par value preferred stock, of which none
will be outstanding. All of the outstanding common stock is duly and validly
issued, fully paid and nonassessable. There are no other outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities or other agreements or commitments obligating e Nutrition to issue or
to transfer from treasury any additional shares of its capital stock of any
class except shares and common stock purchase warrants issuable under this
Agreement.
3.3 SUBSIDIARIES. e Nutrition does not have any subsidiaries nor does
it own any interest in any other enterprise.
3.4 DIRECTORS AND OFFICERS. Xxxxxx X. Xxxxx is the sole officer and
director of e Nutrition.
3.5 FINANCIAL STATEMENTS. Exhibit 3.5 hereto consists of the audited
financial statements of e Nutrition for the year ended December 31, 2001 and
unaudited financial statements for the three months ended March 31, 2002 (the "e
Nutrition Financial Statements"). The e Nutrition Financial Statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently followed by e Nutrition throughout the period indicated,
and fairly present the financial position of e Nutrition as of the dates of the
balance sheet included in the e Nutrition Financial Statements and the results
of operations for the period indicated.
3.6 ABSENCE OF CHANGES. Since March 31, 2002, there has not been any
material change in the financial condition or operations of e Nutrition, except
as contemplated by this Agreement.
3.7 ABSENCE OF UNDISCLOSED LIABILITIES. As of March 31, 2002, e
Nutrition did not have any material debt, liability or obligation of any nature,
whether accrued, absolute, contingent or otherwise, and whether due or to become
due, that is not reflected in the e Nutrition Financial Statements.
3.8 TAX RETURNS. Within the times and in the manner prescribed by law,
e Nutrition has filed all federal, state and local tax returns required by law
and has paid all taxes, assessments, and penalties due and payable. There are no
present disputes as to taxes of any nature payable by e Nutrition.
3.9 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner
reducing or otherwise mitigating the representations contained herein, Torpedo,
its legal counsel and accountants shall have the opportunity to meet with e
Nutrition's accountants and attorneys to discuss the financial condition of e
Nutrition. e Nutrition shall make available to Torpedo all books and records of
e Nutrition.
3.10 PROPRIETARY RIGHTS. e Nutrition does not have any patents,
trademarks, service marks, trade names or copyrights, and none are necessary or
material to its business as now or previously conducted.
3.11 COMPLIANCE WITH LAWS. e Nutrition has complied with, and is not in
violation of, applicable federal, state or local statutes, laws or regulations
including federal and state securities laws, in all material aspects.
3.12 LITIGATION. e Nutrition is not a defendant in any suit, action,
arbitration, or legal, administrative or other proceeding, or governmental
investigation which is pending or, to the best knowledge of e Nutrition,
threatened against or affecting e Nutrition or its business, assets or financial
condition. e Nutrition is not in default with respect to any order, writ,
injunction or decree of any federal, state, local or foreign court, department,
agency or instrumentality applicable to it. e Nutrition is not engaged in any
material litigation to recover monies due to it.
3.13 AUTHORITY. The Board of Directors of e Nutrition has authorized
the execution of this Agreement and the transactions contemplated herein, and e
Nutrition has full power and authority to execute, deliver and perform this
Agreement, and this Agreement is the legal, valid and binding obligation of e
Nutrition, and is enforceable in accordance with its terms and conditions.
3.14 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of
this Agreement by e Nutrition and the performance by e Nutrition of its
obligations hereunder will not cause, constitute or conflict with or result in
(a) any breach or violation of any of the provisions of or constitute a default
under any license, indenture, mortgage, instrument, article of incorporation,
bylaw or other agreement or instrument to which e Nutrition is a party, or by
which it may be bound, nor will any consents or authorization of any party other
than those hereto be required, (b) an event that would permit any party to any
agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of e Nutrition, or (c) an event that would
result in the creation or imposition of any lien, charge or encumbrance on any
asset of e Nutrition.
3.15 FULL DISCLOSURE. None of the representations and warranties made
by e Nutrition herein, or in any exhibit, certificate or memorandum furnished or
to be furnished by e Nutrition or on its behalf, contains or will contain any
untrue statement of material fact or omit any material fact the omission of
which would be misleading.
3.16 ASSETS. On the Closing Date, e Nutrition will have no assets nor
liabilities other than its legal expenses incurred in connection with this
Agreement, which expenses will be paid on the Closing Date.
3.17 MATERIAL CONTRACTS. On the Closing Date, e Nutrition will have no
material contracts.
3.18 INDEMNIFICATION. e Nutrition agrees to indemnify, defend and hold
Torpedo harmless against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, and reasonable attorney fees, that it shall incur
or suffer, which arise out of, or result from (i) any breach by e Nutrition in
performing any of its covenants or agreements in this Agreement or in any
schedule, certificate, exhibit or other instrument furnished or to be furnished
by e Nutrition under this Agreement, or (ii) any untrue statement made by e
Nutrition in this Agreement.
3.19 CRIMINAL OR CIVIL ACTS. For a period of ten years prior to the
execution of this Agreement, no executive officer, director or principal
stockholder of e Nutrition has been convicted of a felony crime, filed for
personal bankruptcy, been the subject of a Commission judgment or decree, or is
currently the subject to an investigation in connection with any felony crime or
Commission proceeding.
3.20 BULLETIN BOARD TRADING STATUS. e Nutrition shall be in compliance
with all requirements for, and its common stock shall be, trading freely on the
Over the Counter Bulletin Board system on the date immediately prior to the
Closing, such that the common stock of the surviving corporation may continue to
be so traded without interruption.
ARTICLE IV
COVENANTS PRIOR TO THE CLOSING DATE
4.1 INVESTIGATIVE RIGHTS. Prior to the Closing Date, each party shall
provide to the other party, and such other party's counsel, accountants,
auditors and other authorized representatives, full access during normal
business hours and upon reasonable advance written notice to all of each party's
properties, books, contracts, commitments and records for the purpose of
examining the same. Each party shall furnish the other party with all
information concerning each party's affairs as the other party may reasonably
request.
4.2 CONDUCT OF BUSINESS. Prior to the Closing Date, each party shall
conduct its business in the normal course and shall not sell, pledge or assign
any assets without the prior written approval of the other party, except in the
normal course of business. Neither party shall amend its Articles or Certificate
of Incorporation or Bylaws (except as may be described in this Agreement),
declare dividends, redeem or sell stock or other securities, incur additional or
newly-funded liabilities, acquire or
dispose of fixed assets, change employment terms, enter into any material or
long-term contract, guarantee obligations of any third party, settle or
discharge any balance sheet receivable for less than its stated amount, pay more
on any liability than its stated amount, or enter into any other transaction
other than in the normal course of business. Neither party shall enter into
negotiations with any third party or complete any transaction with a third party
involving the sale of any of its assets or the exchange of any of its common
stock.
ARTICLE V
CONDITIONS PRECEDENT TO E NUTRITION'S PERFORMANCe
5.1 CONDITIONS. e Nutrition's obligations hereunder shall be subject to
the satisfaction at or before the Closing of all the conditions set forth in
this Article V. e Nutrition may waive any or all of these conditions in whole or
in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by e Nutrition of any other condition of or
any of e Nutrition's other rights or remedies, at law or in equity, if Torpedo
shall be in default of any of its representations, warranties or covenants under
this Agreement.
5.2 ACCURACY OF REPRESENTATIONS. Except as otherwise permitted by this
Agreement, all representations and warranties by Torpedo in this Agreement or in
any written statement that shall be delivered to e Nutrition by Torpedo under
this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
5.3 PERFORMANCE. Torpedo shall have performed, satisfied and complied
with all covenants, agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Closing Date.
5.4 ABSENCE OF LITIGATION. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Torpedo on or before the Closing Date.
5.5 OFFICER'S CERTIFICATE. Torpedo shall have delivered to e Nutrition
a certificate dated the Closing Date in the form of Exhibit 5.5 and signed by
the President of Torpedo certifying that each of the conditions specified in
this Article has been fulfilled and that all of the representations set forth in
Article II are true and correct as of the Closing Date, in all material aspects.
5.6 CORPORATE ACTION. Torpedo shall have obtained the approval of the
Torpedo Stockholders for the transaction contemplated in this Agreement.
5.7 FINANCIAL STATEMENT CONDITION. As of February 28, 2002, Torpedo and
TSI shall, on a consolidated basis, have shareholders' equity of at least
CAN$600,000.
5.8 RETIREMENT OF COMMON STOCK. On the Closing Date, Torpedo shall
advance $50,000 to e Nutrition which e Nutrition shall use to purchase and
retire 4,478,430 (post-reverse split) shares of e Nutrition held by Xxxxxx
Xxxxx, e Nutrition's President. Following the Closing, the advance will be
treated as a contribution to e Nutrition's capital and shall not be repaid to
Torpedo.
ARTICLE VI
CONDITIONS PRECEDENT TO TORPEDO'S PERFORMANCE
6.1 CONDITIONS. Torpedo' obligations hereunder shall be subject to the
satisfaction at or before the Closing of all the conditions set forth in this
Article VI. Torpedo may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by Torpedo of any other condition of or any of
Torpedo' rights or remedies, at law or in equity, if e Nutrition shall be in
default of any of its representations, warranties or covenants under this
Agreement.
6.2 ACCURACY OF REPRESENTATIONS. Except as otherwise permitted by this
Agreement, all representations and warranties by e Nutrition in this Agreement
or in any written statement that shall be delivered to Torpedo by e Nutrition
under this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
6.3 PERFORMANCE. e Nutrition shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it on or before the Closing Date.
6.4 ABSENCE OF LITIGATION. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against e Nutrition on or before the Closing Date.
6.5 OFFICER'S CERTIFICATE. e Nutrition shall have delivered to Torpedo
a certificate dated the Closing Date in the form of Exhibit 6.5 and signed by
the Chief Executive Officer of e Nutrition certifying that each of the
conditions specified in this Article has been fulfilled and that all of the
representations set forth in Article III are true and correct as of the Closing
Date.
6.6 DIRECTORS OF E NUTRITION. On the Closing Date, Xx. Xxxxx shall have
submitted his resignation as the sole director of e Nutrition effective on the
Closing Date after having voted as director of e Nutrition, the sole director of
Torpedo set forth in paragraph 2.4 above.
6.7 OFFICERS OF E NUTRITION. On the Closing Date, the newly constituted
Board of Directors of e Nutrition shall elect the officers of Torpedo as set
forth in paragraph 2.4, above, to be the officers of e Nutrition.
6.8 CORPORATE ACTION. On the Closing Date, e Nutrition shall have (i)
reverse split its common stock and retired certain shares of common stock as
described in paragraph 5.8, above, (ii) obtained stockholders' approval for the
transactions contemplated by this Agreement, (iii) divested itself of, or
terminated, all business operations and (iv) established a stock option plan
satisfactory to Torpedo.
ARTICLE VII
CLOSING
7.1 CLOSING. The Closing of this Agreement shall be held at the offices
of , at any mutually agreeable time and date (the "Closing Date") prior to ____,
2002, unless extended by mutual agreement. At the ________ Closing:
a) Torpedo shall deliver to e Nutrition copies of Exhibit 1.2
executed by all of the Torpedo Stockholders together with
certificates representing all outstanding Torpedo securities duly
endorsed to e Nutrition;
a) e Nutrition shall deliver to the Torpedo Stockholders 8,000,000
shares of e Nutrition's common stock, for which the Torpedo
Shares have been exchanged, pursuant to the computations set
forth in Exhibit 1.1 hereto;
a) e Nutrition shall deliver (i) the officer's certificate described
in paragraph 6.5 and (ii) a signed consent and/or minutes of its
directors approving this Agreement and each matter to be approved
under this Agreement;
a) Torpedo shall deliver (i) the officer's certificate described in
paragraph 5.5, (ii) a signed consent and/or minutes of its
directors approving this Agreement and each matter to be approved
under this Agreement and (iii) a certified check in the amount of
$50,000 payable to e Nutrition, as described in paragraph 5.8,
above.
7.2 OWNERSHIP OF E NUTRITION. Following the Closing, the common stock
ownership of e Nutrition, shall be as follows:
Torpedo Stockholders: 8,000,000 shares of e Nutrition
e Nutrition Stockholders: 1,999,999 shares of e Nutrition
ARTICLE VIII
COVENANTS SUBSEQUENT TO THE CLOSING DATE
8.1 REGISTRATION AND LISTING. As soon as practicable following the
Closing Date, the newly constituted executive officers and directors of e
Nutrition shall use their best efforts to:
a) List e Nutrition's common stock in Standard & Poor's OTC or
corporate manual;
a) Maintain a continuous listing of e Nutrition's common stock on
the Electronic Bulletin Board.
ARTICLE IX
MISCELLANEOUS
9.1 CAPTIONS AND HEADINGS. The article and paragraph headings
throughout this Agreement are for convenience and reference only and shall not
define, limit or add to the meaning of any provision of this Agreement.
9.2 NO ORAL CHANGE. This Agreement and any provision hereof may not be
waived, changed, modified or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any such waiver, change,
modification or discharge is sought.
9.3 NON-WAIVER. The failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants
or conditions. No waiver by any party of one breach by another party shall be
construed as a waiver with respect to any other subsequent breach.
9.4 TIME OF ESSENCE. Time is of the essence of this Agreement and of
each and every provision hereof.
9.5 ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings.
9.6 CHOICE OF LAW. This Agreement and its application shall be governed
by the laws of the state of Nevada.
9.7 COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.8 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
e Nutrition:
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e Nutrition, Inc.
000 X. 000 Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx Xxxxx, President
Torpedo:
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Torpedo Sports USA, Inc.
0000 XXX Xxxx., Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, Chief Financial Officer
9.9 BINDING EFFECT. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
9.10 MUTUAL COOPERATION. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
9.11 FINDERS. The parties hereto represent that no finder has brought
about this Agreement, and no finder's fee has been paid or is payable by either
party.
9.12 ANNOUNCEMENTS. The parties will consult and cooperate with each
other as to the timing and content of any public announcements regarding this
Agreement.
9.13 EXPENSES. Each party will pay its own legal, accounting and other
out-of-pocket expenses incurred in connection with this Agreement, if this
Agreement is closed. In the event this Agreement is not closed for any reason
whatsoever, including e Nutrition's good faith election not to proceed, then
Torpedo shall be responsible to pay the legal fees and out-of-pocket expenses
actually incurred by e Nutrition in connection with this Agreement, not to
exceed $10,000, and such amount shall liquidate and satisfy all of Torpedo and
the Torpedo Stockholders' liability with respect to any claims, obligations or
liabilities arising out of this Agreement. e Nutrition acknowledges that Torpedo
has deposited $10,000 in the trust account of e Nutrition's counsel to fund this
obligation, which sum will be paid over to e Nutrition's counsel on the Closing
Date. Torpedo acknowledges that e Nutrition's counsel has no client-attorney
relationship or fiduciary responsibility to Torpedo.
9.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements of the parties set forth in this Agreement
or in any instrument, certificate, opinion or other writing providing for in it,
shall survive the Closing, including but not limited to the covenants set forth
in Article VIII, above, and this Article IX for a period of 18 months.
9.15 EXHIBITS. As of the execution hereof, the parties have provided
each other with the Exhibits described herein. Any material changes to the
Exhibits shall be immediately disclosed to the other party.
9.16 LEGAL COUNSEL. e Nutrition has been represented by Xxxx X. Agron,
Esq. in connection with this Agreement. Torpedo has been represented by LeBaron
Law Offices in connection with this Agreement.
In witness whereof, the parties have executed this Agreement on the
date indicated above.
e NUTRITION, INC. TORPEDO SPORTS USA, INC.
By /s/ Xxxxxx X. Xxxxx By /s/ Xxxxxx X. Shake
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Xxxxxx X. Xxxxx Xxxxxx X. Shake
Chief Executive Officer President
