EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
FI-TEK VII, INC.,
THE FTK INSIDERS,
RONCO ACQUISITION CORPORATION,
AND
RONCO MARKETING CORPORATION
May 20, 2005
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ...................................................................................1
ARTICLE II TRANSACTIONS; TERMS OF MERGER;
MANNER OF CONVERTING SHARES ...................................................................5
2.1 Merger.........................................................................................5
2.2 Time and Place of Closing......................................................................5
2.3 Effective Time and Period Between Closing Date and Effective Time..............................5
2.4 Charter........................................................................................6
2.5 Bylaws.........................................................................................6
2.6 Directors and Officers.........................................................................6
2.7 Conversion of Shares...........................................................................6
2.8 Exchange of Shares.............................................................................7
2.9 Rights of Former RONCO Stockholders............................................................7
2.10 Legending of Shares............................................................................7
2.11 Fractional Shares..............................................................................8
2.12 Lost, Stolen or Destroyed Certificates.........................................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF FTK,
PURCHASER AND THE FTK INSIDERS ............................................................8
3.1 Organization; Standing and Power...............................................................8
3.2 Authorization; Enforceability..................................................................8
3.3 No Violation or Conflict.......................................................................9
3.4 Consents of Governmental Authorities and Others................................................9
3.5 Conduct of Business............................................................................9
3.6 Litigation....................................................................................10
3.7 Brokers.......................................................................................10
3.8 Compliance....................................................................................10
3.9 Charter, Bylaws and Corporate Records.........................................................10
3.10 Subsidiaries and Investments..................................................................10
3.11 Capitalization................................................................................11
3.12 Rights, Warrants, Options.....................................................................11
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3.13 Commission Filings and Financial Statements...................................................11
3.14 Absence of Undisclosed Liabilities............................................................12
3.15 Real Property.................................................................................12
3.16 List of Accounts and Proxies..................................................................12
3.17 Personnel.....................................................................................12
3.18 Employment Agreements and Employee Benefit Plans..............................................12
3.19 Taxes.........................................................................................13
3.20 Material Agreements...........................................................................15
3.21 Guaranties....................................................................................16
3.22 Environmental Matters.........................................................................16
3.23 Absence of Certain Business Practices.........................................................16
3.24 Disclosure....................................................................................16
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF RONCO..............................................17
4.1 Organization..................................................................................17
4.2 Authorization; Enforceability.................................................................18
4.3 No Violation or Conflict......................................................................18
4.4 Consents of Governmental Authorities and Others...............................................18
4.5 Brokers.......................................................................................18
4.6 Charter, Bylaws and Corporate Records.........................................................18
4.7 Subsidiaries and Investments..................................................................18
4.8 Capitalization................................................................................18
4.9 Rights, Warrants, Options.....................................................................18
4.10.....Litigation ...................................................................................19
4.11 Compliance....................................................................................19
4.12 Financial Statements..........................................................................19
4.13 Dilution......................................................................................19
4.14 RONCO Business Operations.....................................................................19
4.15 Disclosure....................................................................................19
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ARTICLE V ADDITIONAL AGREEMENTS ...............................................................20
5.1 Survival of the Representations and Warranties................................................20
5.2 Investigation.................................................................................20
5.3 FTK Disclaimer of Financing...................................................................20
5.4 Indemnification...............................................................................20
5.5 Limitation on RONCO's Indemnification from FTK Insiders.......................................20
5.6 Limitation on RONCO's Indemnification from FTK .........................................21
5.7 FTK and FTK Insider's Indemnification from RONCO for This
Agreement.....................................................................................21
5.8 Limitation on FTK and FTK Insider's Indemnification from RONCO for This
Agreement.....................................................................................21
5.9 FTK and FTK Insider's Indemnification from RONCO for the Financing............................21
5.10 Indemnity Procedure...........................................................................23
5.11 General Release...............................................................................24
ARTICLE VI CLOSING; DELIVERIES; CONDITIONS PRECEDENT ...........................................24
6.1 Closing; Effective Date.......................................................................24
6.2 Deliveries....................................................................................24
6.3 Conditions Precedent to the Obligations of RONCO..............................................26
6.4 Conditions Precedent to the Obligations of FTK................................................27
6.5 Best Efforts..................................................................................28
6.6 Termination...................................................................................28
ARTICLE VII CONDITIONS SUBSEQUENT.........................................................................28
ARTICLE VIII COVENANTS ....................................................................................29
8.1 General Confidentiality.......................................................................29
8.2 Continuing Obligations........................................................................30
8.3 Tax Matters...................................................................................30
8.4......General.......................................................................................30
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ARTICLE IX MISCELLANEOUS .......................................................................31
8.1 Notices.......................................................................................31
8.2 Entire Agreement; Incorporation...............................................................32
8.3 Binding Effect................................................................................32
8.4 Assignment....................................................................................32
8.5 Waiver and Amendment..........................................................................32
8.6 No Third Party Beneficiary....................................................................32
8.7 Severability..................................................................................32
8.8 Expenses......................................................................................33
8.9 Headings......................................................................................33
8.10 Other Remedies; Injunctive Relief.............................................................33
8.11 Counterparts..................................................................................33
8.12 Remedies Exclusive............................................................................33
8.13 Jurisdiction and Venue........................................................................33
8.14 Participation of Parties......................................................................34
8.15 Further Assurances............................................................................34
8.16 Publicity.....................................................................................34
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of May 20,
2005, by and among RONCO MARKETING CORPORATION, a Delaware corporation ("RONCO"
or the "Surviving Corporation"); FI-TEK VII, INC., a Delaware corporation
("FTK"); THE FTK INSIDERS (as defined in Article I) and RONCO ACQUISITION
CORPORATION, a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
Preamble
The respective Boards of Directors of RONCO, FTK and Purchaser are of
the opinion that the transactions described herein are in the best interests of
the parties to this Agreement and their respective stockholders. This Agreement
provides for the acquisition of RONCO by FTK pursuant to the merger of Purchaser
with and into RONCO. At the effective time of such merger, the outstanding
shares of the capital stock of RONCO shall be converted into the right to
receive shares of the common stock of FTK. As a result, the stockholders of
RONCO shall become stockholders of FTK and RONCO shall continue to conduct its
business and operations as a wholly owned subsidiary of FTK. The transactions
described in this Agreement are subject to the satisfaction of certain other
conditions described in this Agreement. It is the intention of the parties to
this Agreement that the Merger for federal income tax purposes shall qualify as
a transaction described in Section 351 of the Code and/or qualify as a
"reorganization" within the meaning of Section 368(a) of the Code. The Board of
Directors of RONCO, FTK and Purchaser have approved and adopted this Agreement
as a plan of reorganization within the meaning of the provisions of Section 368
of the Code.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE I.........
Definitions
In addition to terms defined elsewhere in this Agreement, the following
terms when used in this Agreement shall have the meanings indicated below:
"Affiliate" shall mean with respect to a specified Person, any other
Person which, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with such Person, and
without limiting the generality of the foregoing, includes, with respect to a
Person (a) any other Person which beneficially owns or holds ten percent (10%)
or more of any class of voting securities or other securities convertible into
voting securities of such Person or beneficially owns or holds ten percent (10%)
or more of any other equity interests in such Person, (b) any other Person with
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respect to which such Person beneficially owns or holds ten percent (10%) or
more of any class of voting securities or other securities convertible into
voting securities of such Person, or owns or holds ten percent (10%) or more of
the equity interests of the other Person, and (c) any director or senior officer
of such Person. For purposes of this definition, the term "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" shall mean this Agreement and Plan of Merger together with
all exhibits and schedules referred to herein, which exhibits and schedules are
incorporated herein and made a part hereof.
"Asset Purchase Agreement" shall mean that certain Asset Purchase
Agreement dated December 10, 2004 between Ronco Marketing Corporation ("RMC"),
Ronco Inventions, LLC, Popeil Inventions, Inc., RP Productions, Inc. and Xxxxxx
X. Xxxxxx.
"Certificates" shall have the meaning set forth in Section 2.8.
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall mean the date that the Closing takes place.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Consideration Shares" shall have the meaning set forth in Section
2.7(c).
"Effective Time" shall have the meaning set forth in Section 2.3.
"Employee Benefit Plans" shall have the meaning set forth in Section
3.18.
"Environmental Laws" shall have the meaning set forth in Section 3.22.
"ERISA" shall have the meaning set forth in Section 3.18.
"Escrow Account" shall mean the escrow account at Sterling Bank in
connection with the Financing.
"Exchange Ratio" shall have the meaning set forth in Section 2.7(c).
"Financial Statements of FTK" shall mean (i) the unaudited balance
sheet and the unaudited statements of income, cash flow and retained earnings of
FTK for the nine (9) month period ended March 31, 2005, and (ii) the audited
balance sheet and the audited statements of income, cash flow and retained
earnings of FTK for the fiscal year ended June 30, 2004, including in each such
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case any related notes, each prepared according to GAAP consistently applied
with prior periods, except as set forth on Schedule 3.13.
"Financing" shall mean that certain offering of shares of Ronco
Corporation (post Ronco Asset Purchase and the Merger) pursuant to the Private
Placement Memorandum, in which Ronco Corporation shall raise not less than
$50,000,000.
"FTK" shall mean FI-TEK VII, INC., a Delaware corporation.
"FTK Common Stock" shall mean the shares of common stock, $0.00001 par
value per share, of FTK, as further described in Section 3.11.
"FTK Insiders" shall mean Xx. Xxxxx Xxxxxx and Mr. Xxx Xxxxxx.
"GAAP" shall have the meaning set forth in Section 3.13.
"Guaranty" shall mean, as to any Person, all liabilities or obligations
of such Person, with respect to any indebtedness or other obligations of any
other Person, which have been guaranteed, directly or indirectly, in any manner
by such Person, through an agreement, contingent or otherwise, to purchase such
indebtedness or obligation, or to purchase or sell property or services,
primarily for the purpose of enabling the debtor to make payment of such
indebtedness or obligation or to guarantee the payment to the owner of such
indebtedness or obligation against loss, or to supply funds to or in any manner
invest in the debtor.
"Indemnified Party" shall have the meaning set forth in Section 5.4.
"Indemnifying Party" shall have the meaning set forth in Section 5.4.
"Intellectual Property" shall mean the rights to any patent, trademark,
copyright, service xxxx, invention, software, software code, trade secret,
technology, product, composition, formula, method or process.
"Investments" shall mean, with respect to any Person, all advances,
loans or extensions of credit to any other Person (except for extensions of
credit to customers in the ordinary course of business), all purchases or
commitments to purchase any stock, bonds, notes, debentures or other securities
of any other Person, and any other investment in any other Person, including
partnerships or joint ventures (whether by capital contribution or otherwise) or
other similar arrangement (whether written or oral) with any Person, including,
but not limited to, arrangements in which (i) the first Person shares profits
and losses of the other Person, (ii) any such other Person has the right to
obligate or bind the first Person to any third party, or (iii) the first Person
may be wholly or partially liable for the debts or obligations of such
partnership, joint venture or other entity.
"Knowledge" shall mean, in the case of any Person who is an individual,
knowledge that a reasonable individual under similar circumstances would have
after such reasonable investigation and inquiry as such reasonable individual
would under such similar circumstances make, and in the case of a Person other
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than an individual, the knowledge that a senior officer or director of such
Person, or any other Person having responsibility for the particular subject
matter at issue of such Person, would have after such reasonable investigation
and inquiry as such senior officer, director or responsible Person would under
such similar circumstances make.
"Law" and "Laws" shall have the meaning set forth in Section 3.19.
"Liabilities" shall have the meaning set forth in Section 3.14.
"Litigation" shall have the meaning set forth in Section 3.6.
"Material Adverse Effect" shall mean any event or condition of any
character which has had or could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), results of operations,
assets, liabilities, properties, business or prospects of FTK, Purchaser or
RONCO, as applicable.
"Merger" shall have the meaning set forth in Section 2.1.
"Merger Consideration" shall have the meaning set forth in Section
2.7(c).
"Outstanding FTK Common Stock" shall have the meaning set forth in
Section 3.11.
"Outstanding RONCO Common Stock" shall have the meaning set forth in
Section 4.8.
"Periodic Reports" shall mean the Forms 10KSB, 10QSB, 8K, and other
Commission filings required by the Securities Exchange Act of 1934, as amended
and Securities Act of 1933, as amended which have been filed by FTK with the
Commission for the period beginning at FTK's inception and ending at the Closing
Date.
"Person" shall mean any natural person, corporation, unincorporated
organization, partnership, association, limited liability company, joint stock
company, joint venture, trust or government, or any agency or political
subdivision of any government or any other entity.
"Private Placement Memorandum" means that certain Confidential Private
Placement Memorandum dated May 23, 2005.
"Purchaser" shall mean RONCO Acquisition Corporation, a Delaware
corporation.
"Purchaser Documents" shall have the meaning set forth in Section 3.2.
"RONCO" shall mean RONCO Marketing Corporation, a Delaware corporation.
"RONCO Common Stock" shall have the meaning set forth in Section 4.8.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Subsidiary" of any Person shall mean any Person, whether or not
capitalized, in which such Person owns, directly or indirectly, an equity
interest of more than fifty percent (50%), or which may effectively be
controlled, directly or indirectly, by such Person.
"Surviving Corporation" shall mean RONCO as the surviving corporation
resulting from the Merger.
"Tax" and "Taxes" shall have the meaning set forth in Section 3.19.
"Tax Returns" shall have the meaning set forth in Section 3.19.
The words "hereof", "herein" and "hereunder" and the words of similar
import shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The terms defined in the singular shall have a
comparable meaning when used in the plural and vice versa.
ARTICLE II
Transactions; Terms of Merger; Manner of Converting Shares
2.1 Merger. Subject to the terms and conditions of this Agreement, at
the Effective Time (as defined below), Purchaser shall be merged with and into
RONCO in accordance with the provisions of the General Corporation Laws of the
State of Delaware and with the effect provided for therein (the "Merger"). As a
result of the Merger, the separate corporate existence of Purchaser shall cease
and RONCO shall be the Surviving Corporation resulting from the Merger and shall
become a wholly owned Subsidiary of FTK and shall continue to be governed by the
laws of the State of Delaware. The Merger shall be consummated pursuant to the
terms of this Agreement, which has been approved and adopted by the respective
Boards of Directors of RONCO, Purchaser and FTK, by FTK, as the sole stockholder
of Purchaser, and by the stockholders of RONCO.
2.2 Time and Place of Closing. The closing of the transactions
contemplated hereby (the "Closing") will take place at 10:00 A.M. on the date
following the satisfaction or waiver of all conditions to the obligations of the
Parties to consummate the transactions contemplated hereby as set forth in
Article VI (other than conditions with respect to actions the respective parties
will take at the Closing itself) at which time the Parties shall file the
Certificate of Merger with the State of Delaware (the "Closing Date"), or at
such other time as the parties, acting through their authorized officers, may
mutually agree. The Closing shall be held at the offices of RONCO, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other location as may be
mutually agreed upon by the parties.
2.3
(a) Effective Time. So long as the condition set forth in Section
2.3(b) is met, the Merger and other transactions contemplated by this Agreement
shall become effective on the date and at the time the Certificate of Merger
reflecting the Merger shall become effective with the Secretary of State of
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Delaware, which shall be at 9:00A.M. on the second business day after the
Closing (the "Effective Time").
(b) Period Between Closing Date and the Effective Time. During the
period between the Closing Date and the Effective Time, if the funds held in the
Escrow Account become less than the minimum of $50,000,000 as a result of
investors withdrawing their funds, the Effective Time in the Certificate of
Merger shall be extended by an amendment thereto until there is a minimum of
$50,000,000 in funds in the Escrow Account. In the event that the Effective Time
does not occur within 30 days after the Closing Date, unless extended by the FTK
Insiders, in their sole discretion, this Agreement shall terminate and the
actions to unwind the Merger, as set forth in Section 7.2 shall occur.
2.4 Charter. The Certificate of Incorporation of RONCO in effect
immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation until duly amended or repealed.
2.5 Bylaws. The Bylaws of RONCO in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation until duly
amended or repealed.
2.6 Directors and Officers. The directors of RONCO in office
immediately prior to the Closing Date, together with such additional Persons as
may thereafter be elected, shall serve as the directors of the Surviving
Corporation from and after the Closing Date in accordance with the Bylaws of the
Surviving Corporation. The officers of RONCO in office immediately prior to the
Closing Date, together with such additional Persons as may thereafter be
elected, shall serve as the officers of the Surviving Corporation from and after
the Closing Date in accordance with the Bylaws of the Surviving Corporation.
2.7 Conversion of Shares. Subject to the provisions of this Article II,
at the Effective Time, by virtue of the Merger and, except as set forth below,
without any action on the part of FTK, RONCO or Purchaser or the stockholders of
any of the foregoing, the shares of the constituent corporations shall be
converted as follows:
(a) Each share of capital stock of FTK issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding from
and after the Effective Time.
(b) Each share of Purchaser's Common Stock issued and
outstanding immediately prior to the Effective Time shall cease to be
outstanding and shall be converted into one share of Common Stock of the
Surviving Corporation.
(c) Each share of RONCO's Common Stock issued and outstanding
immediately prior to the Effective Time shall cease to be outstanding and shall
be converted into and exchanged for the right to receive 1.6452794 shares of
Common Stock of FTK, assuming the 1 for 89 reverse stock split approved by FTK's
shareholders (the "Reverse Stock Split") becomes effective prior to the
Effective Time, or otherwise as adjusted to reflect fully the effect of any
stock split, reverse stock split, stock dividend (including any dividend or
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distribution of securities convertible into common stock of FTK), as the case
may be, occurring after the date hereof and prior to the Effective Time (the
"Exchange Ratio") (hereinafter such FTK shares shall be referred to as the
"Consideration Shares" or the "Merger Consideration"). The Consideration Shares
shall, upon issuance and delivery to the stockholders of RONCO in accordance
with the terms hereof, be fully paid, validly issued and non-assessable, but
shall not be registered securities under the Securities Act of 1933, as amended,
(the "Securities Act") pursuant to a valid exemption thereunder. The Reverse
Stock Split and Name Change (as defined below) shall be noticed to the NASD
pursuant to NASD rules at the time of Closing and may become effective after the
Closing as a result of required NASD waiting periods.
2.8 Exchange of Shares. At the Closing, the stockholders of RONCO shall
surrender each certificate or certificates which represented shares of RONCO's
Common Stock immediately prior to the Closing Date (the "Certificates") and
shall at the Effective Time receive in exchange therefore the number of whole
Consideration Shares issuable in respect of all shares of RONCO's Common Stock
held by such RONCO stockholder (rounded to the nearest share). Except as set
forth in Section 2.12, FTK shall not be obligated to deliver the Consideration
Shares to which a RONCO stockholder is entitled as a result of the Merger until
such Person surrenders its Certificate or Certificates for exchange as provided
in this Section 2.8. Any other provision of this Agreement notwithstanding,
neither FTK nor the Surviving Corporation shall be liable to a holder of RONCO's
Common Stock for any amounts paid or property delivered in good faith to a
public official pursuant to any applicable abandoned property, escheat or
similar law.
2.9 Rights of Former RONCO Stockholders. At the Closing Date, the stock
transfer books of RONCO shall be closed as to holders of RONCO Common Stock
immediately prior to the Closing Date and no transfer of RONCO Common Stock by
any such holder shall thereafter be made or recognized. Until surrendered for
exchange in accordance with the provisions of Section 2.8, each Certificate
theretofore representing shares of RONCO Common Stock shall from and after the
Closing Date represent for all purposes only the right to receive the
Consideration Shares provided in Section 2.7 in exchange therefore. Whenever a
dividend or other distribution is declared by FTK on the FTK Common Stock, the
record date for which is at or after the Closing Date, the declaration shall
include dividends or other distributions on all shares of FTK Common Stock
issuable pursuant to this Agreement, but no dividend or other distribution
payable to the holders of record of FTK Common Stock as of any time subsequent
to the Closing Date shall be delivered to the holder of any Certificate until
such holder surrenders such Certificate for exchange as provided in Section 2.8.
However, upon surrender of such Certificate, both the FTK Common Stock
certificate (together with all such undelivered dividends or other distributions
without interest) and any undelivered dividends payable in respect thereof
(without interest) shall be delivered and paid with respect to each share
represented by such Certificate.
2.10 Legending of Securities. Each certificate for FTK Common Stock to
be issued to the RONCO stockholders as part of the Merger Consideration shall
bear substantially the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
7
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED. OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR LAWS, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT, IN THE
CIRCUMSTANCES, REQUIRED UNDER THE ACT".
2.11 Fractional Shares. Notwithstanding any other provision of this
Agreement, if the Sellers would otherwise have been entitled to receive a
fraction of a share of FTK Common Stock (after taking into account all
certificates delivered by the RONCO stockholders), the number of shares issuable
to the RONCO stockholder shall be rounded up to the next whole number.
2.12 Lost, Stolen or Destroyed Certificates. In the event that any
Certificates shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by such RONCO stockholder (setting forth the number of
shares of RONCO Common Stock represented by such lost, stolen or destroyed
Certificates), after reasonable investigation by FTK to confirm ownership of
such Certificate, which shall be satisfactory to FTK, in FTK's sole
satisfaction, FTK shall pay such RONCO stockholder the Consideration Shares to
which such RONCO stockholder is entitled.
ARTICLE III
Representations and Warranties of FTK, Purchaser and the FTK Insiders
In order to induce RONCO to enter into this Agreement and to consummate
the transactions contemplated hereby, FTK and Purchaser jointly and severally,
make the representations and warranties set forth below to RONCO. The FTK
Insiders (as defined in Article I above) make only the representations and
warranties contained in Sections 3.6, 3.7, 3.11, 3.12 and 3.13 and such
representations and warranties made by the FTK Insiders are made based upon
their Knowledge and belief as of the date hereof.
3.1 Organization; Standing and Power. FTK is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. FTK and Purchaser have
all requisite right, power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. FTK and
Purchaser have all corporate right, power and authority to own or lease and
operate their properties, and to conduct their business as presently conducted.
FTK and Purchaser are duly qualified to transact business as a foreign
corporation in all jurisdictions where the ownership or leasing of their
properties or the conduct of their respective business requires such
qualification except where the failure to so qualify would not have a Material
Adverse Effect on FTK and Purchaser. Each jurisdiction in which FTK and
Purchaser are so qualified is listed on Schedule 3.1 hereto.
3.2 Authorization; Enforceability. The execution, delivery and
performance of this Agreement by FTK and Purchaser and all other agreements to
be executed, delivered and performed by FTK and Purchaser pursuant to this
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Agreement (collectively, the "Purchaser Documents") and the consummation by FTK
and Purchaser of the transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate or individual action on the part of FTK
and Purchaser, as applicable. This Agreement and the Purchaser Documents have
been duly executed and delivered by FTK and Purchaser, and constitute the legal,
valid and binding obligation of FTK and Purchaser, assuming the due
authorization, execution and delivery of this Agreement by RONCO, enforceable in
accordance with their respective terms, except to the extent that their
enforcement is limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights generally and by
general principles of equity.
3.3 No Violation or Conflict. To the Knowledge of FTK and Purchaser,
the execution, delivery and performance of this Agreement and the Purchaser
Documents by FTK and Purchaser, and the consummation by FTK and Purchaser of the
transactions contemplated hereby and thereby: (a) do not violate or conflict
with any provision of law or regulation (whether federal, state or local), or
any writ, order or decree of any court or governmental or regulatory authority,
or any provision of FTK or Purchaser's Certificate of Incorporation or Bylaws;
and (b) do not and will not, with or without the passage of time or the giving
of notice, result in the breach of, or constitute a default (or an event that
with notice or lapse of time or both would become a default), cause the
acceleration of performance, give to others any right of termination, amendment,
acceleration or cancellation of or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of FTK
or Purchaser pursuant to any instrument or agreement to which FTK or Purchaser
is a party or by which FTK or Purchaser or their respective properties may be
bound or affected, other than instruments or agreements as to which consent
shall have been obtained at or prior to the Closing.
3.4 Consents of Governmental Authorities and Others. To the Knowledge
of FTK and Purchaser, other than in connection with the provisions of the
Delaware General Corporation Laws, the Securities Exchange Act of 1934, as
amended, the Securities Act, and the state securities laws, no consent,
approval, order or authorization of, or registration, declaration, qualification
or filing with any federal, state or local governmental or regulatory authority,
or any other Person, is required to be made by FTK or Purchaser in connection
with the execution, delivery or performance of this Agreement by FTK or
Purchaser or the consummation by FTK or Purchaser of the transactions
contemplated hereby, excluding the execution, delivery and performance of this
Agreement by RONCO.
3.5 Conduct of Business. Except as disclosed on Schedule 3.5 hereto,
since June 30, 2004, FTK has conducted its businesses in the ordinary and usual
course consistent with past practices and there has not occurred any Material
Adverse Effect in the condition (financial or otherwise), results of operations,
properties, assets, liabilities, business or prospects of FTK. Without limiting
the generality of the foregoing, except as disclosed on Schedule 3.5, since June
30, 2004, FTK has not: (a) amended its Articles of Incorporation or Bylaws; (b)
issued, sold or authorized for issuance or sale, shares of any class of its
securities (including, but not limited to, by way of stock split or dividend) or
any subscriptions, options, warrants, rights or convertible securities or
entered into any agreements or commitments of any character obligating it to
9
issue or sell any such securities; (c) redeemed, purchased or otherwise
acquired, directly or indirectly, any shares of its capital stock or any option,
warrant or other right to purchase or acquire any such capital stock; (d)
suffered any damage, destruction or loss, whether or not covered by insurance,
which has had or could reasonably be expected to have a Material Adverse Effect
on any of its properties, assets, business or prospects; (e) granted or made any
mortgage or pledge or subjected itself or any of its properties or assets to any
lien, charge or encumbrance of any kind; (f) made or committed to make any
capital expenditures in excess of $10,000; (g) become subject to any Guaranty;
(h) granted any increase in the compensation payable or to become payable to
directors, officers or employees (including, without limitation, any such
increase pursuant to any severance package, bonus, pension, profit-sharing or
other plan or commitment); (i) entered into any agreement which would be a
material agreement, or amended or terminated any existing material agreement;
(j) To the Knowledge of FTK been named as a party in any Litigation (as defined
below), or become the focus of any investigation by any government or regulatory
agency or authority; (k) declared or paid any dividend or other distribution
with respect to its capital stock; or (l) To the Knowledge of FTK experienced
any other event or condition of any character which has had, or could reasonably
be expected to have, a Material Adverse Effect on FTK. Schedule 3.5 sets forth a
true and complete list of all bonuses or other distributions made by FTK since
June 30, 2004.
3.6 Litigation. To the Knowledge of FTK or any of the FTK Insiders
there are no actions, suits, investigations, claims or proceedings
("Litigation") pending or threatened before any court or by or before any
governmental or regulatory authority or arbitrator, (a) affecting FTK or
Purchaser (as plaintiff or defendant) or (b) against FTK, Purchaser or the FTK
Insiders relating to FTK's Common Stock or the transactions contemplated by this
Agreement. Schedule 3.6 sets forth a list of any Litigation commenced against
FTK, Purchaser or the FTK Insiders in the last five (5) years.
3.7 Brokers. Except as set forth in Schedule 3.7, none of FTK,
Purchaser nor the FTK Insiders has employed any broker or finder, and none of
them has incurred or will incur, directly or indirectly, any broker's, finder's,
investment banking or similar fees, commissions or expenses in connection with
the transactions contemplated by this Agreement or the Purchaser Documents.
3.8 Compliance. To the Knowledge of FTK and Purchaser, FTK and
Purchaser are in compliance with all federal, state, local and foreign laws,
ordinances, regulations, judgments, rulings, orders and other requirements
applicable to FTK and Purchaser and their respective assets and properties,
including, without limitation, those relating to (a) the registration and sale
of the FTK Common Stock, (b) the establishment of a public trading market for
the FTK Common Stock, and (c) the public trading of the FTK Common Stock, except
where such noncompliance with (a),(b) or (c) of this Section 3.8 would not have
a Material Adverse Effect on the financial condition of FTK and Purchaser or on
FTK's ability to maintain a public market for its common stock. To the Knowledge
of FTK and Purchaser, neither FTK nor the Purchaser is subject to any judicial,
governmental or administrative inquiry, investigation, order, judgment or
decree.
3.9 Charter, Bylaws and Corporate Records. RONCO has been provided with
true, correct and complete copies of (a) the Articles of Incorporation of FTK
and Purchaser, as amended and in effect on the date hereof, (b) the Bylaws of
10
FTK and Purchaser, as amended and in effect on the date hereof, and (c) the
minute books of FTK and Purchaser (containing all corporate proceedings from the
date of incorporation). Such minute books contain accurate records of all
meetings and other corporate actions of the board of directors, committees of
the board of directors, incorporators and shareholders of FTK and Purchaser from
the date of its incorporation to the date hereof which were memorialized in
writing.
3.10 Subsidiaries and Investments. Except as described on Schedule
3.10, FTK has no Subsidiaries or Investments. Schedule 3.10 describes the
capitalization of all of FTK's Subsidiaries. FTK owns one hundred percent (100%)
of the issued and outstanding capital stock of the Subsidiaries listed on
Schedule 3.10.
3.11 Capitalization. The authorized capital stock of FTK consists of
500,000,000 shares of common stock, $0.00001 par value per share, of which
42,507,500 pre-Reverse Stock Split shares or 477,000 post-Reverse Stock Split
shares are issued and outstanding (the "Outstanding FTK Common Stock"), except
that certain additional shares will be issued by FTK's transfer agent to round
up fractional shares that result from the Reverse Stock Split to the next whole
share, and 20,000,000 shares of preferred stock, $.00001 par value per share, of
which no shares are issued and outstanding. Notice of the Reverse Stock Split
shall be given to the NASD prior to Closing, but such stock split may not have
become effective at the Closing Date due to the NASD's waiting period. All
shares of Outstanding FTK Common Stock have been duly authorized, are validly
issued and outstanding, and are fully paid and non-assessable. No securities
issued by FTK from the date of its incorporation to the date hereof were issued
in violation of any contractual preemptive rights or, to the Knowledge of FTK
and the FTK Insiders, any statutory or common law preemptive rights. There are
no dividends which have accrued or been declared but are unpaid on the capital
stock of FTK. Except as set forth on Schedule 3.11 hereto, all taxes required to
be paid in connection with the issuance and any transfers of FTK's capital stock
have been paid. All permits or authorizations required to be obtained from or
registrations required to be effected with any Person in connection with any and
all issuances of securities of FTK from the date of FTK's incorporation to the
date hereof have been obtained or effected and all securities of FTK have been
issued and are held in accordance with the provisions of all applicable
securities or other laws. The Outstanding FTK Common Stock constitutes one
hundred percent (100%) of the issued and outstanding capital stock of FTK. The
Consideration Shares shall, upon issuance and delivery to the RONCO stockholders
in accordance with the terms hereof, be fully paid, validly issued and
non-assessable, but shall not be registered securities under the Securities Act.
There are no registration rights outstanding which relate to the Outstanding FTK
Common Stock and, to the Knowledge of FTK and the FTK Insiders, there are no
voting trusts, proxies or other agreements or understandings with respect to any
equity security of any class of FTK.
3.12 Rights, Warrants, Options. There are no outstanding (a) securities
or instruments convertible into or exercisable for any of the capital stock or
other equity interests of FTK or Purchaser; (b) options, warrants,
subscriptions, puts, calls, or other rights to acquire capital stock or other
equity interests of FTK or Purchaser; or (c) commitments, agreements or
understandings of any kind, including employee benefit arrangements, relating to
11
the issuance or repurchase by FTK or Purchaser of any capital stock or other
equity interests of FTK or Purchaser, or any instruments convertible or
exercisable for any such securities or any options, warrants or rights to
acquire such securities.
3.13 Commission Filings and Financial Statements. All of the Periodic
Reports and other filings required to be filed by FTK to satisfy the information
requirements of Section 13 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and any other applicable sections of the Exchange Act,
have been filed with the Commission, as of the date filed, each of the Periodic
Reports were true, accurate and complete in all material respects, did not omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and have been filed in compliance with
the requirements of the Exchange Act. The Financial Statements of FTK: (a) have
been prepared in accordance with the books of account and records of FTK; (b)
fairly present, and are true, correct and complete statements in all material
respects of FTK's financial condition and the results of its operations at the
dates and for the periods specified in those statements; and (c) have been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") consistently applied with prior periods.
3.14 Absence of Undisclosed Liabilities. Other than as disclosed by the
Periodic Reports, the Financial Statements of FTK or as disclosed on Schedule
3.14, FTK and Purchaser do not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, fixed
or unfixed, xxxxxx or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, contingent or otherwise, including, without
limitation, liabilities on account of taxes, other governmental charges or
Litigation, whether or not of a kind required by GAAP to be set forth on a
financial statement ("Liabilities"). FTK and Purchaser have no Knowledge of any
circumstances, conditions, events or arrangements which may hereafter give rise
to any Liabilities of FTK or Purchaser, except as set forth on Schedule 3.14.
3.15 Real Property. FTK and Purchaser do not own any fee simple
interest in real property. FTK and Purchaser do not lease, sublease, or have any
other contractual interest in any real property.
3.16 List of Accounts and Proxies. Set forth on Schedule 3.16 is: (a)
the name and address of each bank or other institution in which FTK or Purchaser
maintains an account (cash, securities or other) or safe deposit box; (b) the
name and phone number of FTK or Purchaser's contact person at such bank or
institution; (c) the account number of the relevant account and a description of
the type of account; (d) the name of each person authorized by FTK or Purchaser
to effect transactions therewith or to have access to any safe deposit box or
vault; and (e) all proxies, powers of attorney or other like instruments to act
on behalf of FTK or Purchaser in matters concerning its business or affairs.
3.17 Personnel. Schedule 3.17 contains the names and annual salary
rates and other compensation of all officers, directors, consultants and
employees of FTK or Purchaser (including compensation paid or payable by FTK
under any employee benefit or option plans). FTK and Purchaser have no employee
policies, employee manuals or other written statements of rules or policies as
to working conditions, vacation and sick leave.
12
3.18 Employment Agreements and Employee Benefit Plans. FTK has not had
any and does not have any defined contribution plan and it is not (and was
never) part of a controlled group contributing to any defined contribution plan
and is not and was never a party to any collective bargaining agreement or other
employment contracts. FTK has not, nor does it now contribute to any pension,
profit-sharing, option, other incentive plan, or any other type of Employee
Benefit Plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), or any health, dental, vision, long
term disability, short term disability, life insurance or other welfare benefits
plan, or have any obligation to or customary arrangement with employees for
bonuses, incentive compensation, vacations, severance pay, insurance, or other
benefits and it is not now (and was never) a part of a controlled group with
regard to any of the foregoing. Schedule 3.17 also contains a true and correct
statement of the names, relationship with FTK, present rates of compensation
(whether in the form of salary, bonuses, commissions, or other supplemental
compensation now or hereafter payable), and aggregate compensation for the
fiscal year ended June 30, 2004 of each director, officer, consultant or
employee of FTK. Since June 30, 2004, FTK has not changed the rate of
compensation of any of its directors, officers, consultants or employees, and
FTK will not be required to make any severance payments to any of its directors,
officers, consultants or employees as a result of the Merger.
To the Knowledge of FTK there are no complaints, charges,
claims, allegations, grievances, or litigations pending or threatened which
reflect or pertain to: (i) any federal, state or local labor, employment,
anti-discrimination, workers compensation, disability or unemployment law,
regulation or ordinance; (ii) any claim for wrongful discharge, harassment,
discrimination, breach of employment contract or employment-related tort; or
(iii) any employment agreement, restrictive covenant, non-competition agreement
or employee confidentiality agreement, which, in any such case, if adversely
determined, could reasonably be expected to have a Material Adverse Effect on
FTK.
3.19 Taxes.
(a) FTK has properly prepared and timely filed all Tax Returns (as
defined below) relating to any and all Taxes (as defined below) concerning or
attributable to it or its operations for any period ending on or before the
Closing Date and such Tax Returns, to the Knowledge of FTK are true, correct and
complete in all material respects and have been completed in accordance with
applicable Laws (as defined below). Buyer has been provided with copies of all
Tax Returns filed by FTK or Purchaser for all periods since January 1, 1999.
(b) All Taxes (whether or not shown on any Tax Return) payable by FTK
have been fully and timely paid. The cash reserves or accruals for Taxes
provided in the books and records of FTK with respect to any period for which
Tax Returns have not yet been filed or for which Taxes are not yet due and owing
have been established in accordance with GAAP and are, or prior to the Closing
Date, will be, sufficient for all unpaid Taxes of FTK through and including the
Closing Date (including, without limitation, with respect to any Taxes resulting
from the transactions contemplated by this Agreement).
(c) Neither FTK nor any Person on behalf of or with respect to FTK has
executed or filed any agreements or waivers extending any statute of limitations
13
on or extending the period for the assessment or collection of any Tax. No power
of attorney on behalf of FTK with respect to any Tax matter is currently in
force.
(d) FTK is not a party to any Tax-sharing agreement or similar
arrangement with any other party (whether or not written), and FTK has not
assumed any Tax obligations of, or with respect to any transaction relating to,
any other Person, or agreed to indemnify any other Person with respect to any
Tax.
(e) No Tax Return concerning or relating to FTK or its operations has
ever been audited by a government or taxing authority, nor is any such audit in
process or pending, and FTK has not been notified of any request for such an
audit or other examination. To the Knowledge of FTK no claim has been made by a
taxing authority in a jurisdiction where Tax Returns concerning or relating to
FTK, or its operations, have not been filed, that it is or may be subject to
taxation by that jurisdiction.
(f) FTK has never been included in any consolidated, combined, or
unitary Tax Return.
(g) To the Knowledge of FTK, FTK has complied in all material respects
with all applicable Laws relating to the payment and withholding of Taxes, and
has duly and timely withheld from employee salaries, wages and other
compensation, and has paid over to the appropriate taxing authorities, all
amounts required to be so withheld and paid over for all periods under all
applicable laws.
(h) Neither FTK, nor the FTK Insiders has (i) agreed to or is required
to make any adjustments pursuant to Section 481(a) of the Internal Revenue Code
of 1986 ("Code") or any similar provision of state, local or foreign law by
reason of a change in accounting method initiated by FTK, and FTK and the FTK
Insiders have no Knowledge that the Internal Revenue Service ("IRS") has
proposed any such adjustment or change in accounting method, or has any
application pending with any taxing authority requesting permission for any
changes in accounting methods that relate to the business or operations of FTK,
(ii) executed or entered into a closing agreement pursuant to Section 7121 of
the Code or any predecessor provision thereof or any similar provision of state,
local or foreign law with respect to FTK or (iii) requested any extension of
time within which to file any Tax Return concerning or relating to FTK or its
operations, which Tax Return has since not been filed.
(i) To the Knowledge of FTK, no property owned by FTK is (i) property
required to be treated as being owned by another Person pursuant to the
provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended
and in effect immediately prior to the enactment of the Tax Reform Act of 1986,
(ii) constitutes "tax-exempt use property" within the meaning of Section
168(h)(1) of the Code or (iii) is "tax-exempt bond financed property" within the
meaning of Section 168(g) of the Code.
(j) FTK is not subject to any private letter ruling of the IRS, or
comparable rulings of other taxing authorities.
14
(k) FTK does not own any interest in any entity that is treated as a
partnership for U.S. federal income Tax purposes, or would be treated as a
pass-through or disregarded entity for any Tax purpose.
(l) FTK has not constituted either a "distributing corporation" or a
"controlled corporation" within the meaning of Section 355(a)(1)(A) of the Code
in a distribution qualifying for tax-free treatment under Section 355 of the
Code (i) in the two years prior to the date of this Agreement or (ii) in a
distribution that could otherwise constitute part of a "plan" or "series of
transactions" (within the meaning of Section 355(e) of the Code) in conjunction
with this Agreement.
(m) FTK has no elections in effect for U.S. federal income Tax purposes
under Sections 108, 168, 441, 472, 1017, 1033 or 4977 of the Code.
The term "Law" or "Laws" as used in this Agreement shall mean
any federal, state, local or foreign statue, law, ordinance, regulation, rule,
code, order or other requirement or rule of law.
The term "Tax" or "Taxes" as used in this Agreement shall mean
(i) all income, excise, gross receipts, ad valorem, sales, use, employment,
franchise, profits, gains, property, transfer, payroll, withholding, severance,
occupation, social security, unemployment compensation, alternative minimum,
value added, intangibles or other taxes, fees, stamp taxes, duties, charges,
levies or assessments of any kind whatsoever (whether payable directly or by
withholding), together with any interest and any penalties, fines, additions to
tax or additional amounts imposed by any Governmental Authority with respect
thereto, (ii) any liability for the payment of any amounts of the type described
in (i) as a result of being a member of a consolidated, combined, unitary or
aggregate group for any Taxable period, and (3) any liability for the payment of
any amounts of the type described in (i) or (ii) as a result of being a
transferee or successor to any person or as a result of any express or implied
obligation to indemnify any other Person.
The term "Tax Returns" as used in this Agreement shall mean
returns, declarations, reports, claims for refund, information returns or other
documents (including any related or supporting schedules, statements or
information) filed or required to be filed in connection with the determination,
assessment or collection of any Taxes of any party or the administration of any
laws, regulations or administrative requirements relating to any Taxes.
3.20 Material Agreements. FTK and Purchaser have no material written
and oral contracts or agreements including without limitation any: (i) contract
resulting in a commitment or potential commitment for expenditure or other
obligation or potential obligation, or which provides for the receipt or
potential receipt, involving in excess of Ten Thousand Dollars ($10,000.00) in
any instance, or series of related contracts that in the aggregate give rise to
rights or obligations exceeding such amount; (ii) indenture, mortgage,
promissory note, loan agreement, guarantee or other agreement or commitment for
the borrowing or lending of money or encumbrance of assets involving more than
15
Ten Thousand Dollars ($10,000.00) in each instance; (iii) agreement which
restricts FTK or Purchaser from engaging in any line of business or from
competing with any other Person; or (iv) any other contract, agreement,
instrument, arrangement or commitment that is material to the condition
(financial or otherwise), results of operation, assets, properties, liabilities,
business or prospects of FTK or Purchaser (collectively, and together with the
employment agreements, Employee Benefit Plans and all other agreements required
to be disclosed on any Schedule to this Agreement, the "Material FTK
Agreements"). FTK has previously furnished to RONCO true, complete and correct
copies of all written agreements, as amended.
3.21 Guaranties. FTK and Purchaser are not a party to any Guaranty, and
no Person is a party to any Guaranty for the benefit of FTK or Purchaser.
3.22 Environmental Matters. No real property used by FTK presently or
in the past has been used to manufacture, treat, store, or dispose of any
hazardous substance and such property is free of all such substances such that
the condition of the property is in compliance with applicable Environmental
Laws (as defined below). To the Knowledge of FTK, FTK is in compliance with all
laws, regulations and other federal, state or local governmental requirements,
and all applicable judgments, orders, writs, notices, decrees, permits,
licenses, approvals, consents or injunctions relating to the generation,
management, handling, transportation, treatment, disposal, storage, delivery,
discharge, release or emission of any waste, pollutant or toxic or hazardous
substance (including, without limitation, asbestos, radioactive material and
pesticides) (the "Environmental Laws") applicable to FTK or its business as a
result of any hazardous substance utilized by FTK in its business or otherwise
placed at any of the facilities owned, leased or operated by FTK, or in which
FTK has a contractual interest. FTK has not received any complaint, notice,
order, or citation of any actual, threatened or alleged noncompliance by FTK
with any Environmental Laws, and to the Knowledge of FTK there is no Litigation
pending or threatened against FTK with respect to any violation or alleged
violation of the Environmental Laws, and to FTK's Knowledge, there is no
reasonable basis for the institution of any such Litigation.
3.23 Absence of Certain Business Practices. Neither FTK, nor any
Affiliates thereof nor, to the Knowledge of each, any other Person acting on
behalf of FTK, has with respect to the business or activities of FTK: (a)
received, directly or indirectly, any rebates, payments, commissions,
promotional allowances or any other economic benefits, regardless of their
nature or type, from any customer, supplier, trading company, shipping company,
governmental employee or other Person with whom FTK has done business directly
or indirectly; or (b) directly or indirectly, given or agreed to give any gift
or similar benefit to any customer, supplier, trading company, shipping company,
governmental employee or other Person who is or may be in a position to help or
hinder the business of FTK (or assist FTK in connection with any actual or
proposed transaction) which (i) may subject FTK to any material damage or any
penalty in any Litigation, (ii) if not given in the past, may have had a
Material Adverse Effect on the assets, business or operations of FTK as
reflected in the Periodic Reports or Financial Statements of FTK or (iii) if not
continued in the future, may have a Material Adverse Effect on the assets,
business or operations of FTK or subject FTK to suit or penalty in any private
or governmental litigation or proceeding.
3.24 Disclosure. No representation or warranty of FTK or Purchaser
contained in this Agreement, and no statement, report, or certificate furnished
16
by or on behalf of FTK or Purchaser to RONCO pursuant hereto or in connection
with the transactions contemplated hereby, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading or omits to state a
material fact necessary in order to provide RONCO with full and proper
information as to the business, financial condition, assets, liabilities,
results of operation or prospects of FTK and the value of the properties or the
ownership of FTK or Purchaser.
ARTICLE IV
Representations and Warranties of RONCO
In order to induce FTK, Purchaser and the FTK Insiders to enter into
this Agreement and to consummate the transactions contemplated hereby, RONCO
makes the representations and warranties set forth below to FTK, Purchaser and
the FTK Insiders.
4.1 Organization. RONCO is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. RONCO is
duly qualified to transact business as a foreign corporation in all
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to so qualify
would not have a Material Adverse Effect on RONCO. Each jurisdiction in which
RONCO is so qualified is listed on Schedule 4.1 hereto. RONCO has the requisite
power and authority to (a) own or lease and operate its properties and (b)
conduct its business as presently conducted.
4.2 Authorization; Enforceability. RONCO has the capacity to execute,
deliver and perform this Agreement. This Agreement and all other documents
executed and delivered by RONCO pursuant to this Agreement have been duly
executed and delivered and constitute the legal, valid and binding obligations
of RONCO, assuming the due authorization, execution and delivery of this
Agreement by FTK, Purchaser and the FTK Insiders, enforceable in accordance with
their respective terms, except to the extent that their enforcement is limited
by bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights generally and by general principals of
equity.
4.3 No Violation or Conflict. To the Knowledge of RONCO, the execution,
delivery and performance of this Agreement and the other documents contemplated
hereby by RONCO, and the consummation by RONCO of the transactions contemplated
hereby: (a) do not violate or conflict with any provision of law or regulation
(whether federal, state or local), or any writ, order or decree of any court or
governmental or regulatory authority, or any provision of RONCO's Certificate of
Incorporation or Bylaws; and (b) do not and will not, with or without the
passage of time or the giving of notice, result in the breach of, or constitute
a default (or an event that with notice or lapse of time or both would become a
default), cause the acceleration of performance, give to others any right of
termination, amendment, acceleration or cancellation of or require any consent
under, or result in the creation of any lien, charge or encumbrance upon any
property or assets of RONCO pursuant to any instrument or agreement to which
RONCO is a party or by which RONCO or their respective properties may be bound
17
or affected, other than instruments or agreements as to which consent shall have
been obtained at or prior to the Closing, each of which instruments or
agreements is listed in Schedule 4.3 hereto.
4.4 Consents of Governmental Authorities and Others. To the Knowledge
of RONCO, other than in connection with the provisions of the Delaware General
Corporation Law, no consent, approval or authorization of, or registration,
qualification or filing with any federal, state or local governmental or
regulatory authority, or any other Person, is required to be made by RONCO in
connection with the execution, delivery or performance of this Agreement by
RONCO or the consummation by them of the transactions contemplated hereby,
excluding the execution, delivery and performance of this Agreement by FTK or
the Purchaser.
4.5 Brokers. Except as set forth in Schedule 4.5, RONCO has not
employed any broker or finder, and has not incurred and will not incur any
broker's, finder's, investment banking or similar fees, commissions or expenses
in connection with the transactions contemplated by this Agreement or the
Purchaser Documents.
4.6 Charter, Bylaws and Corporate Records. A true, correct and complete
copy of (a) the Certificate of Incorporation of RONCO, as amended and in effect
on the date hereof, and (b) the Bylaws of RONCO, as amended and in effect on the
date hereof, are attached hereto as Schedule 4.6.
4.7 Subsidiaries and Investments. Except as described on Schedule 4.7,
RONCO has no Subsidiaries or Investments.
4.8 Capitalization. The authorized capital stock of RONCO consists of
1,500,000 shares of common stock, par value $.001 per share (the "RONCO Common
Stock"). RONCO has issued and outstanding 486,239 shares of RONCO Common Stock
(the "Outstanding RONCO Common Stock"). The Outstanding RONCO Common Stock
constitutes one hundred percent (100%) of the issued and outstanding capital
stock of RONCO. The Outstanding RONCO Common Stock is owned by its stockholders
in the amounts set forth on Schedule A. All of the Outstanding RONCO Common
Stock have been duly authorized, are validly issued and outstanding, and is
fully paid and non-assessable. No securities issued by RONCO from the date of
its incorporation to the date hereof were issued in violation of any statutory
or common law preemptive rights. There are no dividends which have accrued or
been declared but are unpaid on the capital stock of RONCO. Except as set forth
on Schedule 4.8 hereto, all taxes required to be paid in connection with the
issuance and any transfers of RONCO's capital stock have been paid. All permits
or authorizations required to be obtained from or registrations required to be
effected with any Person in connection with any and all issuances of securities
of RONCO from the date of its incorporation to the date hereof have been
obtained or effected and all securities of RONCO have been issued and are held
in accordance with the provisions of all applicable securities or other laws.
4.9 Rights, Warrants, Options. Except as set forth on Schedule 4.9,
there are no outstanding (a) securities or instruments convertible into or
exercisable for any of the capital stock or other equity interests of RONCO; (b)
options, warrants, subscriptions or other rights to acquire capital stock or
18
other equity interests of RONCO; or (c) except as set forth on Schedule 4.9
hereto, commitments, agreements or understandings of any kind, including
employee benefit arrangements, relating to the issuance or repurchase by RONCO
of any capital stock or other equity interests of RONCO, or any instruments
convertible or exercisable for any such securities or any options, warrants or
rights to acquire such securities.
4.10 Litigation. To the Knowledge of RONCO there are no actions, suits,
investigations, claims or proceedings ("Litigation") pending or threatened
before any court or by or before any governmental or regulatory authority or
arbitrator, (a) affecting RONCO (as plaintiff or defendant) or (b) against RONCO
relating to RONCO's Common Stock or the transactions contemplated by this
Agreement. Schedule 4.10 sets forth a list of any Litigation commenced against
RONCO in the last five (5) years.
4.11 Compliance. To the Knowledge of RONCO, RONCO is in compliance with
all federal, state, local and foreign laws, ordinances, regulations, judgments,
rulings, orders and other requirements applicable to RONCO and its assets and
properties, except where such noncompliance would not have a Material Adverse
Effect on the financial condition of RONCO. To the Knowledge of RONCO, it is not
subject to any judicial, governmental or administrative inquiry, investigation,
order, judgment or decree.
4.12 Financial Statements. The financial statements of RONCO for the
nine months ended September 30, 2004: (a) have been prepared in accordance with
the books of account and records of RONCO; (b) fairly present, and are true,
correct and complete statements in all material respects of RONCO's financial
condition and the results of its operations at the dates and for the periods
specified in those statements; and (c) have been prepared in accordance with
United States generally accepted accounting principles ("GAAP") consistently
applied with prior periods.
4.13 Dilution. As of the Closing Date, the 477,000 post reverse stock
split shares of FTK issued and outstanding immediately after the Effective Time
shall represent not less than 2.98% of the common stock of the Surviving
Corporation on a fully diluted basis on the closing date of the Financing
described in the Private Placement Memorandum.
4.14 RONCO Business Operations. To the Knowledge of RONCO, the
information on the RONCO's proposed business and operations contained in the
Private Placement Memorandum, is accurate and complete, and does not contain any
untrue statement of material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading.
4.15 Disclosure. No representation or warranty of RONCO contained in
this Agreement, and no statement, report, or certificate furnished by or on
behalf of RONCO to FKT, FTK Insiders or the Purchaser pursuant hereto or in
connection with the transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading or omits
to state a material fact necessary in order to provide FKT, FTK Insiders or the
Purchaser with full and proper information as to the business, financial
condition, assets, liabilities, results of operation or prospects of RONCO and
the value of the properties or the ownership of RONCO.
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ARTICLE V
Additional Agreements
5.1 Survival of the Representations and Warranties. The representations
and warranties and covenants set forth in Article III and Article IV of this
Agreement shall survive the Closing until the expiration of twenty four (24)
months from the Closing Date. No claim for indemnity with respect to breaches of
representations and warranties may be brought by any party hereto, other than a
claim for fraud or intentional misrepresentation, after expiration of the
applicable survival period therefore as set forth in this Section 5.1.
5.2 Investigation. The representations, warranties, covenants and
agreements set forth in this Agreement shall not be affected or diminished in
any way by any investigation (or failure to investigate) at any time by or on
behalf of the party for whose benefit such representations, warranties,
covenants and agreements were made. All statements contained herein or in any
schedule, certificate, exhibit, list or other document required to be delivered
pursuant hereto, shall be deemed to be representations and warranties for
purposes of this Agreement; provided, that any knowledge or materiality
qualifications contained herein shall be applicable to such other documents.
5.3 FTK Disclaimer of Financing. RONCO acknowledges and agrees that the
shares of common stock of RONCO Corporation being offered in the Financing will
be issued after the Effective Time of the Merger and simulataneously with the
closing of the RONCO Asset Purchase. RONCO acknowledges that the disclosures in
the Private Placement Memorandum dated May 23, 2005 are a pro-forma description
of the business of RONCO Corporation as it will exist after the closing of the
Merger and the RONCO asset purchase. RONCO acknowledges and agrees that the
information included in the Private Placement Memorandum has been compiled and
prepared on behalf of RONCO Marketing Corporation concerning FI-Tek and the
predecessor entities. RONCO acknowledges and agrees that the Fi-Tek Insiders
have made no representations or warranties of any kind or nature with respect to
the accuracy or completeness of any information, including the financial
information. Further, RONCO acknowledges and agrees that the Fi-Tek Insiders
disclaim any responsibility or liability whatsoever for the accuracy or
completeness of such information as it appears in the Private Placement
Memorandum. RONCO acknowledges and agrees that the subscription agreements
submitted by prospective investors in the Financing will be reviewed and
accepted RONCO board after the Effective Time.
RONCO acknowledges and agrees that the investors in the Financing shall
execute a subscription agreement acknowledging that Fi-Tek and the Fi-tek
Insiders have played no role in the Financing and that the investor releases
Fi-Tek and the Fi-Tek Insiders from any liability in connection with the
Financing.
RONCO acknowledges and agrees that the investors in the Financing shall
have the right to withdraw their funds from the Escrow Account until the
Effective Time of the Merger.
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5.4 RONCO Indemnification.
(a) Each of the FTK Insiders, jointly and severally, agrees to
indemnify and hold harmless RONCO, and each of RONCO's directors, officers,
employees, and agents from and against any loss, claim, liability, cost, expense
or other damages (including reasonable legal fees and expenses)(a "RONCO Loss
from FTK Insiders") which are caused by or arise out of: (a) any breach or
default in the performance by the FTK Insiders of any covenant or agreement made
by the FTK Insiders in this Agreement; (b) any breach of any Representation or
Warranty made by the FTK Insiders in this Agreement; and (c) any and all
Litigations incident to any of the foregoing.
(b) FTK agrees to indemnify and hold harmless RONCO, and each
of RONCO's directors, officers, employees, and agents from and against any loss,
claim, liability, cost, expense or other damages (including reasonable legal
fees and expenses)(collectively a "RONCO Loss from FTK") which are caused by or
arise out of: (a) any breach or default in the performance by any of FTK,
Purchaser or the FTK Insiders of any covenant or agreement made by any of them
in this Agreement; (b) any breach of any Representation or Warranty made by any
of FTK, Purchaser or the FTK Insiders in this Agreement; (c) any and all Taxes,
but only to the extent that sufficient reserves, usable tax-loss carry forwards,
accruals, or other off-sets for such Taxes are not provided for in the books and
records of FTK, that may be imposed upon or assessed against FTK or its assets:
(i) with respect to any Pre-Closing Period (as defined below), (ii) with respect
to any and all Taxes of any member of a consolidated, combined, unitary or
similar group of which FTK (or any predecessor thereof) is or was a member on or
prior to the Closing Date, including any Taxes for which FTK may be liable under
Section 1502-6 of the Treasury Regulations promulgated under the Code (or any
similar provision of state, local or foreign law), and (iii) by reason of being
a successor-in-interest or transferee of another Person prior to the Closing
Date, and (d) any and all Litigations incident to any of the foregoing.
For purposes of this Section 5.4(b), "Pre-Closing Period"
shall mean a taxable period, or portion thereof, that ends on or prior to the
Closing Date. If a taxable period begins on or prior to the Closing Date and
ends after the Closing Date, then the portion of the taxable period that ends on
(and including) the Closing Date shall constitute a Pre-Closing Period. In the
case of any Tax that is imposed on a periodic basis and is payable for a period
that begins before the Closing Date and ends after the Closing Date, the portion
of such Taxes payable for the Pre-Closing Period shall be (i) in the case of any
Tax other than a Tax based upon or measured by income, the amount of such Tax
for the entire period multiplied by a fraction, the numerator of which is the
number of days in the period ending on the Closing Date and the denominator of
which is the number of days in the entire period, and (ii) in the case of any
Tax based upon or measured by income, the amount which would be payable if the
taxable year ended on the Closing Date.
5.5 Limitations on RONCO's Indemnification from FTK Insiders.
Notwithstanding anything contained herein to the contrary, RONCO shall not be
entitled to indemnification from the FTK Insiders for a RONCO Loss from the FTK
Insiders under the provisions of Section 5.4(a) hereof, unless and until the
aggregate amount of all RONCO Losses from the FTK Insiders under Section 5.4(a)
21
shall have exceeded $50,000, in which event RONCO shall be entitled to such
indemnification for all RONCO Loss from the FTK Insiders; provided, that, the
amount of any RONCO Loss from the FTK Insiders for which indemnification is
provided under Section 5.4(a) hereof shall be net of any amounts recovered by
RONCO under insurance policies with respect to such RONCO Loss from the FTK
Insiders. RONCO shall in a timely fashion submit a claim to its insurance
carrier with respect to any RONCO Loss from FTK Insiders for which the FTK
Insiders are obligated to provide indemnification to RONCO hereunder.
Indemnification from the FTK Insiders shall be limited to $300,000.
5.6 Limitations on RONCO's Indemnification from FTK. Notwithstanding
anything contained herein to the contrary, RONCO shall not be entitled to
indemnification from FTK for a RONCO Loss from FTK under the provisions of
Section 5.4(b) hereof, unless and until the aggregate amount of all RONCO Losses
from FTK under Section 5.4(b) shall have exceeded $50,000, in which event RONCO
shall be entitled to such indemnification for all RONCO Losses from FTK;
provided, that, the amount of any RONCO Loss from FTK for which indemnification
is provided under Section 5.4(b) hereof shall be net of any amounts recovered by
RONCO under insurance policies with respect to such RONCO Loss from FTK. RONCO
shall in a timely fashion submit a claim to its insurance carrier with respect
to any RONCO Loss from FTK for which the FTK are obligated to provide
indemnification to RONCO hereunder. Indemnification from FTK shall be limited to
$300,000.
5.7 FTK and the FTK Insiders Indemnification For this Agreement. RONCO
agrees to indemnify and hold harmless FTK and the FTK Insiders, and their agents
from and against any loss, claim, liability, cost, expense or other damages
(including reasonable legal fees and expenses)(a "FTK and the FTK Insiders
Loss") which are caused by or arise out of: (a) any breach or default in the
performance by the RONCO of any covenant or agreement made by RONCO in this
Agreement; (b) any breach of any Representation or Warranty made by RONCO in
this Agreement; and (c) any and all Litigations incident to any of the
foregoing.
5.8 Limitations on the FTK and the FTK Insiders Indemnification For
This Agreement. Notwithstanding anything contained herein to the contrary, FTK
and the FTK Insiders shall not be entitled to indemnification for a FTK and the
FTK Insiders Loss under the provisions of Section 5.7 hereof, unless and until
the aggregate amount of all FTK and the FTK Insiders Loss under Section 5.7
shall have exceeded $50,000, in which event FTK and the FTK Insiders shall be
entitled to such indemnification for all FTK and the FTK Insiders Losses;
provided, that, the amount of any FTK and the FTK Insiders Loss for which
indemnification is provided under Section 5.7 hereof shall be net of any amounts
recovered by FTK and the FTK Insiders under insurance policies with respect to
such FTK and the FTK Insiders Loss. FTK and the FTK Insiders shall in a timely
fashion submit a claim to its insurance carrier with respect to any FTK and the
FTK Insiders Loss for which RONCO is obligated to provide indemnification to FTK
and the FTK Insiders hereunder. Indemnification under this Section 5.8 shall be
limited to $300,000.
5.9 FTK and the FTK Insiders Indemnification For the Financing. RONCO
agrees to indemnify and hold harmless FTK and the FTK Insiders, and their agents
from and against any FTK and the FTK Insiders Loss which are caused by or arise
out of the Financing. Indemnification pursuant to this Section 5.9 shall have no
limitation.
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5.10 Indemnity Procedure. A party or parties hereto agreeing to be
responsible for or to indemnify against any matter pursuant to this Agreement is
referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnity is referred to as the "Indemnified Party".
(a) An Indemnified Party under this Agreement shall, with respect to
claims asserted against such party by any third party, give written notice to
the Indemnifying Party of any liability which might give rise to a claim for
indemnity under this Agreement within sixty (60) business days of the receipt of
any written claim from any such third party, but not later than twenty (20) days
prior to the date any answer or responsive pleading is due, and with respect to
other matters for which the Indemnified Party may seek indemnification, give
prompt written notice to the Indemnifying Party of any liability which might
give rise to a claim for indemnity; provided, however, that any failure to give
such notice will not waive any rights of the Indemnified Party except to the
extent the rights of the Indemnifying Party are materially prejudiced.
(b) The Indemnifying Party shall have the right, at its election, to
take over the defense or settlement of such claim by giving written notice to
the Indemnified Party at least fifteen (15) days prior to the time when an
answer or other responsive pleading or notice with respect thereto is required.
If the Indemnifying Party makes such election, it may conduct the defense of
such claim through counsel of its choosing (subject to the Indemnified Party's
approval of such counsel, which approval shall not be unreasonably withheld),
shall be solely responsible for the expenses of such defense and shall be bound
by the results of its defense or settlement of the claim. The Indemnifying Party
shall not settle any such claim without prior notice to and consultation with
the Indemnified Party, and no such settlement involving any equitable relief or
which might have an adverse effect on the Indemnified Party may be agreed to
without the written consent of the Indemnified Party (which consent shall not be
unreasonably withheld). So long as the Indemnifying Party is diligently
contesting any such claim in good faith, the Indemnified Party may pay or settle
such claim only at its own expense and the Indemnifying Party will not be
responsible for the fees of separate legal counsel to the Indemnified Party,
unless the named parties to any proceeding include both parties and
representation of both parties by the same counsel would be inappropriate. If
the Indemnifying Party does not make such election, or having made such election
does not, in the reasonable opinion of the Indemnified Party proceed diligently
to defend such claim, then the Indemnified Party may (after written notice to
the Indemnifying Party), at the expense of the Indemnifying Party, elect to take
over the defense of and proceed to handle such claim in its discretion and the
Indemnifying Party shall be bound by any defense or settlement that the
Indemnified Party may make in good faith with respect to such claim. In
connection therewith, the Indemnifying Party will fully cooperate with the
Indemnified Party should the Indemnified Party elect to take over the defense of
any such claim.
(c) The parties agree to cooperate in defending such third party
claims and the Indemnified Party shall provide such cooperation and such access
to its books, records and properties as the Indemnifying Party shall reasonably
23
request with respect to any matter for which indemnification is sought
hereunder; and the parties hereto agree to cooperate with each other in order to
ensure the proper and adequate defense thereof.
With regard to claims of third parties for which indemnification is
payable hereunder, such indemnification shall be paid by the Indemnifying Party
upon the earlier to occur of: (i) the entry of a judgment against the
Indemnified Party and the expiration of any applicable appeal period, or if
earlier, five (5) days prior to the date that the judgment creditor has the
right to execute the judgment; (ii) the entry of an unappealable judgment or
final appellate decision against the Indemnified Party; or (iii) a settlement of
the claim. Notwithstanding the foregoing, provided that there is no dispute as
to the applicability of indemnification, the reasonable expenses of counsel to
the Indemnified Party shall be reimbursed on a current basis by the Indemnifying
Party if such expenses are a liability of the Indemnifying Party. With regard to
other claims for which indemnification is payable hereunder, such
indemnification shall be paid promptly by the Indemnifying Party upon demand by
the Indemnified Party.
5.11 General Release. As additional consideration for the sale of the
RONCO Common Stock pursuant to this Agreement each of the FTK Insiders hereby
unconditionally and irrevocably release and forever discharge, effective as of
the Closing Date, FTK and Purchaser and their officers, directors, employees and
agents, from any and all rights, claims, demands, judgments, promissory notes,
obligations, liabilities and damages, whether accrued or unaccrued, asserted or
unasserted, and whether known or unknown, relating to FTK or Purchaser which
ever existed or now exist, by reason of any tort, breach of contract, violation
of law or other act or failure to act which shall have occurred at or prior to
the Closing Date, or in relation to any other liabilities of FTK or Purchaser to
the FTK Insiders. The FTK Insiders expressly intend that the foregoing release
shall be effective regardless of whether the basis for any claim or right hereby
released shall have been known to or anticipated by them at the Closing date.
Notwithstanding the foregoing or anything else to the contrary contained herein,
the foregoing provisions of this Section 5.11shall not apply to any claims
against RONCO based upon the terms or conditions of this Agreement.
ARTICLE VI
Closing; Deliveries; Conditions Precedent
6.1 Closing; Effective Date. All proceedings taken and all documents
executed at the Closing shall be deemed to have been taken, delivered and
executed simultaneously, and no proceeding shall be deemed taken nor documents
deemed executed or delivered until all have been taken, delivered and executed.
6.2 Deliveries
(a) At Closing, FTK shall deliver the following documents to RONCO:
(1) the certificates representing the Consideration Shares;
(2) the written resignation of all FTK officers and
directors from all of their positions as FTK
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directors and/or officers, all to be effective upon Closing;
(3) the minute books of FTK, including its corporate seals, unissued
stock certificates, stock registers, Articles of Incorporation,
Bylaws and corporate minutes approving the terms and conditions of
this Agreement and the other documents contemplated hereby and the
transactions contemplated hereby and thereby;
(4) certificates issued by the Secretary of State of Delaware, as of a
recent date, as to the good standing of FTK in its jurisdiction of
incorporation and certifying its Articles of Incorporation;
(5) certificates issued by the Secretary of State of Delaware, as of a
recent date, as to the good standing of Purchaser in its
jurisdiction of incorporation and certifying its Certificate of
Incorporation;
(6) a certificate, dated the Closing Date, of an officer of FTK setting
forth that authorizing resolutions were adopted by FTK and
Purchaser's Boards of Directors, approving the terms and conditions
of this Agreement and the other documents contemplated hereby and
the transactions contemplated hereby and thereby;
(7) the consents of any third party including, but not limited to,
parties to any of the Material Agreements whose consent is required
under the terms of any such Material Agreement or otherwise;
(8) the certificates referred to in Section 6.3(d);
(9) the favorable opinion of counsel to FTK, dated the Closing Date, in
a form reasonably acceptable to RONCO, and
(10) such other documents and instruments as RONCO may reasonably
request.
(b) At Closing, RONCO shall deliver the following documents to FTK:
(1) the Certificates of RONCO Common Stock to be delivered to FTK;
(2) a certificate of the Secretary of State of the State of Delaware, as
of a recent date, as to the good standing of RONCO and certifying
its Certificate of Incorporation;
(3) a certificate, dated the Closing Date, of an officer of RONCO
setting forth that authorizing resolutions were adopted by RONCO's
Board of Directors, approving the terms and conditions of this
Agreement and the other documents contemplated hereby and the
25
transactions contemplated hereby and thereby;
(4) the certificates referred to in Section 6.4(d);
(5) the favorable opinion of counsel to RONCO, dated the Closing Date,
in a form reasonably acceptable to FTK, and
(6) such other documents and instruments as FTK may reasonably request.
6.3 Conditions Precedent to the Obligations of RONCO. Each and every
obligation of RONCO to consummate the transactions described in this Agreement
and any and all liability of RONCO to FTK shall be subject to the fulfillment on
or before the Closing Date of the following conditions precedent:
(a) Representations and Warranties True. Each of the representations
and warranties of FTK, Purchaser and the FTK Insiders contained herein or in any
certificate or other document delivered pursuant to this Agreement or in
connection with the transactions contemplated hereby shall be true and correct
in all material respects as of the Closing Date with the same force and effect
as though made on and as of such date.
(b) Performance. FTK, Purchaser and the FTK Insiders shall have
performed and complied in all material respects with all of the agreements,
covenants and obligations required under this Agreement to be performed or
complied with by them on or prior to the Closing Date.
(c) No Material Adverse Change. Except as expressly permitted or
contemplated by this Agreement, no event or condition shall have occurred which
has adversely affected or may adversely affect in any respect the condition
(financial or otherwise) of FTK or Purchaser since the date of execution of this
Agreement and the Closing Date.
(d) FTK's Certificate. FTK shall have delivered to RONCO a
certificate dated the Closing Date, certifying that the conditions specified in
Section 6.3(a), (b) and (c) above have been fulfilled and as to such other
matters as RONCO may reasonably request.
(e) Appointment. Messrs. A. Xxxxxxx Xxxxxx, XX and Xxxxx X.
Xxxxxxxxxxx shall have been appointed to the Board of Directors of FTK effective
at the Closing Date.
(f) Consents. FTK shall have obtained all authorizations, consents,
waivers and approvals as may be required to consummate the transactions
contemplated by this Agreement.
(h) Due Diligence Review. RONCO shall have completed its due
diligence investigation of FTK, Purchaser and the FTK Insiders to its
satisfaction, in its sole and absolute discretion.
(i) Name Change. FTK shall have filed with the Secretary of State of
Delaware a Certificate of Amendment to its Articles of Incorporation to change
its name to RONCO Corporation, or such other available name as specified in
26
writing by RONCO (the "Name Change"). Notice of the Name Change shall be given
to the NASD prior to Closing, but the Name Change may not have become effective
with the NASD at the Closing Date due to the NASD's waiting period.
(j) Reverse Split Effective. Prior to the Closing Date, FTK shall
have filed with the Secretary of State of Delaware a Certificate of Amendment to
its Articles of Incorporation, and all other necessary documentation, to
effectuate a 1-for-89 reverse split of the FTK Common Stock (the "Reverse Stock
Split"). Notice of the Reverse Stock Split shall be given to the NASD prior to
Closing, but such Reverse Stock Split may not have become effective at the
Closing Date due to the NASD's waiting period.
(k) Opinion of Counsel. FTK shall have obtained an opinion letter
from counsel to FTK addressed to RONCO in form and substance reasonably
acceptable to RONCO, and such opinion shall not have been withdrawn.
(l) Funds in Escrow. A minimum of $50,000,000 shall be in an escrow
account at Sterling Bank in connection with the Financing.
6.4 Conditions Precedent to the Obligations of FTK. Each and every
obligation of FTK, Purchaser and the FTK Insiders to consummate the transactions
described in this Agreement and any and all liability of FTK, Purchaser or the
FTK Insiders to RONCO shall be subject to the fulfillment on or before the
Closing Date of the following conditions precedent:
(a) Representations and Warranties True. Each of the representations
and warranties of RONCO contained herein or in any certificate or other document
delivered pursuant to this Agreement or in connection with the transactions
contemplated hereby shall be true and correct in all material respects as of the
Closing Date with the same force and effect as though made on and as of such
date.
(b) Performance. RONCO shall have performed and complied in all
material respects with all of the agreements, covenants and obligations required
under this Agreement to be performed or complied with by it on or prior to the
Closing Date.
(c) No Material Adverse Change. Except as expressly permitted or
contemplated by this Agreement, no event or condition shall have occurred which
has adversely affected or may adversely affect in any respect the condition
(financial or otherwise) of RONCO since the date of execution of this Agreement
and the Closing Date.
(d) RONCO's Certificate. RONCO shall have delivered to FTK, a
certificate addressed to FTK, dated the Closing Date, certifying that the
conditions specified in Sections 6.4(a), (b) and (c) above have been fulfilled.
(e) Consents. RONCO shall have obtained all authorizations,
consents, waivers and approvals as may be required to consummate the
transactions contemplated by this Agreement, including but not limited to, those
with respect to any Material Agreement of RONCO.
27
(f) Funds in Escrow. A minimum of $50,000,000 shall be in an escrow
account at Sterling Bank in connection with the Financing.
(g) Filing of Schedule 14f-1. RONCO shall, not less than 10 days
prior to the Closing Date, have filed a Schedule 14f-1 with the Securities and
Exchange Commission and transmit to holders of record of securities of FKT who
would be entitled to vote at a meeting for election of directors, information
required pursuant to Rule 14f-1 of the Exchange Act. The Schedule 14f-1 shall
indicated that Messrs. A. Xxxxxxx Xxxxxx, XX and Xxxxx X. Xxxxxxxxxxx shall have
been appointed to the Board of Directors of FTK effective at the Closing Date.
(h) Opinion of Counsel. RONCO shall have obtained an opinion letter
from counsel to RONCO addressed to FTK in form and substance reasonably
acceptable to FTK, and such opinion shall not have been withdrawn.
6.5 Best Efforts. Subject to the terms and conditions provided in this
Agreement, each of the parties shall use their respective best efforts in good
faith to take or cause to be taken as promptly as practicable all reasonable
actions that are within its power to cause to be fulfilled those of the
conditions precedent to its obligations or the obligations of the other parties
to consummate the transactions contemplated by this Agreement that are dependent
upon its actions, including obtaining all necessary consents, authorizations,
orders, approvals and waivers.
6.6 Termination. This Agreement and the transactions contemplated hereby
may be terminated (i) at any time by the mutual consent of the parties hereto;
(ii) by RONCO, or by FTK, Purchaser or the FTK Insiders, if the Closing has not
occurred on or prior to July 31, 2005 (such date of termination being referred
to herein as the "Termination Date"), provided the failure of the Closing to
occur by such date is not the result of the failure of the party seeking to
terminate this Agreement to perform or fulfill any of its obligations hereunder;
(iii) by RONCO at any time at or prior to Closing in its sole discretion if (1)
any of the representations or warranties of FTK, Purchaser or the FTK Insiders
in this Agreement are not in all material respects true, accurate and complete
or if FTK, Purchaser or the FTK Insiders breach in any material respect any
covenant contained in this Agreement, provided that such misrepresentation or
breach is not cured within ten (10) business days after notice thereof, but in
any event prior to the Termination Date or (2) any of the conditions precedent
to RONCO's obligations to conduct the Closing have not been satisfied by the
date required thereof (except the Name Change and the Reverse Stock Split if
such delay is the result of the NASD notice periods applicable thereto); (iv) by
FTK at any time at or prior to Closing in its sole discretion if (1) any of the
representations or warranties of RONCO in this Agreement are not in all material
respects true, accurate and complete or if RONCO breaches in any material
respect any covenant contained in this Agreement, provided that such
misrepresentation or breach is not cured within ten (10) business days after
notice thereof, but in any event prior to the Termination Date or (2) any of the
conditions precedent to RONCO's obligations to conduct the Closing have not been
satisfied by the date required thereof. If this Agreement is terminated pursuant
to this Section 6.6, written notice thereof shall promptly be given by the party
28
electing such termination to the other party and, subject to the expiration of
the cure periods provided in clauses (iii) and (iv) above, if any, this
Agreement shall terminate without further actions by the parties and no party
shall have any further obligations under this Agreement. Notwithstanding the
preceding sentence, the respective obligations of the parties under Sections 8.1
shall survive the termination of this Agreement.
ARTICLE VII
Conditions Subsequent
7.1 The obligations of FTK and the FTK Insiders under this Agreement
shall be further subject to the satisfaction of the following:
(a) Closing of the Financing. The closing of the Financing, in the
amount of $50,000,000, pursuant to the terms and conditions as set forth in the
Private Placement Memorandum, shall occur within 30 days of the Closing Date.
(b) RONCO Asset Purchase. The closing of the RONCO asset purchase
pursuant to the Asset Purchase Agreement shall occur within 30 days of the
Closing Date.
7.2 In the event that the Conditions Subsequent are not satisfied,
within 30 days of the Closing Date:
(a) Each share of capital stock of FTK and the right to receive any
shares of Common Stock of FTK issued after the Closing Date shall be immediately
cancelled.
(b) Each share of the Surviving Corporation's shares of Common Stock
issued to the holders of the Purchaser's Common Stock shall immediately be
cancelled.
(c) All of FTK officers and directors who submitted their
resignations of their positions as FTK officers and/or directors, effective upon
Closing shall be appointed as officers and directors of FTK and any and all
officers and directors appointed after the Closing Date shall immediately submit
their resignations from such positions to FTK;
(d) Each share of RONCO's Common Stock that was converted into the
right to receive 1.6452794 shares of Common Stock of FTK shall be reissued;
(e) FTK shall file with the Secretary of State of Delaware a
Certificate of Amendment to its Articles of Incorporation to change its name
back to Fi-tek VII, Inc.
ARTICLE VIII
Covenants
8.1 General Confidentiality. FTK, Purchaser and the FTK Insiders
acknowledge that the Intellectual Property and all other confidential or
proprietary information with respect to the business and operations of RONCO are
valuable, special and unique assets of RONCO. FTK, Purchaser and the FTK
Insiders shall not, at any time either before or after the Closing Date,
29
disclose, directly or indirectly, to any Person, or use or purport to authorize
any Person to use any confidential or proprietary information with respect to
RONCO, whether or not for FTK, Purchaser or the FTK Insiders' own benefit,
without the prior written consent of RONCO or unless required by law, including
without limitation, (i) any of RONCO's trade secrets, designs, formulae,
drawings, Intellectual Property, diagrams, techniques, research and development,
specifications, data, know-how, formats, marketing plans, business plans,
budgets, strategies, forecasts or client data; (ii) information relating to the
products developed by RONCO, (iii) the names of RONCO's customers and contacts,
(iv) RONCO's marketing strategies, (v) the names of RONCO's vendors and
suppliers, (vi) the cost of materials and labor, and the prices obtained for
products or services sold (including the methods used in price determination,
manufacturing and sales costs), (vii) the lists or other written records used in
RONCO's business, including compensation paid to employees and consultants and
other terms of employment, production operation techniques or any other
confidential information of, about or pertaining to the business of RONCO, and,
(viii) all tangible material that embodies any such confidential and proprietary
information as well as all records, files, memoranda, reports, price lists,
drawings, plans, sketches and other written and graphic records, documents,
equipment, and the like, relating to the business of RONCO, and (ix) any other
confidential information or trade secrets relating to the business or affairs of
RONCO which FTK, Purchaser or the FTK Insiders may acquire or develop in
connection with or as a result of their performance of the terms and conditions
of this Agreement, excepting only such information as is already known to the
public or which may become known to the public without any fault of FTK,
Purchaser or the FTK Insiders or in violation of any confidentiality
restrictions; provided, however, that the restrictions of this Section 8.1 shall
not be applicable to FTK, Purchaser or the FTK Insiders in connection with such
Parties' enforcement of its rights under this Agreement. FTK, Purchaser and the
FTK Insiders acknowledge that RONCO would not enter into this Agreement without
the assurance that all such confidential and proprietary information will be
used for the exclusive benefit of RONCO.
8.2 Continuing Obligations. The restrictions set forth in Section 8.1 are
considered by the parties to be reasonable for the purposes of protecting the
value of the business and goodwill of RONCO. FTK, Purchaser and the FTK Insiders
acknowledge that RONCO would be irreparably harmed and that monetary damages
would not provide an adequate remedy to RONCO in the event the covenants
contained in Section 8.1 were not complied with in accordance with their terms.
Accordingly, FTK, Purchaser and the FTK Insiders agree that any breach or
threatened breach by any of them of any provision of Section 8.1 shall entitle
RONCO to injunctive and other equitable relief to secure the enforcement of
these provisions, in addition to any other remedies (including damages) which
may be available to RONCO. It is the desire and intent of the parties that the
provisions of Section 8.1 be enforced to the fullest extent permissible under
the laws and public policies of each jurisdiction in which enforcement is
sought. If any provision of Section 8.1 are adjudicated to be invalid or
unenforceable, the invalid or unenforceable provisions shall be deemed amended
(with respect only to the jurisdiction in which such adjudication is made) in
such manner as to render them enforceable and to effectuate as nearly as
possible the original intentions and agreement of the parties. In addition, if
any party brings an action to enforce Section 8.1 hereof or to obtain damages
for a breach thereof, the prevailing party in such action shall be entitled to
recover from the non-prevailing party all reasonable attorney's fees and
expenses incurred by the prevailing party in such action.
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8.3 Tax Treatment. Neither FTK, Purchaser, the FTK Insiders, nor RONCO
will knowingly take any action, written or otherwise, which would result in the
transactions contemplated by this Agreement not being accounted for as a
transaction described in Section 351 of the Code and/or a tax-free exchange
pursuant to Section 368(a) of the Code.
8.4 General. In case at any time after the Closing Date any further action
is necessary to carry out the purposes of this Agreement, each of the Parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other Party reasonably may request,
all at the sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under Article V).
ARTICLE IX
Miscellaneous
9.1 Notices. Any notice, demand, claim or other communication under this
Agreement shall be in writing and delivered personally or sent by certified
mail, return receipt requested, postage prepaid, or sent by facsimile or prepaid
overnight courier to the parties at the addresses as follows (or at such other
addresses as shall be specified by the parties by like notice):
If to FTK, Purchaser or FI-TEK VII, INC.
the FTK Insiders 000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Phone: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Associates, P.C.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX. 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to RONCO: RONCO Marketing Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxx Xxxxxxx/Xxxxx Xxxxxx
(000) 000-0000 (Xxxx Phone)
(000) 000-0000 (Xxxxx Phone)
(000) 000-0000 (Fax)
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, X.X. 00000
(000) 000-0000 (Phone)
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Such notice shall be deemed delivered upon receipt against
acknowledgment thereof if delivered personally, on the fifth business day
following mailing if sent by certified mail, upon transmission against
confirmation if sent by facsimile and on the next business day if sent by
overnight courier.
9.2 Entire Agreement; Incorporation. This Agreement and the documents and
instruments and other agreements among the parties hereto as contemplated by or
referred to herein contain every obligation and understanding between the
parties relating to the subject matter hereof and merges all prior discussions,
negotiations, agreements and understandings, both written and oral, if any,
between them, and none of the parties shall be bound by any conditions,
definitions, understandings, warranties or representations other than as
expressly provided or referred to herein. All schedules, exhibits and other
documents and agreements executed and delivered pursuant hereto are incorporated
herein as if set forth in their entirety herein.
9.3 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs, personal
representatives, legal representatives, and permitted assigns.
9.4 Assignment. This Agreement may not be assigned by any party without
the written prior consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
9.5 Waiver and Amendment. Any representation, warranty, covenant, term or
condition of this Agreement which may legally be waived, may be waived, or the
time of performance thereof extended, at any time by the party hereto entitled
to the benefit thereof, and any term, condition or covenant hereof (including,
without limitation, the period during which any condition is to be satisfied or
any obligation performed) may be amended by the parties thereto at any time. Any
such waiver, extension or amendment shall be evidenced by an instrument in
writing executed on behalf of the party against whom such waiver, extension or
amendment is sought to be charged. No waiver by any party hereto, whether
express or implied, of its rights under any provision of this Agreement shall
constitute a waiver of such party's rights under such provisions at any other
time or a waiver of such party's rights under any other provision of this
Agreement. No failure by any party thereof to take any action against any breach
of this Agreement or default by another party shall constitute a waiver of the
former party's right to enforce any provision of this Agreement or to take
action against such breach or default or any subsequent breach or default by
such other party.
9.6 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any Person
other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
32
rights or remedies under or by reason of this Agreement, except as otherwise
provided herein.
9.7 Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application thereof, shall be declared
invalid, void or unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall remain in full force and effect and the
application of such provision to other Persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto. The
parties further agree to replace such invalid, void or unenforceable provision
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid, void or
unenforceable provision.
9.8 Expenses. Except as otherwise provided herein, each party agrees to
pay, without right of reimbursement from the other party, the costs incurred by
it incident to the performance of its obligations under this Agreement and the
consummation of the transactions contemplated hereby, including, without
limitation, costs incident to the preparation of this Agreement, and the fees
and disbursements of counsel, accountants and consultants employed by such party
in connection herewith.
9.9 Headings. The table of contents and the section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of any provisions of this Agreement.
9.10 Other Remedies; Injunctive Relief. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity. In any action at law or suit in equity to enforce this Agreement or the
rights of the parties hereunder, the prevailing party in any such action or suit
shall be entitled to receive a reasonable sum for its attorneys' fees and all
other reasonable costs and expenses incurred in such action or suit.
9.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall be deemed valid and binding.
9.12 Remedies Exclusive. Except in the case of fraud or equitable
remedies expressly provided for herein, the parties acknowledge and agree that
the indemnification provisions set forth in Article V of this Agreement
constitute the parties' sole and exclusive remedy with respect to any and all
claims relating to the transactions contemplated by this Agreement.
33
9.13 Governing Law. This Agreement has been entered into and shall be
construed and enforced in accordance with the laws of the State of New York,
without reference to the choice of law principles thereof.
9.14 Jurisdiction and Venue. This Agreement shall be subject to the
exclusive jurisdiction of the courts of New York County, New York. The parties
to this Agreement agree that any breach of any term or condition of this
Agreement shall be deemed to be a breach occurring in the State of New York by
virtue of a failure to perform an act required to be performed in the State of
New York and irrevocably and expressly agree to submit to the jurisdiction of
the courts of the State of New York for the purpose of resolving any disputes
among the parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, or any
judgment entered by any court in respect hereof brought in New York County, New
York, and further irrevocably waive any claim that any suit, action or
proceeding brought in New York County, New York has been brought in an
inconvenient forum.
9.15 Participation of Parties. The parties hereby agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding,
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
9.16 Further Assurances. The parties hereto shall deliver any and all
other instruments or documents reasonably required to be delivered pursuant to,
or necessary or proper in order to give effect to, all of the terms and
provisions of this Agreement including, without limitation, all necessary stock
powers and such other instruments of transfer as may be necessary or desirable
to transfer ownership of the RONCO Stock.
9.17 Publicity. No public announcement or other publicity concerning
this Agreement or the transactions contemplated hereby shall be made without the
prior written consent of both RONCO and FTK as to form, content, timing and
manner of distribution. Nothing contained herein shall prevent any party from
making any filing required by federal or state securities laws or stock exchange
rules.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Agreement as of the day and year first above written.
FI-TEK VII, INC.
By:______________________________________
Xxxxx X. Xxxxxx, President
RONCO ACQUISITIONS CORP.
By:______________________________________
Xxxxx X. Xxxxxx, President
FTK INSIDERS
---------------------------------------
Xxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
RONCO MARKETING CORPORATION
By:_____________________________________
Xxxx Xxxxxxx, Director
By:_____________________________________
Xxxxx Xxxxxx, Director
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