EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of May 14, 1999,
is by and among Pac-Rim Consulting, Inc., a Nevada corporation ("Pac-Rim"),
Xxxxxx Xxxxxxx, a principal of Pac-Rim (the "Pac-Rim Principal"), Telemonde
Investments Limited, an International Business Company incorporated under the
laws of the British Virgin Islands ("Telemonde"), and Rhone Financial Indemnity
Re Limited, an Irish Company and the sole registered member of Telemonde (the
"Telemonde Member").
WITNESSETH:
WHEREAS, Pac-Rim desires to issue, and Telemonde desires to purchase,
shares of common stock of Pac-Rim;
WHEREAS, the Telemonde Member owns all of the issued and outstanding
registered ordinary shares of Telemonde and desire to sell to Pac-Rim, and Pac-
Rim desires to purchase, all of the registered shares of Telemonde.
NOW, THEREFORE, in consideration of the promises, the mutual covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
I. TRANSFER OF SHARES
1.1 Transfer of Shares; Closing. In accordance with the terms and
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conditions set forth herein, on the Closing Date (as hereinafter defined), the
Telemonde Member shall transfer, convey, assign and deliver, and Pac-Rim shall
purchase, all of the issued and outstanding ordinary shares (the
"Telemonde Shares") of Telemonde, $1 par value per share (the "Telemonde
Stock"), free and clear of any and all liens, claims and encumbrances
whatsoever.
1.2 Consideration; Exchange of Certificates. As of the Closing Date (as
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hereinafter defined) and subject to the provisions of Sections 6 and 7, in
exchange for certificates representing the Telemonde Shares, the Telemonde
Member will receive from Pac-Rim an aggregate consideration of 35,297,000
restricted shares (the "Pac-Rim Shares") of Pac-Rim common stock, $.001 par
value per share. The Pac-Rim Shares shall rank pari passu with the issued and
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outstanding shares of Pac-Rim Common Stock (as defined herein).
1.3 The Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing"), upon the satisfaction of all of the conditions set
forth in Sections 6 and 7 hereof, or the waiver thereof, shall occur May 14,
1999 (the "Closing Date").
1.4 Deliveries at Closing. At the Closing, the Telemonde Member shall
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deliver to Pac-Rim the various certificates, including without limitation stock
certificates representing the Telemonde Shares, together with accompanying stock
transfer powers or instruments of assignment, duly endorsed in blank. At the
Closing, Pac-Rim shall deliver to Telemonde and the Telemonde Member the various
certificates, including without limitation stock certificates representing Pac-
Rim Shares.
II. REPRESENTATIONS AND WARRANTIES OF TELEMONDE
AND THE TELEMONDE MEMBER
Telemonde and the Telemonde Member, jointly and severally, hereby represent
and warrant to Pac-Rim and the Pac-Rim Principal as follows:
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2.1 Organization. Telemonde is a corporation duly organized, validly
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existing and in good standing under the laws of the British Virgin Islands.
Telemonde and the Telemonde Member have the power and authority to enter into
and perform the purchase of the Pac-Rim Shares, the sale of Telemonde Stock, and
to consummate the transactions contemplated by this Agreement.
2.2 Authority. Telemonde and the Telemonde Member have full power and
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authority to enter into this Agreement and to consummate the transactions
provided for herein, and the execution and delivery of this Agreement, and the
other documents and instruments specified herein, and the consummation of the
transactions provided for herein by Telemonde and the Telemonde Member have been
duly and validly authorized by all necessary action on the part of Telemonde and
the Telemonde Member and are in compliance with applicable law. This Agreement
constitutes the valid and binding agreement on the part of Telemonde and the
Telemonde Member, enforceable against them in accordance with its terms.
2.3 Absence of Violations or Conflicts. The execution and delivery of
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this Agreement and the consummation by Telemonde and the Telemonde Member of the
transactions contemplated herein (a) will not constitute a violation of, be in
conflict with, constitute a default under or result in the creation or
imposition of any security interest, lien or other encumbrance or adverse claim
upon any of Telemonde's assets under (i) any contract, agreement, commitment or
understanding to which Telemonde or the Telemonde Member is a party, to which
either of them is subject or by which either of them is bound, (ii) any
applicable judgment, decree or order of any court or governmental agency or
(iii) any applicable statute, law, rule, regulation, release or other official
pronouncement and (b) will not create, or cause the acceleration of the maturity
of, any debt, obligation or liability of Telemonde or the Telemonde Member.
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2.4 Capital Stock. The authorized capital stock of Telemonde consists of
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50,000 ordinary shares, par value U. S. $1.00 per share, of which as of May 14,
1999, 35,297 ordinary shares of Telemonde were duly authorized and validly
issued and outstanding, fully paid and nonassessable, and no shares of Telemonde
Common Stock were held in the treasury of Telemonde. Except as set forth on
Schedule 2.4, the Telemonde Member is and will be on the Closing Date the record
and beneficial owner and holder of the Telemonde Shares, free and clear of any
charge, claim, equitable interest, lien, option, pledge, security interest,
right of first refusal, or restriction of any kind, including any restriction on
use, voting, transfer, receipt of income, or exercise of any other attribute of
ownership. Other than the Telemonde Shares, no shares of Telemonde Stock have
been issued, and Telemonde has no commitments to issue or sell any shares of
Telemonde Stock or any other securities or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for or acquire
from Telemonde, any shares of Telemonde Stock, and no securities or obligations
evidencing such rights are outstanding.
III. REPRESENTATIONS AND WARRANTIES
OF PAC-RIM AND THE PAC-RIM PRINCIPAL
Pac-Rim and the Pac-Rim Principal, jointly and severally, hereby represent
and warrant to Telemonde and the Telemonde Member as follows:
3.1 Organization and Standing; Subsidiaries. Pac-Rim is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Nevada and has full corporate power to carry on its business as it is
now being conducted and to own or hold under lease the assets it now owns or
holds under lease and to issue the Pac-Rim Shares, and to consummate the
transactions contemplated by this Agreement. Pac-Rim does not own any
subsidiaries.
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3.2 Capitalization of Pac-Rim. Pac-Rim's entire authorized capital stock
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consists of 100,000,000 shares of Pac-Rim common stock $.001 par value per
share, of which 24,000,000 shares are issued and outstanding (the "Pac-Rim
Common Stock"), and no shares of Pac-Rim common stock, $.001 par value per share
are held in the treasury of Pac-Rim. All the issued and outstanding shares of
Pac-Rim Common Stock have been duly authorized and are validly issued and are
fully paid and non-assessable, free of any preemptive rights, and are owned by
those shareholders in those amounts indicated under their respective names on
Exhibit A attached hereto. Each of the Pac-Rim shareholders has good and
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marketable title to Pac-Rim Common Stock owned by him or it, free of any liens,
restrictions or encumbrances of any kind. Pac-Rim is not a party to or bound by
any options, calls, contracts or commitments of any character relating to any
issued or unissued stock or any other equity security issued or to be issued by
Pac-Rim. None of the shares of Pac-Rim Common Stock was issued in violation of
the Securities Act of 1933, as amended (the "1933 Act"), or any regulation or
rule promulgated thereunder, or any other federal or state law relating to the
sale and issuance of securities. All of the shares of Pac-Rim Common Stock were
issued pursuant to Rule 504 of the 1933 Act, and are thus freely tradeable
securities. Except as set forth in Schedule 3.2, none of the shares of Pac-Rim
Common Stock are "restricted securities" within the meaning of Rule 144 of the
1933 Act. As of the Closing, the Pac-Rim Shares will be duly and validly
authorized and issued, fully paid and nonassessable, and free of any preemptive
rights. The sale and issuance of Pac-Rim Shares will not violate the 1933 Act or
any regulation or rule promulgated thereunder, or any other federal or state law
relating to the sale and issuance of the Pac-Rim Shares. The Pac-Rim Common
Stock is not subject to the provisions of Nevada Revised Statute 78.378 through
78.3793 (the Acquisition of Controlling Interest Statute).
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3.3 Financial Statements. Pac-Rim has delivered to Telemonde copies of
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Pac-Rim's audited financial statements for the fiscal year 1998. These
financial statements are true and complete in all respects, have been prepared
in accordance with generally accepted accounting principles consistently
followed throughout the period covered by such statements (except as may be
stated in the explanatory notes to such statements), and present fairly the
financial position and results of operations of Pac-Rim at the dates of such
statements and for the periods covered thereby.
3.4 No Undisclosed Liabilities. Except as and to the extent reflected or
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reserved against in the consolidated balance sheets included within Pac-Rim's
consolidated financial statements referred to in Section 3.3 of this Agreement,
at the date of such statements, Pac-Rim had no liabilities or obligations
(whether accrued, absolute or contingent), of the character which, under
generally accepted accounting principles, should be shown, disclosed or
indicated in a consolidated balance sheet of Pac-Rim or explanatory notes or
information supplementary thereto, including, without limitation, any
liabilities resulting from failure to comply with any law or any federal, state
or local tax liabilities due or to become due whether (a) incurred in respect of
or measured by income for any period prior to the close of business on such
dates, or (b) arising out of transactions entered into, or any state of facts
existing, prior thereto.
3.5 Absence of Certain Changes, Events or Conditions. Since November 16,
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1998, there has not been any change in Pac-Rim's consolidated financial
position, results of operations, assets, liabilities, net worth or business,
other than changes in the ordinary course of business which have not been
materially adverse. Since November 16, 1998, Pac-Rim has not experienced any
event or condition of any character (whether or not covered by insurance) which
has adversely
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affected or will or might so affect its respective properties, businesses,
financial positions, results of operations, or net worth.
3.6 Title to Leasehold. The leases and other agreements or instruments
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under which Pac-Rim holds, leases or is entitled to the use of any real
property or personal property, are set forth in Schedule 3.6, and are in full
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force and effect, and all rentals, royalties or other payments payable
thereunder prior to the date hereof have been duly paid. All "buy-out" prices
under operating or capital leases are shown on Schedule 3.6, regardless as to
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whether the lessee has any obligation to purchase such property. True and
correct copies of such leases and agreements, together with all amendments, are
attached to this Agreement as part of Schedule 3.6. No default or event of
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default exists, and no event which, with notice or lapse of time or both, would
constitute a default, has occurred and is continuing, under the terms or
provisions, express or implied, of any of such lease, agreement or other
instrument or under the terms or provisions of any agreement to which any of
such properties is subject, nor has Pac-Rim received notice of any claim of such
default (whether material or not), nor, has Pac-Rim failed to comply in any
respect with any provision or condition of any such lease, agreement or other
instrument. Pac-Rim has not received a notice of violation of any applicable
law, ordinance, regulation, order or requirement relating to its operations or
its owned or leased properties.
3.7 Title to Assets. Pac-Rim owns and has good, marketable and insurable
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title to all of its assets, none of which are subject to any mortgage, pledge,
lien, security interest or other encumbrance.
3.8 Litigation. Except as described on Schedule 3.8 , there is no claim,
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controversy, legal action, mediation, arbitration, non-insured workers'
compensation claim, litigation, proceeding
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or governmental investigation pending or, threatened or in prospect, against or
relating to Pac-Rim, its respective properties or business, or the transactions
contemplated by this Agreement. All litigation and claims identified on Schedule
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3.8 are covered by Pac-Rim's insurance and are being defended by and at the cost
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of Pac-Rim's insurance carrier. Except as disclosed on Schedule 3.8, Pac-Rim is
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not subject to or bound by any order of any court, regulatory commission, board
or administrative body entered in any proceeding to which it is a party or of
which Pac-Rim has knowledge.
3.9 Intangible Property. Except as described on Schedule 3.9, Pac-Rim
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owns all of the rights in and to all trademarks, service marks, trade names,
logos, processes, systems, inventions, writings, or methods, whether or not
patentable or copyrightable, which are set forth on Schedule 3.9, free of any
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obligations to any third parties, free from any security interest or other lien
or encumbrance, and free of the rightful claims of any third party by way of
infringement. Pac-Rim has no knowledge of any facts which negatively impacts
the ability of Telemonde from obtaining copyrights or trademarks on all
otherwise copyrightable material or the ability of Telemonde to obtain worldwide
trademark rights in its products. The conduct of the business of Pac-Rim as now
conducted does not and will not conflict with patents, patent rights, licenses,
trademarks, trademark rights, trade names, trade name rights, service marks,
service xxxx rights, copyrights or trade dress of others in any way likely to
affect adversely the business, assets or condition, financial or otherwise, of
Pac-Rim. Except as described on Schedule 3.9, no other person or entity has
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heretofore used or now uses any trademark, trade name or other intangible
property owned by or licensed to Pac-Rim, except as duly licensed by Pac-Rim
under an agreement disclosed in Schedule 3.9. No
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material infringement of any proprietary right owned by, or licensed by or to,
Pac-Rim known to Pac-Rim.
3.10 [Open]
3.11 Government and Other Consents. No consent, authorization or approval
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of, or exemption by, or filing with any governmental, public or self-regulating
body or authority is required by Pac-Rim, the Pac-Rim Principal or any
shareholder of Pac-Rim for consummation of this Agreement or any of the
instruments or agreements herein referred to, or the taking of any action herein
contemplated.
3.12 Compliance. Pac-Rim has all governmental licenses, permits, approvals
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and other authorizations, and have made all filings and registrations, which are
necessary in order to enable them to conduct its business in all respects. Pac-
Rim heretofore has delivered to Telemonde Schedule 3.12 which fairly and
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accurately summarizes or lists all material licenses, permits, approvals,
authorizations and regulatory matters relating to the business of Pac-Rim. Pac-
Rim has complied with, and is in compliance with, all laws, regulations and
ordinances which are applicable to its business.
3.13 Labor Relations. Pac-Rim has been and is in compliance with all
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federal and state laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and have not engaged in, and are
not engaging in, any unfair labor practice. There is no collective bargaining
agreement which is binding on Pac-Rim, and Pac-Rim has not experienced, and is
not experiencing, any material labor stoppage, concerted activity or other labor
difficulty; and Pac-Rim has no employment or consulting agreements.
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3.14 No Conflict with Other Documents. Except as described in Schedule
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3.14, neither the execution and delivery of this Agreement nor the carrying out
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of the transactions contemplated hereby will result in any violation,
termination or modification of, or be in conflict with, Pac-Rim's charter or
organizational documents or bylaws, any terms of any contract or other
instrument to which Pac-Rim or is a party, or any judgment, decree or order
applicable to Pac-Rim or result in the creation of any lien, charge or
encumbrance upon any of the properties or assets of Pac-Rim.
3.15 Company Authority. The execution, delivery and performance of this
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Agreement by Pac-Rim and by the Pac-Rim Principal have been duly authorized and
approved by the Board of Directors and shareholders of Pac-Rim and this
Agreement is a valid, legally binding and enforceable obligation of Pac-Rim and
the Pac-Rim Principal. This Agreement, the issuance of the Pac-Rim Common
Stock, the purchase of the Telemonde Common Stock and the other transactions
contemplated hereunder have been approved by the Board of Directors and
shareholders of Pac-Rim, and all corporate authorizations required for
consummation of the transactions contemplated by this Agreement have been
received and continue to be in full force and effect. Upon satisfaction of all
conditions contained herein, this Agreement will result in the valid, legally
binding and enforceable obligation of Pac-Rim and the Pac-Rim Principal.
3.16 Contracts. Except as shown on Schedule 3.16, Pac-Rim is not a party
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to or subject to: (a) any employment contract with any officer, consultant,
director or employee; (b) any plan or contract or arrangement providing for
bonuses, pensions, options, deferred compensation, retirement payments, profit
sharing, or the like; (c) any contract or agreement with any labor union; (d)
any lease of real or personal property; (e) any agreement for the purchase, sale
or other disposition of any materials, equipment, supplies or inventory; (f) any
instrument creating a lien or evidencing or
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related to indebtedness for borrowed money; (g) any franchise, manufacturer's
representative, distributorship or similar agreement; (h) any contract
containing covenants not to enter into or consummate the transactions
contemplated hereby or which will be terminated or modified by the carrying out
of such transactions; or (i) any other contract or agreement not of the type
covered by any of the other specific items of this section. Each of the
contracts, instruments, and other documents described on Schedule 3.16 is valid
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and in full force and effect, and a true and complete copy thereof heretofore
has been delivered to Telemonde. Pac-Rim is not in default, or alleged to be in
default, in any respect under any of the contracts, instruments, obligations or
other documents to which it is a party or by which it is bound. Except as shown
on Schedule 3.16, the issuance of Pac-Rim Common Stock and the transactions
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contemplated by this Agreement will not cause a default under, or provide any
right of termination with respect to, any contract, instrument, obligation or
other document to which Pac-Rim is a party or by which Pac-Rim is bound. No
party with whom Pac-Rim has an agreement is in default thereunder in any
respect.
3.17 Tax Matters. The provisions made for taxes on the balance sheet of
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Pac-Rim contained in the 1998 financial statements referred to in Section 3.3 of
this Agreement are sufficient for the payment of all unpaid federal, state,
county, local and other taxes of Pac-Rim, whether or not disputed. The federal
income tax returns of Pac-Rim has been audited by the Internal Revenue Service
(or are no longer subject to audit) for all open years to and including 1998.
There are no proposed additional taxes, interest or penalties with respect to
any year examined or not yet examined. Pac-Rim has provided to Telemonde true
and complete copies of the federal and state income tax returns of Pac-Rim for
the year ended 1998, together with true and complete copies as filed of all
reports of any taxing authority relating to examinations thereof which have been
delivered
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to Pac-Rim. Each such tax return was prepared in accordance with applicable law
and properly reflect the liability for taxes of Pac-Rim to the jurisdiction to
which such return is made for the period covered thereby. Pac-Rim has not
entered into any agreements extending the statute of limitations with respect to
any federal or state taxes.
3.18 Title to Real and Personal Properties; Absence of Liens and
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Encumbrances, Etc. Pac-Rim has good, marketable and insurable title to all its
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properties and assets, real and personal (including those properties and assets
reflected in the consolidated balance sheets contained in the 1998 financial
statements referred to in Section 3.3 of this Agreement except as sold or
otherwise disposed of in the ordinary course of business since the date
thereof), in each case free and clear of all liens and encumbrances, except
those reflected in such financial statements or in the notes to such financial
statements, the lien of current taxes not yet due and payable and such
imperfections of title, easements and encumbrances, if any, as are not
substantial in character, amount or extent, and do not detract from the value,
or interfere with the present or anticipated business use, of the properties
subject thereto or affected thereby, or impair business operations. Pac-Rim is
not in violation of any laws, judgment, order, decree, regulation or rule of any
court or governmental authority applicable to any of them; and the business
operations of Pac-Rim are in compliance with all applicable building codes,
environmental, zoning and land use laws, and other local, state and federal
licensing and permitting requirements. Pac-Rim has not received any notice of
violation of any applicable zoning laws, orders, regulations, or requirements
relating to its operations or its properties which has not been complied with,
nor any proposed changes in any such laws, orders or regulations which might
have an adverse effect on its business. There is no threatened or impending
condemnation of any of the assets of Pac-Rim or any other properties of Pac-Rim
by any governmental authority.
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3.19 Condition of Facilities. The structures and equipment comprising the
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business of Pac-Rim and owned, operated or leased by Pac-Rim are presently
adequate for the operations for which they are being used; such facilities,
structures and equipment are structurally sound and in good repair and operating
condition, normal wear and tear excepted; and Pac-Rim is not in violation of any
applicable building, zoning, antipollution, environmental, health, safety,
manufacturing or other laws, ordinance or regulation in respect of such
facilities, structures or equipment, and Pac-Rim has not received any notice
alleging such a violation. There are no pending or contemplated eminent domain
proceeding affecting such facilities, structures or equipment or any part
thereof and Pac-Rim has not received notice of any such eminent domain
proceeding. Pac-Rim has not received notice of any pending or contemplated
proceedings or public improvements which could or might result in the levy of
any special tax or assessment against facilities, structures or equipment. There
are no outstanding requirements or recommendations by fire underwriters, rating
boards or insurance companies requiring or recommending any repairs or work to
be done with reference to such facilities, structures or equipment.
3.20 Environmental Matters. During the period of time that Pac-Rim or any
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entity controlled or affiliated with Pac-Rim has owned or controlled the
business operations, and the properties on which the business operations of Pac-
Rim are conducted has not been used prior to the Closing Date for the disposal
of any toxic or hazardous waste, material or substance as the terms "hazardous
waste," "hazardous substance," hazardous material" or "toxic substance" are
defined in the Comprehensive Environmental Response, Compensation and Liability
Act, the Hazardous Materials Transportation Act, the Resource Conservation and
Recovery Act, any applicable state law or any other applicable environmental law
or rules and regulations promulgated thereunder nor has
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any "release" of such substances occurred on or about any premises of Pac-Rim in
violation of, or requiring "remedial action" under such laws, rules and
regulations, as those terms are defined therein.
3.21 Pension and Employee Benefit Plans. There are no plans in effect for
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pension, profit sharing, deferred compensation, severance pay, bonuses, stock
options, stock purchases, or any other form of retirement or deferred benefit,
or for any health, accident or other welfare plan, in which any employee of Pac-
Rim is entitled to participate.
3.22 Insurance. Schedule 3.22 summarizes the insurance currently carried
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by Pac-Rim in respect of its respective properties and operations, as well as
the assets of Pac-Rim, including, without limitation, information as to limits
of coverage, deductibles, annual premium requirements and expiration dates with
respect to product liability, general liability, umbrella liability, contractual
liability, employers' liability, automobile liability, workers' compensation,
property and casualty, business interruption and other insurance carried by Pac-
Rim. All such insurance continues to be in full force and effect, and Pac-Rim
is in compliance with all requirements and provisions thereof. Except as set
forth on Schedule 3.22, none of the insurance carried by Pac-Rim is subject to
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any retroactive rate or audit adjustments, or co-insurance arrangements. True
and correct copies of all insurance policies relating to such coverage have been
provided by Pac-Rim to Telemonde. There is no reason to believe that any such
insurance coverage will not be renewed upon the expiration thereof at premiums
substantially equivalent to those currently being paid by Pac-Rim. The
insurance coverages heretofore and currently carried by Pac-Rim were and are
consistent with types and amounts of coverages customarily carried by similarly
situated companies.
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3.23 No Pending Transactions. Except for the transactions contemplated by
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this Agreement, Pac-Rim is not a party to or bound by or the subject of any
agreement, undertaking or commitment (i) to merge or consolidate with, or
acquire all or substantially all of the property and assets of, any other
corporation or person, or (ii) to sell, lease or exchange all or substantially
all of its property and assets to any other corporation or person, or (iii) to
sell, transfer or issue any Pac-Rim Common Stock.
3.24 Disclosure. No representation or warranty made by Pac-Rim or the Pac-
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Rim Principal in this Agreement and no statement contained in a certificate,
schedule, list or other instrument or document specified in or delivered
pursuant to this Agreement, whether heretofore furnished to Telemonde or
hereafter required to be furnished to Telemonde, contains or will contain any
untrue statement of a fact or omits or will omit to state any fact necessary to
make the statements contained herein or therein not misleading. All information
relating to the historical and prospective financial position, results of
operations, assets and business of Pac-Rim which is or would be material to the
issuance of Pac-Rim Common Stock to Telemonde has been provided by Pac-Rim to
Telemonde.
3.25 Transactions with Affiliates. Except as disclosed on Schedule 3.25,
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Pac-Rim is not a party to any transaction with any (i) current or former officer
or director of Pac-Rim, or (ii) any parent, spouse, child, brother, sister or
other family relation of any such officer or director or (iii) any corporation
or partnership of which any such officer or director or any such family relation
is an officer, director, partner or greater than 10% shareholder (based on
percentage ownership of voting stock) or (iv) any "affiliate" or "associate" of
any such persons or entities (as such terms are defined in the rules and
regulations promulgated under the 1933 Act), including, without limitation, any
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transaction involving a contract, agreement or other arrangement providing for
the employment of, furnishing of materials, products or services by, rental of
real or personal property from, or otherwise requiring payments to, any such
person or entity.
3.26 SEC Documents. Except for forms filed pursuant to Rule 15c2-11, there
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have been no filings with the Securities and Exchange Commission (the "SEC")
that were required to be filed with the SEC by the Securities Exchange Act of
1934, as amended (the "1934 Act").
3.27 OTC Bulletin Board. The Pac-Rim Common Stock is posted on the OTC
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Bulletin Board, and trading of the Pac-Rim Common Stock has not been suspended
or terminated since the commencement of the posting of Pac-Rim Common Stock on
the OTC Bulletin Board. The OTC Bulletin Board Market Makers for the Pac-Rim
Common Stock are Pacific Xxxxxx Securities, Incorporated, X.X. Xxxxx, W.O.
Xxxxxx & Co., Inc., EBI Securities Corporation, Xxxxxxx X. Xxxxxxx & Co.,
Incorporated, Hill, Thompson, Xxxxx & Co., Inc., X.X. Xxxxxxxx & Co., Inc.,
Xxxxxx Capital, Inc. and Wien Securities Corp.
3.28 Registration Rights. No corporation, general or limited partnership,
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limited liability company, joint venture, trust, association, natural person or
entity of any kind has any right to require the registration of any shares of
Pac-Rim Common Stock or any other securities of Pac-Rim.
3.29 Directors and Officers. No director or officer of Pac-Rim has (a)
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filed a registration statement with the SEC which is the subject of any pending
proceeding or examination under the 1933 Act or is the subject of any refusal
order or stop order thereunder five years prior to the date of this Agreement;
(b) been convicted within five years prior to the date of this Agreement of any
felony or misdemeanor in connection with the purchase or sale of any security or
involving the making of any false filing with the SEC; (c) been subject to any
order, judgment or decree of any
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court of competent jurisdiction temporarily or preliminary restraining or
enjoining, or been subject to any order, judgment or decree of any court of
competent jurisdiction, entered within five years prior to the date of this
Agreement, permanently restraining or enjoining such person from engaging in or
continuing any conduct or practice in connection with the purchase or sale of
any security or involving the making of any false filing with the SEC; (d) been
convicted within ten years prior to the date of this Agreement of any felony or
misdemeanor in connection with the purchase or sale of any security, involving
the making of a false filing with the SEC or arising out of the conduct of the
business of an underwriter, broker, dealer, municipal securities dealer or
investment advisor; (e) been subject to any order, judgment or decree of any
court of competent jurisdiction temporarily or preliminarily enjoining or
restraining or been subject to any order, judgment or decree of any court of
competent jurisdiction entered within five years of the date of this Agreement,
permanently enjoining or restraining such person from engaging in or continuing
any conduct or practice in connection with the purchase or sale of any security,
involving the making of a false filing with the SEC or arising out of the
conduct of the business of any underwriter, broker, dealer, municipal securities
dealer or investment advisor; or (f) been suspended or expelled from membership
in, or suspended or barred from association with a member of an exchange
registered as a National Securities Exchange pursuant to Section 6 of the 1934
Act, an association registration as a National Securities Association under
Section 15A of the 1934 Act or Canadian securities exchange or association for
any act or omission to act constituting conduct inconsistent with just and
equitable principles of trade.
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IV. COVENANTS OF TELEMONDE
AND THE TELEMONDE MEMBER
Telemonde and the Telemonde Member covenant that, except as otherwise
consented to in writing by Pac-Rim and the Pac-Rim Principal after the date of
this Agreement:
4.1 Consents. Telemonde and the Telemonde Member will take all necessary
--------
corporate or other action and use their best efforts to obtain all consents and
approvals required for consummation of the transactions contemplated by this
Agreement.
4.2 Cause Conditions to be Satisfied. Telemonde and the Telemonde Member
--------------------------------
will use their best efforts to cause all of the conditions described in Article
VII of this Agreement to be satisfied (to the extent such matters reasonably are
within its control).
V. COVENANTS OF PAC-RIM AND THE PAC-RIM
PRINCIPAL
Pac-Rim and the Pac-Rim Principal covenant to Telemonde and the Telemonde
Member that, except as otherwise consented to in writing by Telemonde and the
Telemonde Member after the date of this Agreement:
5.1 Conduct of Business. Except as otherwise provided in this Agreement,
-------------------
after the date of this Agreement and on or prior to the Closing Date, with
respect to Pac-Rim (a) its business will be conducted only in the ordinary
course; (b) it will not enter into, adopt or amend any employee pension, profit-
sharing, retirement, insurance, incentive compensation, severance or similar
plan, agreement or arrangement, enter into or amend any employment contracts, or
increase the salaries or compensation of its executive officers or, other than
ordinary increases in salaries in accordance with past practices, of other
employees; (c) it shall not incur any liability for borrowed money, encumber any
of its assets or enter into any agreement relating to the incurrence of
additional debt
18
(other than short term unsecured bank credit in the ordinary course of
operations in accordance with past practices), except in accordance with Section
6.12 of this Agreement; (d) it will use its best efforts to preserve its
business organization intact, to keep available the service of its officers and
employees and to preserve the goodwill of suppliers, customers and others doing
business with it; (e) it will not acquire or agree to acquire by merging or
consolidating with, purchasing substantially all of the assets of, or otherwise,
any business or any corporation, partnership, association or other business
organization or division thereof; (f) it will not enter into or amend any
contract or agreement with any labor union or any lease of real estate or
personal property; (g) it will not enter into any agreement for the purchase,
sale or other disposition, or purchase, sell or dispose of, any equipment,
supplies, inventory, investments or other assets (other than sales of inventory
and purchases of materials and supplies in the ordinary course of business and
in accordance with past practices); (h) it will not compromise or write off any
material account receivable other than by collection of the full recorded amount
thereof; (i) no change shall be made in its charter documents or bylaws; (j) no
change shall be made in the number of shares or terms of its authorized, issued
or outstanding capital stock, nor shall it enter into or grant any options,
calls, contracts or commitments of any character relating to any issued or
unissued capital stock; and (k) no dividend or other distribution or payment
shall be declared or paid in respect of its capital stock.
5.2 Consents. Pac-Rim and the Pac-Rim Principal agree to take all
--------
necessary corporate or other action and to use their best efforts to complete
all filings and obtain all governmental and other consents, permits licenses and
approvals required for consummation of the transactions contemplated by this
Agreement.
19
5.3 Notice of Litigation. Pac-Rim will provide written notice to
--------------------
Telemonde of any litigation, proceeding or governmental investigation which
arises or is threatened or in prospect, after the date of this Agreement and
prior to the Closing, against or relating to Pac-Rim, its respective assets,
properties or businesses, or the transactions contemplated by this Agreement,
setting forth in such notice the facts and circumstances currently available to
Pac-Rim with respect to such litigation, proceeding or investigation.
5.4 Corporate Transactions. Pac-Rim will not seek, and the Pac-Rim
----------------------
Principal will cause Pac-Rim not to seek, the affiliation of Pac-Rim with any
entity other than Telemonde and neither will negotiate or entertain any offer
with respect to the issuance of Pac-Rim Common Stock or the sale of part or all
of the Pac-Rim Common Stock or substantially all of Pac-Rim's assets. Pac-Rim
will not authorize or permit any officer, director or employee of Pac-Rim to, or
any investment banker, attorney, accountant or other representative retained by
Pac-Rim to, solicit or encourage (including by way of furnishing information)
any inquiries or the making of any proposal that is reasonably expected may lead
to the acquisition of part or all of the Pac-Rim Common Stock or substantially
all of its assets by any person other than Telemonde. Pac-Rim promptly will
advise Telemonde orally, followed by written confirmation, of any such inquiries
or proposals.
5.5 Cause Conditions to be Satisfied. Pac-Rim will use its best efforts
--------------------------------
to cause all of the conditions described in Article VI of this Agreement to be
satisfied (to the extent such matters reasonably are within their control).
20
VI. CONDITIONS TO TELEMONDE AND THE
TELEMONDE MEMBER'S OBLIGATIONS
Unless waived by Telemonde and the Telemonde Member in writing in their
sole discretion, all obligations of Telemonde and the Telemonde Member under
this Agreement are subject to the fulfillment, prior to or at the Closing, of
each of the following conditions by Pac-Rim and the Pac-Rim Principal:
6.1 Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Pac-Rim and the Pac-Rim Principal contained in Section 3 of this
Agreement shall be true at and as of the Closing Date, shall be deemed made
again at and as of such date and be true as so made again; Pac-Rim and the Pac-
Rim Principal shall have performed all obligations and complied with all
covenants required by this Agreement to be performed or complied with by them
prior to the Closing; and Telemonde shall have received from Pac-Rim and the
Pac-Rim Principal a certificate or certificates in such reasonable detail as
Telemonde may reasonably request, signed by the Chairman of the Board or
President of Pac-Rim and by the Pac-Rim Principal and dated the date of Closing,
to the foregoing effect.
6.2 Opinion of Counsel. Pac-Rim and the Pac-Rim Principal shall have
------------------
delivered to Telemonde and the Telemonde Member a favorable opinion of its
counsel, Xxxxxxx X. Xxxxxxxx, dated the Closing Date, in form and substance
satisfactory to Telemonde and its counsel.
6.3 Approvals of Governmental Authorities. All consents and approvals
-------------------------------------
necessary or advisable in the opinion of Telemonde's counsel to consummate the
transactions contemplated by this Agreement shall have been received and shall
not contain any provision which, in the judgment of Telemonde, is unduly
burdensome.
21
6.4 No Adverse Proceedings or Events. No suit, action or other proceeding
--------------------------------
against Pac-Rim or Telemonde, or their respective officers or directors, or any
shareholders of Pac-Rim or Telemonde, shall be threatened or pending before any
court or governmental agency in which it will be, or it is, sought to restrain
or prohibit any of the transactions contemplated by this Agreement or to obtain
damages or other relief in connection with this Agreement or the transactions
contemplated hereby.
6.5 Consents and Actions; Contracts. All requisite consents of any third
-------------------------------
parties and other actions which Pac-Rim has covenanted to use its best efforts
to obtain and take shall have been obtained and completed. All contracts and
agreements of Pac-Rim relating to its assets and business, including, without
limitation, all contracts and agreements listed on Schedule 6.5, shall be in
------------
full force and effect and shall not be affected by the consummation of the
transactions contemplated hereby. Pac-Rim shall also have been removed and
discharged from all guaranties, contracts, agreements and commitments relating
to any matter other than the assets and the business specifically and not by way
of limitation the lease with respect to the corporate offices of Pac-Rim shall
have been terminated.
6.6 No Adverse Change. No adverse change in the financial condition,
-----------------
results of operations, assets, liabilities, business or prospects (including any
change resulting from governmental regulations or the loss of any permits,
licenses or franchises) of the business of Pac-Rim shall have occurred between
the date hereof and the Closing Date.
6.7 No Prohibition. No federal, state or local governmental unit, agency,
--------------
body or authority with competent jurisdiction over the subject matter shall have
given official written notice of its intention to institute proceedings to
prohibit the transactions contemplated by this Agreement.
22
6.8 All Approvals. Telemonde shall have obtained all federal, city,
-------------
county and state approvals, licenses and permits required for the operation of
the facilities included in the assets by Telemonde and no such approval shall
have been conditioned upon any structural changes being made to the business or
assets of Pac-Rim or shall have required the expenditure of more than $1,000.
6.9 All Transfers of Intellectual Property. Pac-Rim shall have executed
--------------------------------------
and delivered to Telemonde any and all necessary documents transferring all
intellectual property of Pac-Rim to Telemonde, including without limitation, all
trade names, trade marks, logos and copyrighted materials by Telemonde.
6.10 Resignations. The officers and directors of Pac-Rim, excluding the
------------
Pac-Rim Principal, shall have resigned effective as of the Closing Date. The
Pac-Rim Principal shall resign as an officer and director immediately following
the Closing Date.
6.11 Releases. Pac-Rim, the Pac-Rim Principal and each present and former
--------
officer and director of Pac-Rim shall have executed releases concerning any
claim against Pac-Rim, including any claims for indemnification, contribution or
otherwise arising with respect to this Agreement, the representations,
warranties and agreements contained herein and the transactions contemplated
hereby.
6.12 Other Evidence. Telemonde shall have received from Pac-Rim such
--------------
further certificates and documents evidencing due action in accordance with this
Agreement, including certified copies of proceedings of the board of directors
and shareholders of Pac-Rim, as Telemonde reasonably shall request.
23
6.13 Loan Agreement. Pac-Rim shall have executed the Loan Agreement by and
--------------
between Pac-Rim and Caixa de Credito Agricola Mutuo de Oeiras, C.R.I., Lisbon,
Portugal.
VII. CONDITIONS TO PAC-RIM AND THE PAC-RIM
PRINCIPAL'S OBLIGATIONS
Unless waived by Pac-Rim and the Pac-Rim Principal in writing in their sole
discretion, all obligations of Pac-Rim and the Pac-Rim Principal under this
Agreement are subject to the fulfillment by Telemonde and the Telemonde Member,
prior to or at the Closing, of each of the following conditions:
7.1 Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Telemonde and the Telemonde Member contained in Section 2 of this
Agreement shall be true at and as of the Closing Date, shall be deemed made
again at and as of such date and be true as so made again; Telemonde and the
Telemonde Member shall have performed all obligations and complied with all
covenants required by this Agreement to be performed or complied with by it on
or prior to the Closing; and Pac-Rim and the Pac-Rim Principal shall have
received from Telemonde and the Telemonde Member a certificate or certificates
in such reasonable detail as Pac-Rim may reasonably request, signed by the
President or a Vice President of Telemonde and by the Telemonde Member and dated
the Closing Date, to the foregoing effect.
7.2 No Adverse Proceedings or Events. No suit, action or other proceeding
--------------------------------
against Pac-Rim or Telemonde, or its officers or directors, shall have been
instituted and resulted in entry of a court order (which has not subsequently
been dismissed, terminated or vacated) enjoining, either temporarily or
permanently, the consummation of the transactions contemplated by this
Agreement.
24
7.3 Consents and Actions. All requisite consents of any third parties and
--------------------
other actions which Telemonde and the Telemonde Member have covenanted to use
their best efforts to obtain and take under this Agreement shall have been
obtained and completed.
7.4 Other Evidence. Pac-Rim and the Pac-Rim Principal shall have received
--------------
from Telemonde and the Telemonde Member such further certificates and documents
evidencing due action in accordance with this Agreement, including certified
copies of proceedings of the board of directors of Telemonde, as Pac-Rim and the
Pac-Rim Principal reasonably shall request.
VIII. INDEMNIFICATION
8.1 Survival. The parties agree that the representations and warranties
--------
contained in this Agreement shall survive the Closing and continue to be
binding, regardless of any investigation made at any time by the parties.
8.2 Indemnification of Telemonde and the Telemonde Member. Pac-Rim and
-----------------------------------------------------
the Pac-Rim Principal, jointly and severally, hereby agree to indemnify and hold
harmless Telemonde and the Telemonde Member, and each officer, director,
employee or agent of Telemonde, their respective controlling persons, and their
respective estates, successors, and assigns (each an "Indemnified Party"), from
and against any and all claims, losses, damages, liabilities and expenses
(including, without limitation, settlement costs and any legal or other expenses
for investigating or defending any actions or threatened actions) (the "Losses")
reasonably incurred by such Indemnified Party as a result of:
(a) the untruth, inaccuracy or breach of any representation or
warranty made by Pac-Rim or the Pac-Rim Principal pursuant to Article III of
this Agreement;
25
(b) the nonfulfillment or breach of any covenant, agreement or
obligation of Pac-Rim or the Pac-Rim Principal contained in this Agreement;
(c) any and all amounts of federal, state, and/or local income,
franchise, property, and/or sales and use taxes that my be assessed against
Telemonde with respect to any taxable period(s) ending on or before the date of
this Agreement for which adequate provisions therefor have not been made through
the Closing Date, as reflected on Pac-Rim's books of account and in Pac-Rim
financial statements as of the Closing Date; and the amount(s) of any interest
and/or penalties that may be assessed with respect to said tax assessments;
(d) any matter disclosed on any Schedule; and
(e) any claim or demand by any person asserting any interest in any
share of Pac-Rim Common Stock or seeking dissenters' or appraisal rights or any
other claim in respect to the issuance of Pac-Rim Common Stock.
IX. MISCELLANEOUS
9.1 Brokers and Advisors. Telemonde and Pac-Rim represent and warrant to
--------------------
each other that the transactions contemplated by this Agreement have been
negotiated directly between them and their respective counsel, without the
intervention of any person as a result of any action by them in such a manner as
to give rise to a valid claim against any party hereto for a brokerage
commission, finder's fee, counseling or advisory fee, or like payment, and each
agrees to indemnify the opposite party against any such liability arising from
or through it.
9.2 Expenses. Telemonde shall pay all of its expenses relating to this
--------
Agreement and the transactions contemplated hereby, including fees and
disbursements of its counsel, accountants, investment bankers, and financial
advisors, whether or not the transactions hereunder are
26
consummated; provided, however, that expenses of Pac-Rim and the Pac-Rim
Principal, including but not limited to attorneys' fee, shall not exceed
$25,000.
9.3 Good Faith; Further Assurances; Further Cooperation. The parties to
---------------------------------------------------
this Agreement shall in good faith undertake to perform their obligations under
this Agreement, to satisfy all conditions and to cause the transactions
contemplated by this Agreement to be carried out promptly in accordance with the
terms of this Agreement. Upon the execution of this Agreement and thereafter,
each party shall do such things as may be reasonably requested by the party
hereto in order more effectively consummate or document the transaction
contemplated by this Agreement.
9.4 Notices. All notices, communications and deliveries under this Agreement
-------
shall be made in writing, signed by the party making the same, shall specify the
Section of this Agreement pursuant to which it is given, and shall be deemed
given on the date delivered if delivered in person or on the third business day
after mailed if mailed certified mail (with postage prepaid), return receipt
requested, as follows:
To Telemonde: Telemonde Investments Limited
P. O. Box 71
Craigmuir Xxxxxxxx
Road Town
Tortola, British Virgin Islands
Attn: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
27
With a copy to: X. Xxxxxx Durham, Jr., Esquire
Baker, Donelson, Bearman & Xxxxxxxx
000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
To the Telemonde
Member: Rhone Financial Indemnity Re Limited
0 Xxx xx Xxxxxx
0000 Xxxxx
Xxxx Xxxxxxxxxxx
Attn: Xxxx Xxxxxxx
Facsimile: 00 44 22 776 7963
With a copy to: Gouldens
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx
XX0X 0XX
Attn: Xxxxxxx Xxxxxxxxx
Facsimile: 011-44-171-583-3051
To Pac-Rim: Pac-Rim Consulting, Inc.
#000-000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxxx, Esquire
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
To the Pac-Rim
Principal: Xxxxxx Xxxxxxx
#0000-000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxxx, Esquire
28
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
or to such other representative or to such other address as the parties hereto
may furnish to the other parties in writing. If notice is given pursuant to this
section of a permitted successor or assign of a party of this Agreement, then
notice shall be given as set forth above to such successor or assign of such
party. All such notices, requests, or communications shall be mailed postage
prepaid, certified mail, return receipt requested or delivered personally or by
facsimile copy, and shall be sufficient and effective when delivered to or
received at the address so specified. Any party may change the address at which
it is to receive notice by like written notice to the other.
9.5 Assignment. This Agreement shall be binding upon and shall inure to
----------
the benefit of the parties hereto, and their respective legal representatives,
heirs, successors and permitted assigns. Telemonde shall have the absolute right
to assign its rights and obligations hereunder to an entity owned or controlled
by Telemonde without the prior consent of Pac-Rim or the Pac-Rim Shareholder.
9.6 Captions; Definitions. The titles or caption of articles, sections
---------------------
and subsections contained in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision hereof. The parties
agree to all definitions in this Agreement and in the other introductory
language to this Agreement.
9.7 Controlling Law; Jurisdiction; Amendment; Waiver; Remedies Cumulative;
----------------------------------------------------------------------
Attorneys' Fees.
---------------
29
(a) This Agreement shall be construed and enforced in accordance with
the laws of the State of Nevada, without regard to its conflicts of laws rules.
This Agreement may not be altered or amended except in writing signed by
Telemonde, the Telemonde Member, Pac-Rim and the Pac-Rim Principal. The failure
of any party hereto at any time to require performance of any provisions hereof
shall in no manner affect the right to enforce the same. No waiver by any party
hereto of any condition, or of the breach of any term, provision, warranty,
representation, agreement or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed or construed
as a further or continuing waiver of any such condition or breach or a waiver of
any other condition or of the breach of any other terms, provision, warranty,
representation, agreement or covenant herein contained.
(b) Any action or proceeding against any party hereto relating in any
way to this Agreement or the obligations or any party arising from the
transactions contemplated herein or other documents delivered pursuant hereto
shall be brought and enforced only in the federal and state courts of the State
of New York and the parties irrevocably submit to the jurisdiction of each such
court in respect to any such action or proceeding.
(c) The parties hereto each irrevocably waive, to the fullest extent
permitted by applicable law, any objection that any of them may now or hereafter
have to the laying of venue of any such action or proceeding in the federal and
state courts of the State of New York and any claim that such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(d) If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to
30
recover reasonable attorneys' fees, court costs and all expenses even if not
taxable as court costs (including, without limitation, all such fees, costs and
expenses incident to appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
9.8 Representations and Warranties. The respective representations and
------------------------------
warranties of each party hereto shall not be deemed to be waived or otherwise
affected by any investigation made by any other parties hereto.
9.9 Entire Agreement. This Agreement constitutes the entire agreement
----------------
among the parties hereto with respect to the transactions contemplated and
supersedes all prior agreements, understandings, letter of intent and
negotiations, both written and oral, among the parties with respect thereto.
9.10 Counterparts. This Agreement may be executed by each party upon a
------------
separate copy, and in such case one counterpart of this Agreement shall consist
of enough of such copies to reflect the signatures of all of the parties of this
Agreement. This Agreement shall become effective when one or more counterparts
have been signed by each of the parties to this Agreement and delivered to each
of the other parties to this Agreement. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement or the terms of this Agreement to
produce or account for more than one of such counterparts.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK]
31
IN WITNESS WHEREOF, Telemonde, Pac-Rim, the Telemonde Member, and the Pac-
Rim Principal have caused this Agreement to be duly executed and their
respective seals to be hereunto affixed as of the date first above written.
ATTEST: TELEMONDE INVESTMENTS LIMITED
By: /s/ X. Xxxxxxx /s/ X. Xxxxxxxx
Title: Director Director
[Corporate Seal]
ATTEST: PAC-RIM CONSULTING, INC.
By: /s/ Xxxxxx Xxxxxxx
Title:________________________
[Corporate Seal]
ATTEST: RHONE FINANCIAL INDEMNITY RE
LIMITED
By: /s/ Xxxx Xxxxxxx
32
Title:_________________________
[Corporate Seal]
ATTEST:
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
33
