EXHIBIT 2(1)
ACQUISITION AGREEMENT
AGREEMENT, made this 3rd day of November, 2000 by and between:
XXXXXXX XXXXXXXXXX, having an address at 2005 Beechgrove, Utica, New York,
hereinafter referred to as "Xxxxxxxxxx"; and HEALTH-PAK, INC., a Delaware
corporation with its offices at 2005 Beechgrove, Utica, New York, hereinafter
referred to as "HPI";
LIFE ENERGY TECHNOLOGY HOLDING COMPANY, LTD., a corporation organized under the
laws of the Republic of Ireland with its office address at Finnabair Science
Park, Technology City, Dundalk, Co. Louth, Ireland.; hereinafter referred to as
"Life."; who are collectively referred to herein as the "parties."
W I T N E S S E T H
WHEREAS, Life has entered into an Agreement and Plan or Reorganization with HPI
dated November 3rd, 2000, pursuant to which Life shall become a wholly owned
subsidiary of HPI (the HPI Agreement"); and
WHEREAS, Health-Pak, Inc., a New York corporation ("Health"), is presently a
wholly owned subsidiary of HPI; and
WHEREAS, Xxxxxxxxxx desires to acquire the parties desire to acquire all of the
capital stock of Health (the "Health Shares") from HPI upon the terms and
conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. ACQUISITION OF THE HEALTH SHARES. The parties agree that simultaneously
with the Closing of the HPI Agreement Xxxxxxxxxx shall acquire all of
Health Shares from HPI in consideration for that number of the shares of
Common Stock of HPI currently owned by Xxxxxxxxxx which, after giving
consideration to the planned reverse split of such common shares as
contemplated by the HPI Agreement, will leave Xxxxxxxxxx as the owner of
100,000, post-reverse split shares of HPI common stock (the "Residual
Shares"). For purposes of this provision, the number of HPI shares owned by
Xxxxxxxxxx shall also include any and all such shares owned by Xxxxxxxxx
Xxxxxxxxxx, his wife, and Xxxxxxx Xxxxxxxxxx, his son, it being understood
and agreed that the ownership of the Residual Shares shall be as determined
by Xxxxxxxxxx. The parties further understand and agree that should any of
the provisions of the HPI Agreement be changed or modified, or if the
parties shall agree otherwise, the number of Residual Shares may be changed
provided that in no event shall the Residual Shares be less than 100,000.
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2. COMMITMENT TO PAY DEBTS. Anything contained herein or in the HPI Agreement
to the contrary notwithstanding, the parties agree that Xxxxxxxxxx shall
use his best efforts following his acquisition of the Health Shares to
either pay or refinance all existing obligations of Health which are either
guaranteed by HPI or which may otherwise result in any material, unsecured
liability to HPI. As of the date hereof, the parties understand and agree
that such existing obligations include the existing mortgage on the
building owned by Health in Utica, New York and Health's existing
obligation to Foothills Capital Corp., its factor (collectively, the "HPI
Guaranteed Obligations"). In addition, Xxxxxxxxxx shall as soon as
practicable following the Closing of the HPI Agreement effect the sale of
up to 50,000 of the Residual Shares and apply all of the proceeds
therefrom, net of any capital gains taxes that may be due in connection
with the sale of such Residual Shares, to the reduction of the HPI
Guaranteed Obligations. In the event that such proceeds are not adequate to
fully pay the HPI Guaranteed Obligations, Xxxxxxxxxx shall use his best
efforts to refinance such obligations or otherwise remove HPI from any
obligation in connection therewith. However, the parties agree that in no
event shall Xxxxxxxxxx be obligated to commit any more than the net
proceeds from the sale of 50,000 Residual Shares to the repayment of the
HPI Guaranteed Obligations, it being the intention of the parties that
Xxxxxxxxxx shall have available for his personal benefit not less than
50,000 Residual Shares.
3. CONTINUING LIEN. Xxxxxxxxxx agrees that to the extent that any HPI
Guaranteed Obligations remain unpaid that he shall use his best efforts as
the sole shareholder of Health to permit a continuing lien on the building
owned by Health in Utica, New York, which lien shall be superior to that of
any other party except for the present Mortgagee, until such time as all
HPI Guaranteed Obligations have been fully satisfied and duly released of
record.
4. MISCELLANEOUS. PROVISIONS. The following miscellaneous provisions shall be
observed in this Agreement.
a. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
b. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement among
the parties pertaining to the subject matter hereof, and supersedes all prior
and contemporaneous agreements and understandings of the parties in connection
herewith. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution of this Agreement.
c. FURTHER ASSURANCES. At any time and from time to time after the date
hereof, each party will execute such additional instruments and take such action
as may be reasonably requested by the other party to carry out the purposes of
this Agreement.
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d. NOTICES. All notices and communications required or permitted hereunder
shall be sufficient if made in writing and shall be deemed to have been given if
delivered in person or sent by postage prepaid, first class, registered or
certified mail, return receipt requested to the addresses first set forth above
or to such other or additional addresses as any party hereto shall reasonably
designate with respect to itself from time to time.
e. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of New York in the United States applicable to contracts entered into and to be
fully performed therein without regard to the laws of conflicts of the State of
New York.
f. AMENDMENT. This Agreement or any provision hereof, may not be changed,
waived, terminated or discharged except by means of a written supplemental
instrument signed by the party against whom enforcement of the change, waiver,
termination or discharge is sought.
g. ASSIGNMENT. This Agreement is personal to the Parties hereto and may not
be assigned, transferred to any other party or person. HEALTH-PAK, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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XXXXXXX X. XXXXXXXXXX, PRESIDENT
LIFE ENERGY TECHNOLOGY HOLDING COMPANY, LTD.
By: /s/ Xx. Xxxxxxxxxxx XxXxxxxxx
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XX. XXXXXXXXXXX XXXXXXXXX, CHIEF EXECUTIVE OFFICER
/s/ Xxxxxxx Xxxxxxxxxx
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XXXXXXX XXXXXXXXXX
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EXHIBIT C
Escrow Agreement
THIS ESCROW AGREEMENT made and entered into the 3 day of November 2000 by
and between Xx. Xxxxxxx Xxxxxxxxxx (for purposes of this agreement, the number
of Health Pa, Inc common shares owned by Xxxxxxxxxx shall also include any and
all such shares owned by Xxxxxxxxx Xxxxxxxxxx, his wife, and Xxxxxxx Xxxxxxxxxx,
his son, hereinafter referred to as ("XXXXXXXXXX") and Life Energy & Technology
Holdings, Ltd (ACQUIRING GROUP).
For and in consideration of the sum of $10.00 and other good and valuable
consideration the receipt and sufficiency of all of which is hereby
acknowledged, it is agreed by and between XXXXXXXXXX and ACQUIRING GROUP as
follows:
1. XXXXXXXXXX agree that simultaneously with the Closing of the HPI Agreement
Xxxxxxxxxx shall deliver into escrow $4,119,382 shares of Health-Pak common
stock currently owned by Xxxxxxxxxx as contemplated by the HPI Agreement,
which will leave Xxxxxxxxxx as the owner of 100,000, shares of HPI common
stock (the "Residual Shares"). For purposes of this provision, the number
of HPI shares owned by Xxxxxxxxxx shall also include any and all such
shares owned by Xxxxxxxxx Xxxxxxxxxx, his wife, and Xxxxxxx Xxxxxxxxxx, his
son, it being understood and agreed that the ownership of the Residual
Shares shall be as determined by Xxxxxxxxxx. The parties further understand
and agree that should any of the provisions of the HPI Agreement be changed
or modified, or if the parties shall agree otherwise, the number of
Residual Shares may be changed provided that in no event shall the Residual
Shares be less than 100,000.
2. XXXXXXXXXX COMMITMENT TO PAY DEBTS:. Anything contained herein or in the
HPI Agreement to the contrary notwithstanding, the parties agree that
Xxxxxxxxxx shall use his best efforts following his acquisition of the
Health Shares to either pay or refinance all existing obligations of Health
which are either guaranteed by HPI or which may otherwise result in any
material, unsecured liability to HPI. As of the date hereof, the parties
understand and agree that such existing obligations include the existing
mortgage on the building owned by Health in Utica, New York and Health's
existing obligation to Foothills Capital Corp., its factor (collectively,
the "HPI Guaranteed Obligations"). Xxxxxxxxxx shall use his best efforts to
refinance such obligations or otherwise remove HPI from any obligation in
connection therewith. However, the parties agree that in no event shall
Xxxxxxxxxx be obligated to commit any more than the net proceeds from the
sale of 50,000 Residual Shares to the repayment of the HPI Guaranteed
Obligations, it being the intention of the parties that Xxxxxxxxxx shall
have available for his personal benefit not less than 50,000 Residual
Shares.
3. DELIVERY OF SHARES TO ACQUIRING GROUP: Upon completion and discharge of the
bankruptcy by the Court or at such time as the Bankruptcy is converted from
a Chapter 11 reorganization to a Chapter 7 liquidation all shares will be
delivered by escrow agent to Xx. Xxxxxxxxxxx XxXxxxxxx for distribution to
the original investors in Life Energy Technology Holdings, Ltd or their
designees.
4. MISCELLANEOUS. PROVISIONS. The following miscellaneous provisions shall be
observed in this Agreement.
a. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
b. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement among
the parties pertaining to the subject matter hereof, and supersedes all prior
and contemporaneous agreements and understandings of the parties in connection
herewith. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution of this Agreement.
c. FURTHER ASSURANCES. At any time and from time to time after the date
hereof, each party will execute such additional instruments and take such action
as may be reasonably requested by the other party to carry out the purposes of
this Agreement. d. NOTICES. All notices and communications required or permitted
hereunder shall be sufficient if made in writing and shall be deemed to have
been given if delivered in person or sent by postage prepaid, first class,
registered or certified mail, return receipt requested to the addresses first
set forth above or to such other or additional addresses
