CONTRIBUTION AGREEMENT
BETWEEN
IMMUNOTECHNOLOGY CORPORATION
AND
PETALS DECORATIVE ACCENTS, LLC
June 23, 2006
Table of Contents
Page
1. DEFINITIONS........................................................1
2. CONTRIBUTION OF ASSETS BY PETALS...................................4
2.1 Contribution of Assets.............................................4
2.2 Excluded Assets....................................................5
2.3 Assumption of Liabilities..........................................5
2.4 Liabilities Not Assumed............................................5
2.5 Capital Contribution...............................................5
2.6 Certain Tax Matters................................................6
2.7 Deliveries at the Closing..........................................6
3. REPRESENTATIONS AND WARRANTIES OF PETALS...........................7
3.1 Organization of Petals.............................................7
3.2 Subsidiaries.......................................................7
3.3 Authorization of Transaction.......................................7
3.4 Noncontravention...................................................7
3.5 Title to Assets....................................................7
3.6 Financial Statements of Petals.....................................8
3.7 Material Liabilities...............................................8
3.8 Tax Matters........................................................8
3.9 Compliance with Laws...............................................8
3.10 Real Property......................................................8
3.11 Intellectual Property..............................................9
3.12 Contracts..........................................................9
3.13 Accounts Receivable................................................9
3.14 Litigation.........................................................9
3.15 Consents 9
3.16 Finder's Fees......................................................9
3.17 Officers and Directors.............................................9
4. REPRESENTATIONS AND WARRANTIES OF IMMUNO..........................10
4.1 Organization......................................................10
4.2 Foreign Qualification.............................................11
4.3 Subsidiaries......................................................11
4.4 Authorization of Transaction......................................11
4.5 Noncontravention..................................................11
4.6 Financial Statements of Immuno....................................12
4.7 Operation of Business............................................12
4.8 Material Liabilities..............................................12
4.9 Tax Matters.......................................................12
4.10 Compliance with Laws..............................................12
4.11 Real Property.....................................................13
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4.12 Intellectual Property.............................................13
4.13 Contracts.........................................................13
4.14 Litigation........................................................13
4.15 Employees.........................................................13
4.16 Issuance of Additional Shares of Common Stock.....................13
4.17 SEC Reports.......................................................13
4.18 Transactions with Officers and Directors..........................14
4.19 Officers and Directors............................................14
4.20 Consents 15
4.21 Finder's Fees.....................................................15
4.22 Takeover Statutes; Rights Agreement...............................15
5. PRE-CLOSING OBLIGATIONS...........................................15
5.1 Obligations of the Parties........................................15
5.2 Conduct of Business Prior to Closing..............................15
5.3 Conduct of Immuno Prior to Closing................................16
5.4 No Negotiation....................................................17
5.5 SEC Reporting.....................................................17
6. CONDITIONS TO OBLIGATION TO CLOSE.................................17
6.1 The Closing.......................................................17
6.2 Conditions to the Obligations of Immuno...........................18
6.3 Conditions to Obligations of Petals...............................18
7. ABANDONMENT.......................................................20
8. CLOSING AND TERMINATION...........................................21
8.1 Fees .........................................................21
8.2 Termination.......................................................21
9. FURTHER AGREEMENTS; 1934 ACT REPORTING............................21
10. PUBLIC DISCLOSURE.................................................21
11. INDEMNIFICATION...................................................21
12. LIMITATION ON LIABILITY; NO THIRD PARTY BENEFICIARIES.............21
13. FURTHER ASSURANCES................................................21
14. NO WAIVER.........................................................22
15. GOVERNING LAW.....................................................22
16. RULES OF CONSTRUCTION.............................................22
17. ASSIGNMENT........................................................22
18. NOTICES...........................................................22
19. BINDING AGREEMENT.................................................24
20. COUNTERPARTS......................................................24
21. SEVERABILITY......................................................24
22. DELAYS OR OMISSIONS...............................................24
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CONTRIBUTION AGREEMENT
This Contribution Agreement is entered into effective as of this 23rd
day of June, 2006 by and between ImmunoTechnology Corporation, a Delaware
corporation ("Immuno"), and Petals Decorative Accents, LLC, a Delaware LLC
("Petals"). Immuno and Petals are collectively referred to herein as the
"Parties."
WHEREAS, Petals is in the business of designing, assembling, marketing
and selling silk flowers and trees by mail order and its website (the
"Business");
WHEREAS, Petals wishes to sell to Immuno, and Immuno wishes to buy from
Petals, substantially all of the assets owned by Petals that are used in
connection with or arise or at any time have arisen from the Business, on the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS. When used herein, the following terms shall have the following
meanings:
"Acquired Accounts Receivable" has the meaning set forth in Section
2.1(a)(iii).
"Acquired Assets" has the meaning set forth in Section 2.1.
"Acquired Inventory" has the meaning set forth in Section 2.1(a)(ii).
"Assumed Contracts" has the meaning set forth in Section 2.1(e).
"Assumed Liabilities" has the meaning set forth in Section 2.3.
"Balance Sheet" has the meaning set forth in Section 3.6.
"Balance Sheet Date" has the meaning set forth in Section 3.6.
"Business Day" means any day other than Saturday, Sunday or a day on
which banking institutions are not required to be open in Ridgefield,
Connecticut.
"Capital Contribution" has the meaning set forth in Section 2.5.
"Closing" has the meaning set forth in Section 6.1.
"Closing Date" has the meaning set forth in Section 6.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Equity Equivalents" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of the
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Parties and any rights to acquire the foregoing, including, without limitation,
any rights to acquire securities exercisable for, convertible into or
exchangeable for the foregoing.
"Excluded Liabilities" has the meaning set forth in Section 2.4.
"Financial Statements of Immuno" has the meaning set forth in Section
4.6.
"Financial Statements of Petals" has the meaning set forth in Section
3.6.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Governmental Authorizations" means any: (a) permit, license,
certificate, franchise, concession, approval, consent, ratification, permission,
clearance, confirmation, endorsement, waiver, certification, designation,
rating, registration, qualification or authorization issued, granted, given or
otherwise made available by or under the authority of any Governmental Body or
pursuant to any Law; or (b) right under any contract with any Governmental Body.
"Governmental Body" means any (i) nation, state, county, city, town,
village, district, or other jurisdiction of any nature; (ii) federal, state,
local, municipal, foreign, or other government; (iii) governmental or
quasi-governmental authority of any nature, including any governmental agency,
branch, department, board, official, or entity and any court or other tribunal;
(iv) body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or power of any
nature; and any Person, directly or indirectly, owned by and subject to the
control of any of the foregoing.
"Knowledge of Immuno" means the actual knowledge of Xxxx X. Xxxxxxxxx.
"Knowledge of Petals" means the actual knowledge of Xxxxxxxxxxx Xxxxxxx
and Xxxxx Xxxxxx.
"Law" means any federal, state, local, municipal, foreign or other law,
statute, constitution, principle of common law, resolution, ordinance, code,
edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted,
promulgated, implemented or otherwise put into effect by or under the authority
of any Governmental Body.
"Liability" means any liability or obligation (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, whether incurred or
consequential and whether due or to become due), including any liability for
Taxes.
"Lien" means any mortgage, pledge, lien, security interest, charge,
claim, equitable interest, encumbrance, restriction on transfer, conditional
sale or other title retention device or arrangement (including a capital lease),
deposit arrangement, collateral assignment, or restriction on the creation of
any of the foregoing, whether relating to any property or right or the income or
profits therefrom; provided, however, that the term "Lien" shall not include
statutory liens for Taxes to the extent that the payment thereof is not in
arrears or otherwise due.
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"Material Adverse Effect" means any event or events or any change in or
effect on the Parties' financial condition, business, operations, assets,
properties, or results of operations that, when taken as a whole, (i) has
materially interfered or is reasonably likely to materially interfere with the
ongoing operations of the Parties' business or (ii) singly or in the aggregate
has resulted in, or is reasonably likely to have, a material adverse effect on
the ongoing conduct of the business of the Parties; provided, however, that any
adverse effect arising out of or resulting from (x) an event or series of events
or circumstances affecting the United States economy generally or the economy
generally of any other country in which the Parties operate or (y) the entering
into of this Agreement and the consummation of the transactions contemplated
thereby, shall be excluded in determining whether a Material Adverse Effect has
occurred.
"Permitted Liens" means (a) liens for current taxes, water and sewer
charges and other statutory liens and trusts not yet due and payable or that are
being contested in good faith, (b) liens incurred in the ordinary course of
business, such as carriers', warehousemen's, landlords' and mechanics' liens and
other similar liens arising in the ordinary course of business, (c) liens on
personal property leased under operating leases, (d) liens, pledges or deposits
incurred or made in connection with workmen's compensation, unemployment
insurance and other social security benefits, or securing the performance of
bids, tenders, leases, contracts (other than for the repayment of borrowed
money), statutory obligations, progress payments, surety and appeal bonds and
other obligations of like nature, in each case incurred in the ordinary course
of business, (e) pledges of or liens on manufactured products as security for
any drafts or bills of exchange drawn in connection with the importation of such
manufactured products in the ordinary course of business, (f) liens or other
claims arising under Article 2 of the Uniform Commercial Code that are special
property interests in goods identified as goods to which a contract refers, (g)
liens arising under Article 9 of the Uniform Commercial Code that are purchase
money security interests, (h) such imperfections or minor defects of title,
easements, rights-of-way and other similar restrictions (if any) as are
insubstantial in character, amount or extent, do not materially detract from the
value or interfere with the present or proposed use of the properties or assets
of the party subject thereto or affected thereby, and do not otherwise
materially adversely affect or impair the business or operations of such party,
(i) liens associated with certain lines of credit provided to Petals through
Ridgefield Bank, and (j) liens associated with the term notes issued by Petals
to Southridge Partners, LP and Southshore Capital Management, Ltd.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a Governmental Body (or any department, agency, or political
subdivision thereof).
"Subsidiary" means with respect to any Person, (i) any corporation at
least a majority of whose outstanding voting stock is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries; (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
and (iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition, "voting
stock" means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
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for the election of a majority of the directors (or the equivalent) of such
Person other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Tax" or "Taxes" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
ss. 59A), customs duties, capital stock, franchise, profits, withholding, social
security (or similar, including FICA), unemployment, disability, real property,
personal property, sales, use, transfer, registration, value added, alternative
or add-on minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
"Tax Return" shall mean any return, filing, questionnaire, information
return, election or other document required or permitted to be filed, including
requests for extensions of time, filings made with respect to estimated tax
payments, claims for refund and amended returns that may be filed, for any
period with any Tax authority (whether domestic or foreign) in connection with
any Tax (whether or not a payment is required to be made with respect to such
filing), including any schedule or attachment thereto and any amendment thereof.
2. CONTRIBUTION OF ASSETS BY PETALS.
2.1 Contribution of Assets. At the Closing, Petals shall sell, transfer, assign,
convey and deliver to Immuno, and Immuno shall purchase, acquire and accept from
Petals, subject to and upon the terms and conditions contained herein, free and
clear of any Lien, other than Permitted Liens, all of the right, title and
interest of Petals in and to all of the assets and property, real, personal and
mixed, tangible and intangible, used in or forming a part of the Business, as
the same shall exist as of the Closing (collectively, the "Acquired Assets"),
including, without limitation, the following:
(a) All assets of Petals reflected on the Balance Sheet and all assets of Petals
that have been acquired since the Balance Sheet Date (other than assets that
have been disposed of in the ordinary course of business since the Balance Sheet
Date), including without limitation:
(i) all the furniture, furnishings, office equipment and other
tangible personal property;
(ii) all inventory (the "Acquired Inventory");
(iii) all Petals' trade accounts and notes receivable (the
"Acquired Accounts Receivable");
(b) To the extent they are assignable or transferable under applicable law, all
rights of Petals under all licenses, permits, authorizations, orders,
registrations, certificates, variances, approvals, consents and franchises used
or useful in connection with the operation of the Business of Petals, or any
pending applications relating to any of the foregoing, including all
governmental permits, licenses, authorizations, approvals and consents;
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(c) All intellectual property, goodwill associated therewith, licenses and
sublicenses granted in respect thereto and rights thereunder, remedies against
infringements thereof and rights to protection of interest therein, including
all trade names, trademarks, service marks, copyrights, and other names;
(d) All customer, distributor, supplier and mailing lists of Petals;
(e) All rights of Petals under any of the contracts and agreements listed on
Schedule 2.1(e) (the "Assumed Contracts"), and all open customer purchase
orders;
(f) All telephone, facsimile and other communication lines and numbers;
(g) All files, plans, documents, correspondence, lists, plats, architectural
plans, drawings, notebooks, specifications, creative materials, advertising and
promotional materials, marketing materials, studies, reports, equipment repair,
maintenance or service records relating to Petals and the Business whether
written or electronically stored or otherwise recorded; and
(h) All business and financial records, books and ledgers; provided that Petals
shall be entitled to retain, in both written and electronic form, copies of such
records relating to Petal's corporate existence, financial statements and
operating results as may be necessary for the purposes of defending any legal
claims made against it and preparing its financial statements and tax returns.
2.2 Excluded Assets. All rights of Petals under this Agreement shall be excluded
from the Acquired Assets to be sold, assigned, transferred, conveyed and
delivered to Immuno hereunder, and to the extent in existence on the Closing
Date, shall be retained by Petals.
2.3 Assumption of Liabilities. On the terms and subject to the conditions set
forth herein and except as contemplated by Section 2.4 hereof, from and after
the Closing, Immuno will assume and satisfy or perform when due all of the
Liabilities of Petals which are not Excluded Liabilities (as defined below) (the
"Assumed Liabilities") including, without limitation:
(a) Liabilities associated with or arising out of the Business of Petals.
(b) Liabilities under the Assumed Contracts listed on Schedule 2.1(e); and
(c) Liabilities of Petals set forth on Schedule 2.3(c).
2.4 Liabilities Not Assumed. Immuno will not assume or perform any Liabilities
included on Schedule 2.4 (the "Excluded Liabilities"). Without limiting the
generality of the foregoing, Immuno specifically assumes no liability for, and
Petals specifically retains sole responsibility for, the Excluded Liabilities
(whether or not contemplated by Section 2.3).
2.5 Capital Contribution. On the terms and subject to the conditions of this
Agreement, at the Closing, Petals shall convey, assign, transfer and deliver all
right, title and interest in the Acquired Assets as a contribution to the
capital of Immuno in exchange for (i) Immuno's assumption of the Assumed
Liabilities, and (ii) the issuance by Immuno to Petals of 90,000,000 shares of
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Common Stock of Immuno, par value $.00001 per share "Immuno Common Stock",
10,800 shares of Series A Convertible Preferred Stock, par value $.00001 per
share (the "Series A Preferred Stock") and 240 shares of Series B Convertible
Preferred Stock, par value $.00001 per share (the "Series B Preferred Stock").
The shares of Common Stock, Series A Preferred Stock and Series B Preferred
Stock received by Petals pursuant to this Section 2.5 and herein after is
referred to as the "Share Consideration".
2.6 Certain Tax Matters. The parties intend that the contribution by Petals of
the Acquired Assets to Immuno pursuant to this Agreement in exchange for
Immuno's assumption of the Assumed Liabilities and issuance of the Share
Consideration will constitute transfers of property in exchange for equity of
Immuno that qualifies for nonrecognition of gain under Section 351 of the Code;
provided, however, that nothing herein shall constitute a representation or
warranty by either of the Parties hereto as to the Tax consequences to any Party
of the transactions hereunder. The Parties and each of their respective
affiliates shall, for all federal, state and local income tax purposes, treat
the transactions effected pursuant to this Agreement collectively constituting a
transaction under Section 351 of the Code and agree to take no tax or accounting
position (including for financial accounting purposes, regulatory reporting
purposes and tax purposes) inconsistent with the treatment of this transaction
as a transaction under Section 351 of the Code. Immuno agrees, that if the
contribution of the Acquired Assets and the assumption of Liabilities pursuant
to this Agreement results in a tax liability to Petals or its affiliates (a
"Petals Tax Liability"), Immuno shall indemnify Petals or such affiliate for the
amount equal to the Petals Tax Liability reduced by the portion of such Petals
Tax Liability that is directly attributable to the assumption by Immuno of the
Liabilities included on Schedule 2.3(c) attached hereto.
2.7 Deliveries at the Closing.
(a) At the Closing, Petals will deliver to Immuno (i) a Xxxx of Sale in the form
attached hereto as Exhibit A (the "Xxxx of Sale"), duly executed by Petals (ii)
the Assignment and Assumption Agreement, duly executed by Petals, the form
attached hereto as Exhibit B (the "Assignment and Assumption Agreement") (iii)
the various agreements, instruments, certificates and documents referred to in
Section 6, duly executed by the appropriate Petals officer (iv) such other
instruments of sale, transfer, conveyance and assignment as Immuno and its
counsel may request duly executed by the appropriate authorized officer of
Petals, and (v) all other previously undelivered instruments and documents that
Petals is required to deliver pursuant to this Agreement. Simultaneously with
such delivery, Petals shall put Immuno in possession and operating control of
the Acquired Assets, free and clear of all Liens, other than Permitted Liens, or
any other encumbrances of any kind whatsoever.
(b) At the Closing, Immuno will deliver to Petals (i) the Share Consideration,
(ii) the Assignment and Assumption Agreement, duly executed by Immuno, (iii) the
various agreements, instruments, certificates and documents referred to in
Section 6, duly executed by Immuno (iv) all other previously undelivered
instruments and documents that Immuno is required to deliver pursuant to this
Agreement.
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3. REPRESENTATIONS AND WARRANTIES OF PETALS. Petals represents and warrants to
Immuno that, except as set forth in the schedule of exceptions, dated as of the
date of this Agreement, the statements contained in this Section 3 are correct
and complete as of the date of this Agreement and, unless a date is specified in
such representation and warranty, will be correct and complete as of the Closing
Date (as though made on the Closing Date and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 3).
3.1 Organization of Petals. Petals is a limited liability corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware. Except as set forth on Schedule 3.1, Petals is qualified as a foreign
corporation in all jurisdictions where its business or ownership of assets or
properties so requires, except where the failure to be so qualified would not
have a Material Adverse Effect on the business or financial condition of Petals.
The business of Petals does not require it to be registered as an investment
company or investment adviser as such terms are defined under the Investment
Company Act of 1940 and the Investment Advisers Act of 1940, each as amended.
3.2 Subsidiaries. Petals has no Subsidiaries.
3.3 Authorization of Transaction. Petals has full power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement and the transactions contemplated hereby have been duly approved by
the members of Petals and no other action on the part of Petals is necessary to
authorize this Agreement or the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Petals and constitutes a valid and
binding obligation of Petals, enforceable against Petals in accordance with its
terms, except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and subject to (i) general principals of equity
and (ii) the availability of specific performance or other equitable or legal
remedies.
3.4 Noncontravention. The execution, delivery and performance of this Agreement
by Petals and the consummation by Petals of the transactions contemplated hereby
do not and will not: (a) conflict with the Petal's charter documents or
Operating Agreement, as amended, (b) violate any law, regulation, order,
judgment or decree applicable to Petals or any of its assets or properties, or
(c) result in a default or acceleration of any obligation under, or give rise to
any obligation under, any agreement or instrument applicable to Petals or any of
its assets or properties. Except as set forth on Schedule 3.15, no waiver,
consent, approval or authorization of any person is required to be made or
obtained by Petals in connection with the execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated hereby and the
assignment by Petals to Immuno of the Purchased Assets.
3.5 Title to Assets. Petals owns and has good and marketable title to, all of
the Acquired Assets, free and clear of any Lien, other than Permitted Liens. The
Acquired Assets are, in the aggregate, sufficient and adequate for the conduct
after the Closing of the operations of Petals as currently conducted. There is
no material property or asset used by Petals in the conduct of the Business as
presently operated which is not an Acquired Asset. The Acquired Assets are in
good operating condition and repair, ordinary wear and tear expected.
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3.6 Financial Statements of Petals. The financial statements of Petals,
consisting of its audited balance sheet as at September 3, 2005, and its audited
statement of operations, members' equity cash flows for the year ended September
3, 2005, all together with accompanying notes, delivered to Immuno prior to the
Closing, have been audited by an independent registered public accounting firm
registered with the PCAOB and fairly present, in all material respects, the
consolidated financial position, results of operations and other information
purported to be shown therein of Petals, at the date and for the respective
periods to which they apply. The unaudited financial statements of Petals,
consisting of its balance sheet as at February 28, 2006, its statement of
income, statement of members' equity and statement of cash flows for the six
months ended February 28, 2006, delivered to Immuno prior to the Closing, have
been prepared in accordance with generally accepted accounting principles, have
been adjusted for all normal and recurring accruals, and fairly present the
consolidated financial position, results of operations and other information
purported to be shown therein of Petals, at the date and for the respective
periods to which they apply. The audited financial statements and the unaudited
financial statements of Petals are hereinafter referred to as the "Petals
Financial Statements".
3.7 Material Liabilities. Except as set forth on Schedule 3.7, there are no
known material Liabilities (including, but not limited to material tax
Liabilities) or material claims against Petals (whether such Liabilities or
claims are contingent or absolute, direct or indirect, matured or unmatured) not
described in the Petals Financial Statements, other than Liabilities incurred in
the ordinary course of business since the date of the Petals Financial
Statements.
3.8 Tax Matters. All federal, state, county and local income, excise, property
and other material tax returns required to be filed by Petals have been filed
and all required taxes, fees assessments have been paid or an adequate reserve
therefor has been established as described in the Petals Financial Statements.
All tax returns filed by Petals are correct and complete in all material
respects. The income tax returns of Petals have never been audited by any
authority empowered to do so, where any such audit could reasonably be expected
to have a Material Adverse Effect. All taxes required by law to be withheld or
collected have been so withheld or collected and, to the extent required, paid
to the proper Governmental Body, except where the failure to do so could
reasonably be expected to have a Material Adverse Effect.
3.9 Compliance with Laws. To the Knowledge of Petals, since June 1, 2004, Petals
has in all material respects operated the Business and conducted its affairs in
compliance with all applicable laws, rules and regulations, except where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect. Petals has all licenses, permits, orders, and approvals from all
governmental bodies required for the conduct of its businesses and is not in
violation of any such license, permit, order, or approval, where the lack of
such license, permit, etc. would have a Material Adverse Effect. All such
licenses, permits, orders and approvals are in full force and effect, and no
suspension or cancellation thereof has been threatened.
3.10 Real Property. Petals does not own any real property.
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3.11 Intellectual Property. Except as set forth on Schedule 3.11 Petals has no
patents, patent applications, trademarks, trademark registrations, trade names,
copyrights, copyright registrations or applications therefor.
3.12 Contracts. Copies of all material written agreements, contracts,
arrangements, understandings and commitments, including, without limitation,
real estate leases and loan agreements, to which Petals is a party, by which
Petals is bound, or from which Petals is entitled to receive substantial
benefits, and a summary of the provisions of each material oral contract, have
been made available to Immuno.
3.13 Accounts Receivable. The accounts receivable, net of reserves, set forth in
the Petals Financial Statements represent amounts due for goods sold or services
rendered by Petals in the ordinary course of business and, except as reserved
for in the Petals Financial Statements, are, to the best Knowledge of Petals,
collectable in the ordinary course of business, except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.
3.14 Litigation. Except as set forth on Schedule 3.14, there are no legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature against Petals which could reasonably be expected
to have a Material Adverse Effect or which challenge the validity or propriety
of the transactions contemplated by this Agreement and, to Petals' Knowledge
there is no reasonable basis for any such proceeding, claim, action or
governmental investigation. Petals is not a party to or bound by any order,
judgment or decree which could reasonably be expected to have a Material Adverse
Effect.
3.15 Consents. Schedule 3.15 sets forth a true, correct and complete list of the
identities of any Person whose consent or approval is required and the matter,
agreement or contract to which such consent relates in connection with the sale,
transfer, assignment or conveyance by Petals of any of the Acquired Assets.
3.16 Finder's Fees. Petals knows of no person who rendered any service in
connection with the introduction of Immuno or Petals to each other, which is
being compensated through a separate agreement between itself and Petals, and
they know of no claim for a "finder's fee" or similar type of fee in connection
with the Agreement and the other transactions contemplated hereby.
3.17 Officers and Directors. Except as set forth on Schedule 3.17, Since January
1, 2001, no officer or director of Petals has been the subject of:
(a) a petition under the Federal bankruptcy laws or any other insolvency
law nor has a receiver, fiscal agent or similar officer been appointed
by a court for the business or property of such person, or any
partnership in which he was a general partner at or within two years
before the time of such filing, or any corporation or business
association of which he was an executive officer at or within two years
before the time of such filing;
(b) a conviction in a criminal proceeding or a named subject of a pending
criminal proceeding (excluding traffic violations which do not relate
to driving while intoxicated);
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(c) any order, judgment or decree, not subsequently reversed, suspended or
vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining him from, or otherwise limiting, the following
activities:
(i) Acting as a futures commission merchant, introducing broker, commodity
trading advisor, commodity pool operator, floor broker, leverage
transaction merchant, any other person regulated by the United States
Commodity Futures Trading Commission or an associated person of any of
the foregoing, or as an investment adviser, underwriter, broker or
dealer in securities, or as an affiliated person, director or employee
of any investment company, bank, savings and loan association or
insurance company, or engaging in or continuing any conduct or practice
in connection with such activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection with the purchase or sale of any
security or commodity or in connection with any violation of Federal,
state or other securities laws or commodities laws;
(d) any order, judgment or decree, not subsequently reversed, suspended or
vacated, of any Federal, state or local authority barring, suspending
or otherwise limiting for more than 60 days the right of such person to
engage in any activity described in the preceding sub-paragraph, or to
be associated with persons engaged in any such activity; (e) a finding
by a court of competent jurisdiction in a civil action or by the
Commission to have violated any securities law, regulation or decree
and the judgment in such civil action or finding by the Commission has
not been subsequently reversed, suspended or vacated; or
(f) a finding by a court of competent jurisdiction in a civil action or by
the Commodity Futures Trading Commission to have violated any federal
commodities law, and the judgment in such civil action or finding by
the Commodity Futures Trading Commission has not been subsequently
reversed suspended or vacated.
(g) Petals has no pension plan, profit sharing or similar employee benefit
plan.
4. REPRESENTATIONS AND WARRANTIES OF IMMUNO. Immuno represents and
warrants to Petals that the statements contained in this Section 4 are
correct and complete as of the date of this Agreement and, unless a
date is specified in such representation and warranty, will be correct
and complete as of the Closing Date (as though made on the Closing Date
and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 4).
4.1 Organization. Immuno is a duly organized and validly existing corporation in
good standing under the laws of the State of Delaware, authorized to issue
100,000,000 shares of Immuno Common Stock and 10,000,000 shares of preferred
stock, $.00001 par value. Immediately prior to the Closing Date, there will be
issued and outstanding, 6,150,000 shares of Immuno Common Stock, all of which
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will be fully paid and nonassessable and no shares of Immuno Preferred Stock.
Except as set forth on Schedule 4.1 and except for the securities being issued
by Immuno pursuant to this Agreement, there are no issued or outstanding
options, warrants or other rights, contingent or otherwise, to purchase or
acquire shares of Immuno Common Stock or any issued or outstanding securities of
any nature convertible into shares of Immuno Common Stock. The issued and
outstanding shares of Immuno Common Stock have all been issued pursuant to an
effective registration statement or an appropriate exemption from the
registration requirements of the Securities Act and from any applicable
registration requirements of the various states. The issued and outstanding
capital stock of Immuno immediately following the Closing, giving effect to the
transactions contemplated by this Agreement and by the Immuno Debt Restructuring
Agreements (as defined below), shall be as set forth on Schedule 4.1.
4.2 Foreign Qualification. Immuno is qualified as a foreign corporation in all
jurisdictions where its business or ownership of assets or properties so
requires, except where the failure to be so qualified would not have a Material
Adverse Effect on the business or financial condition of Immuno. Schedule 4.2
sets forth a list of all jurisdictions in which Immuno is qualified to business
as a foreign corporation. The business of Immuno does not require it to be
registered as an investment company or investment adviser as such terms are
defined under the Investment Company Act of 1940 and the Investment Advisers Act
of 1940, each as amended.
4.3 Subsidiaries. Immuno has no Subsidiaries.
4.4 Authorization of Transaction. Immuno has the requisite corporate power and
authority to enter into this Agreement and carry out its/his obligations
hereunder. The execution, delivery and performance of this Agreement by Immuno
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Immuno and no other action on the part
of Immuno is necessary to authorize this Agreement or the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Immuno, and constitutes a valid and binding obligation of Immuno
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights, and subject to (i) general principles of
equity and (ii) the availability of specific performance or other equitable or
legal remedies.
4.5 Noncontravention. The execution, delivery and performance of this Agreement
by Immuno and the consummation by Immuno of the transactions contemplated hereby
do not and will not: (a) conflict with the Immuno's charter documents or
Operating Agreement, as amended, (b) violate any law, regulation, order,
judgment or decree applicable to Immuno or any of its assets or properties, or
(c) result in a default or acceleration of any obligation under, or give rise to
any obligation under, any agreement or instrument applicable to Immuno or any of
its assets or properties. Except as set forth on Schedule 4.5, no waiver,
consent, approval or authorization of any person is required to be made or
obtained by Immuno in connection with the execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated hereby, the
assignment by Petals to Immuno of the Purchased Assets and the issuance by
Immuno of the Share Consideration.
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4.6 Financial Statements of Immuno. The financial statements of Immuno,
consisting of its audited balance sheet as at June 30, 2005, and its audited
statement of operations, members' equity cash flows for the year ended June 30,
2005, all together with accompanying notes, as set forth in Immuno's Annual
Report on Form 10-KSB, have been audited by an independent registered public
accounting firm registered with the PCAOB and fairly present, in all material
respects, the consolidated financial position, results of operations and other
information purported to be shown therein of Immuno, at the date and for the
respective periods to which they apply. The unaudited financial statements of
Immuno, consisting of its balance sheet as at March 31, 2006, its statement of
income, statement of members' equity and statement of cash flows for the nine
months ended March 31, 2006, as set forth in Immuno's Quarterly Report on Form
10-QSB for the quarter ended March 31, 2006, (the "Form 10-QSB," and
collectively with all forms, reports, statements and documents that Immuno was
required to file with the Securities and Exchange Commission, the "SEC Reports")
have been prepared in accordance with generally accepted accounting principles,
have been adjusted for all normal and recurring accruals, and fairly present the
consolidated financial position, results of operations and other information
purported to be shown therein of Immuno, at the date and for the respective
periods to which they apply. The audited financial statements and the unaudited
financial statements of Immuno are hereinafter referred to as the "Immuno
Financial Statements".
4.7 Operation of Business. Immuno has had no business operations since June of
1992. There has not been any material change in the financial condition of
Immuno from that set forth in the Form 10-QSB except for transactions relating
to this Agreement and the incurring of expenses or Liabilities relating to this
Agreement.
4.8 Material Liabilities. Except as set forth on Schedule 4.8, there are, and at
the Closing will be, no Liabilities (including, but not limited to, tax
Liabilities) or claims against Immuno (whether such Liabilities or claims are
contingent or absolute, direct or indirect, and matured or unmatured) not
appearing on the Immuno Financial Statements. Except as set forth in the Immuno
Debt Restructuring Agreements, at the Closing Immuno will have no indebtedness
for borrowed money, accrued expenses or accounts payable. All fees and expenses
incurred by Immuno in connection with this Agreement and the transactions
contemplated hereby have been paid by Immuno prior to the Closing.
4.9 Tax Matters. All federal, state, county and local income, excise, property
or other tax returns required to be filed by Immuno have been filed and all
required taxes, fees or assessments have been paid or an adequate reserve
therefor has been set up in the Immuno Financial Statements. Immuno's income tax
returns have never been audited by any authority empowered to do so.
4.10 Compliance with Laws. To the Knowledge of Immuno, since June 1, 2004,
Immuno has in all material respects operated the business and conducted its
affairs in compliance with all applicable laws, rules and regulations, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Immuno has all licenses, permits, orders, and approvals
from all governmental bodies required for the conduct of its businesses and is
not in violation of any such license, permit, order, or approval, where the lack
of such license, permit, etc. would have a Material Adverse Effect. All such
licenses, permits, orders and approvals are in full force and effect, and no
suspension or cancellation thereof has been threatened.
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4.11 Real Property. Immuno has no fixtures, furniture, equipment, inventory or
accounts receivable.
4.12 Intellectual Property. Immuno has no patents, patent applications,
trademarks, trademark registrations, trade names, copyrights, copyright
registrations or applications therefor.
4.13 Contracts. Immuno has no material contracts to which it is a party,
except those between the parties hereto and as described in the SEC Reports.
4.14 Litigation. There are no legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of any nature
against Immuno, or challenging the validity or propriety of the transactions
contemplated by this Agreement and, to Immuno's best knowledge, there is no
reasonable basis for any such proceeding, claim, action or governmental
investigation. Immuno is not a party to or bound by any order, judgment or
decree which will, or might reasonably be expected to have a Material Adverse
Effect.
4.15 Employees. Except as set forth on Schedule 4.15, there have been: (i) no
salaried or otherwise compensated employees and no bonuses paid to any officer
or director of Immuno; (ii) no loans made to or transactions with any officer or
director of Immuno; (iii) no cash dividends or other cash distributions declared
or paid by Immuno; and (iv) no purchase by Immuno of any Immuno securities.
4.16 Issuance of Additional Shares of Common Stock. Except as set forth on
Schedule 4.16, Immuno has not issued or committed itself to issue, and prior to
the Closing Date will not issue or commit itself to issue any additional common
shares or any options, rights, warrants, or other securities convertible into
common shares, except as contemplated by this Agreement.
4.17 SEC Reports. Immuno has made available to Petals true and complete copies
of all SEC Reports. As of their respective dates, the SEC Reports and any forms,
reports and other documents filed by Immuno after the date of this Agreement
complied or will comply in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act
of 1934, as amended (the "Exchange Act"), as the case may be, and the rules and
regulations of the SEC thereunder applicable to such SEC Reports or such other
forms, reports or other documents, and none of the SEC Reports contained, or
will contain at the time they are filed, any untrue statement of a material fact
or omitted, or will omit at the time they are filed, to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of Immuno included in the SEC Reports comply as to form in
all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as permitted by Form 10-QSB of the SEC) and
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fairly present (subject, in the case of the unaudited statements, to normal,
recurring audit adjustments, which were not individually or in the aggregate
material) in all material respects the financial position of Immuno as at the
dates thereof and the results of its operations and cash flows for the periods
then ended.
4.18 Transactions with Officers and Directors. Except as set forth in the SEC
Reports or otherwise disclosed pursuant hereto, there are no loans, leases or
other contracts outstanding between Immuno and any officer or director of Immuno
or any person related to any officer or director of Immuno.
4.19 Officers and Directors. Since January 1, 2001, no officer or director of
Immuno has been the subject of:
(a) a petition under the Federal bankruptcy laws or any other insolvency
law nor has a receiver, fiscal agent or similar officer been appointed
by a court for the business or property of such person, or any
partnership in which he was a general partner at or within two years
before the time of such filing, or any corporation or business
association of which he was an executive officer at or within two years
before the time of such filing;
(b) a conviction in a criminal proceeding or a named subject of a pending
criminal proceeding (excluding traffic violations which do not relate
to driving while intoxicated);
(c) any order, judgment or decree, not subsequently reversed, suspended or
vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining him from, or otherwise limiting, the following
activities:
(i) Acting as a futures commission merchant, introducing broker,
commodity trading advisor, commodity pool operator, floor broker,
leverage transaction merchant, any other person regulated by the United
States Commodity Futures Trading Commission or an associated person of
any of the foregoing, or as an investment adviser, underwriter, broker or
dealer in securities, or as an affiliated person, director or employee of
any investment company, bank, savings and loan association or insurance
company, or engaging in or continuing any conduct or practice in
connection with such activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection with the purchase or
sale of any security or commodity or in connection with any violation of
Federal, state or other securities laws or commodities laws;
(d) any order, judgment or decree, not subsequently reversed, suspended or
vacated, of any Federal, state or local authority barring, suspending
or otherwise limiting for more than 60 days the right of such person to
engage in any activity described in the preceding sub-paragraph, or to
be associated with persons engaged in any such activity;
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(e) a finding by a court of competent jurisdiction in a civil action or by
the Commission to have violated any securities law, regulation or
decree and the judgment in such civil action or finding by the
Commission has not been subsequently reversed, suspended or vacated; or
(f) a finding by a court of competent jurisdiction in a civil action or by
the Commodity Futures Trading Commission to have violated any federal
commodities law, and the judgment in such civil action or finding by
the Commodity Futures Trading Commission has not been subsequently
reversed suspended or vacated.
(g) Immuno has no pension plan, profit sharing or similar employee benefit
plan.
4.20 Consents. Except for the consent and approval of the Board of Directors of
Immuno, no consents or approvals of, or filings or registrations with, any third
party or any public body or authority are necessary in connection with (i) the
execution and delivery by Immuno of this Agreement and (ii) the consummation of
the Agreement and the other transactions contemplated hereby.
4.21 Finder's Fees. Immuno knows of no person who rendered any service in
connection with the introduction of Immuno or Petals to each other, which is
being compensated through a separate agreement between itself and Petals, and
they know of no claim for a "finder's fee" or similar type of fee in connection
with the Agreement and the other transactions contemplated hereby.
4.22 Takeover Statutes; Rights Agreement. The Immuno Board of Directors has, to
the extent such statutes are applicable, taken all action necessary to exempt
this Agreement and the transactions contemplated hereby, from any anti-takeover,
control share acquisition, fair price, moratorium or other similar statute of
the State of Delaware (each, a "Delaware Takeover Statute") that applies or
purports to apply to this Agreement or the other transactions contemplated
hereby. No stockholders rights plan, "poison pill" or similar plan or
arrangement exists with respect to any shares of Immuno capital stock.
5. PRE-CLOSING OBLIGATIONS
5.1 Obligations of the Parties. The Parties shall apply for and diligently
prosecute all applications for, and shall use commercially reasonable efforts
promptly to obtain, such consents, authorizations and approvals from such
Persons as shall be necessary to permit the consummation of the transactions
contemplated by this Agreement, and shall use commercially reasonable best
efforts to bring about the satisfaction as soon as practicable of all the
conditions contained in Section 6 and to effect the consummation of the
transactions contemplated by this Agreement.
5.2 Conduct of Business Prior to Closing. From the date of this Agreement and
until the Closing, except as contemplated by this Agreement or as otherwise
consented to by the Parties in writing, such consent not to be unreasonably
withheld, conditioned or delayed, each of the Parties agrees to:
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(a) Carry on its business only in the ordinary course of business and use
commercially reasonable efforts to preserve intact its present business
organization, keep available the services of its executive officers and key
employees and preserve its relationships with customers, clients, service
providers and others having material business dealings with it;
(b) Timely file all Tax Returns and timely withhold and pay all Taxes;
(c) Continue to provide the same kind, quality, frequency and timeliness of
service to each customer in a manner consistent with past practices;
(d) Comply with its obligations contained in this Agreement;
(e) Maintain such Party's assets in their present order and condition (including
routine or necessary maintenance), subject to normal wear and tear and normal
obsolescence, and, in the case of Petals, maintain insurance upon all of the
Acquired Assets of the kind and in the amounts existing as of the date of this
Agreement;
(f) Comply in all material respects with all Laws and Governmental
Authorizations applicable to it;
(g) Not take any action or omit to take any action, which action or omission
would result in a breach of any of the representations and warranties set forth
in this Agreement at, or as of any time prior to, the Closing;
(h) Not sell or otherwise transfer any of its assets outside the ordinary course
of business;
(i) Not amend, modify or terminate any of its material contracts, except for (i)
amendments or modifications required by any applicable law, (ii) renewals, or
(iii) non-material amendments in the ordinary course of business.
(j) Promptly advise the other Party, in writing, of any fact, condition,
occurrence or change known to the Party that would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on such Party,
as the case may be, or cause a Breach of this Section 5 or require an amendment
to a Party's Disclosure Schedule.
5.3 Conduct of Immuno Prior to Closing. From the date of this Agreement and
until the Closing, except as contemplated by this Agreement or as otherwise
consented to by Petals in writing, such consent not to be unreasonably withheld,
conditioned or delayed, Immuno agrees to:
(a) Except as contemplated by this Agreement, cause, permit or propose any
amendments to its certificate of incorporation, bylaws or other charter
documents, except as contemplated by this Agreement;
(b) Except as contemplated herein, not merge or consolidate with, or agree to
merge or consolidate with, or purchase substantially all of the assets of, or
otherwise acquire any business of, or enter into any joint venture or
partnership with, any Person;
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(c) Not maintain its books of account and records in other than its usual,
regular and ordinary manner, consistent with its past practice;
(d) Not declare set aside or pay any dividend or make any distribution in
respect to its capital securities except as contemplated by this Agreement, or
reacquire any of its capital stock, or issue or sell any capital securities or
rights to acquire capital securities; and
(e) Incur any indebtedness for borrowed money or guarantee any such indebtedness
of another person or enter into any arrangement having the economic effect of
the foregoing; and
(f) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of
capital stock or any securities convertible into shares of capital stock, or
subscriptions, rights, warrants or options to acquire any shares of capital
stock or any securities convertible into shares of capital stock, or enter into
other agreements or commitments of any character obligating it to issue any such
shares or convertible securities.
5.4 No Negotiation. During the period after the execution hereof and
prior to Closing, neither Party shall, directly or indirectly:
(a) solicit or encourage the initiation of any inquiry, proposal or offer from
any Person relating to a possible transaction similar to the transactions
contemplated in this Agreement;
(b) participate in any negotiations or discussions, or enter into any agreement
with, or provide, any non-public information to, any Person relating to or in
connection with any such transaction; or
(c) consider, entertain or accept any proposal or offer from any Person relating
to any such possible transaction.
Each Party shall promptly notify the other Party in writing of any material
inquiry, proposal or offer relating to any such transaction that is received by
it during the period specified at the beginning of this Section 5.4.
5.5 SEC Reporting. (a) Immuno shall use commercially reasonable efforts to
remain in compliance with all reporting and other requirements of the SEC
applicable to Immuno and to cure any past deficiencies in such reporting and
other requirements.
(b) Promptly following the execution of this Agreement, Immuno will prepare,
file with the SEC and transmit to each stockholder of record of Immuno an
information statement on Schedule 14F with respect to the election of directors
of Immuno of Petal's designees, as more fully described in Section 6.3(g) below.
6. CONDITIONS TO OBLIGATION TO CLOSE.
6.1 The Closing. The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place on such date as the Parties may mutually agree
following the satisfaction (or waiver) of the conditions to closing set forth in
Sections 6.2 and 6.3 (the "Closing Date"), but in no event later than July 21,
2006.
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6.2 Conditions to the Obligations of Immuno. The obligation of Immuno to
consummate the transactions contemplated by the closing of this Agreement is
subject to satisfaction of the following conditions prior to the Closing:
(a) Petals shall have delivered to Immuno audited financial statements as at and
for the years ended September 3, 2005 and August 28, 2004, and unaudited
financial statements for the six month period ending February 28, 2006 in a form
compliant with the requirements of Form 8-K as required to be filed within four
(4) days of the Closing.
(b) The representations and warranties of Petals contained in this Agreement
shall be true and correct on and as of the Closing Date with the same effect as
if made on and as of the Closing Date (other than such representations that are
made as of a specified date, which shall be true and correct as of such date);
and Immuno shall have received certificates to such effect signed by the Chief
Executive Officer of Petals, which certificates shall have the effect of Petals
making its representations and warranties under this Agreement as of the Closing
Date (other than such representations that are made as of a specified date,
which shall be remade on the Closing Date as of such specified date).
(c) Petals shall have performed and complied in all material respects with all
agreements and covenants required by this Agreement to be performed or complied
with by it at or prior to the Closing, and Immuno shall have received a
certificate to such effect signed on behalf of Petals by the Chief Executive
Officer of Petals.
(d) All authorizations, consents, waivers, approvals or other actions required
in connection with the execution, delivery and performance of this Agreement by
Petals and the consummation by Petals of the transactions contemplated hereby
shall have been obtained and shall be in full force and effect. Petals shall
have obtained the authorizations, consents, waivers, and approvals listed on
Schedule 6.2(c).
(e) Immuno shall have received an opinion from counsel to Petals substantially
in the form of Exhibit C hereto.
(f) Immuno and Petals shall have entered into the and delivered the Xxxx of Sale
and Assignment, attached hereto as Exhibit A, and the Agreement of Assignment
and Assumption of Liabilities attached hereto as Exhibit B.
(g) That Petals shall have provided the information necessary to complete the
Form 8-K required to be filed with the SEC within four (4) days of the Closing.
6.3 Conditions to Obligations of Petals. The obligations of Petals to consummate
the Agreement are subject to satisfaction of the following conditions prior to
the Closing:
(a) The representations and warranties of Immuno contained in this
Agreement shall be true and correct on and as of the Closing Date with
the same effect as if made on and as of the Closing date (other than
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such representations that are made as of a specified date, which shall
be true and correct as of such date); and Petals shall have received
certificates to such effect signed by the Chief Executive Officers or
President of Immuno, which certificates shall have the effect of Immuno
making its representations and warranties under this Agreement as of
the Closing Date (other than such representations that are made as of a
specified date, which shall be remade on the Closing Date as of such
specified date).
(b) Immuno shall have performed and complied in all material respects with
all agreements and covenants required by this Agreement to be performed
or complied with by them at or prior to the Closing, and Petals shall
have received a certificate to such effect signed on behalf of Immuno
by the Chief Executive Officer or President of Immuno.
(c) The Certificates of Designation of the Company setting forth the
rights, privileges and preferences of the Series A Preferred Stock, in
substantially the form of Exhibit D hereto, and the Series B Preferred
Stock, in substantially the form of Exhibit E hereto, shall have been
filed with the Secretary of State of the State of Delaware and shall
have become effective.
(d) All authorizations, consents, waivers, approvals or other actions
required in connection with the execution, delivery and performance of
this Agreement by Immuno and the consummation by Immuno of the
transactions contemplated hereby shall have been obtained and shall be
in full force and effect. Immuno shall have obtained any
authorizations, consents, waivers, approvals or other actions required
to prevent a breach or default by Immuno under any contract to which
Immuno is a party or for the continuation of any agreement to which
Immuno is a party.
(e) (i) Immuno shall have entered into an agreement or agreements,
(collectively the "Immuno Debt Restructuring Agreements") with each
creditor of Immuno listed on Schedule 6.3(e) hereto, in form and
substance reasonably satisfactory to Petals, pursuant to which:
(1) the indebtedness of Immuno to each such creditor in the
amount set forth in column C of such Schedule will be exchanged at
the Closing for that number of shares of Immuno Common Stock set
forth in column D of such Schedule;
(2) such creditor shall have agreed to accept in full
satisfaction of all remaining indebtedness of Immuno to such
creditor (except as set forth in clause (i)(3) below), the amount
set forth in column E of such Schedule, payable in cash at the
Closing, and in column F of such Schedule;
(3) such creditor shall have agreed upon the terms,
reasonably acceptable to Petals, upon which Immuno will repay,
after the Closing, the amount (if any) opposite the name of such
creditor in column F of such Schedule; and
(4) such creditor shall have agreed to execute and deliver
a general release with respect to all other claims such creditor
has or may have against Immuno.
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(ii) all of the transactions contemplated by the Immuno Debt Restructuring
Agreements shall have been consummated at or prior to the Closing.
(f) That Immuno's officers shall have resigned seriatim subject to the
consummation of the Agreement and Petals' designees, listed on Schedule
6.3(f), shall have been appointed, effective upon the consummation of
the Agreement.
(g) Immuno's directors, other than Xx. Xxxxxxxxx, shall have resigned
seriatim subject to the consummation of the Agreement and Petals'
designees, listed on Schedule 6.3(g), shall have been appointed,
subject to the consummation of the Agreement and, in the case of each
Petal's designee other than Xx. Xxxxx, to compliance by Immuno with
Rule 14F-1under the Exchange Act.
(h) That no transactions shall have been entered into by Immuno other than
as contemplated by this Agreement, except with the prior written
consent of Petals. (i) That no Material Adverse Change shall have
occurred in the financial condition of Immuno since March 31, 2006.
(j) Immuno shall have complied fully with the applicable securities or
"blue sky" laws of any state or other Governmental Body in connection
with the Agreement.
(k) That Petals shall have received an opinion from counsel to Immuno in
substantially the form of Exhibit F.
(l) All fees and expenses incurred by Immuno in connection with this
Agreement and the transactions contemplated hereby, including all
accrued and unpaid legal expenses, shall have been paid by Immuno.
(m) The Secretary of Immuno shall deliver to Petals a certificate attaching
copies of (i) Immuno's Certificate of Incorporation, as amended, (ii)
Immuno's Bylaws, as amended, and (iii) Immuno's Board of Directors
resolutions relating to the transactions contemplated by this
Agreement, and such certificate shall state that the copies of such
documents and resolutions are true and complete.
(n) Petals shall have obtained any authorizations, consents, waivers, or
approvals listed on Schedule 6.2(c).
(o) Immuno and Petals shall have entered into the and delivered the Xxxx of
Sale and Assignment, attached hereto as Exhibit A, and the Agreement of
Assignment and Assumption of Liabilities attached hereto as Exhibit B.
7. ABANDONMENT. This Agreement may be abandoned (a) by Petals, on the one
hand, or Immuno, on the other hand, acting by its members and Board of
Directors respectively, in the event of the failure at the Closing of
any condition in favor of such party to which the consummation of the
Agreement is subject, or (b) by the mutual consent of the parties,
acting by its members and Board of Directors respectively, at any time
after such adoption by such shareholders and members and prior to the
Closing. In the event of abandonment of this Agreement, the same shall
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become wholly void and of no effect and there shall be no further
liability or obligation hereunder on the part of any of the parties,
its members and Board of Directors respectively, or any other party to
this Agreement.
8. CLOSING AND TERMINATION.
8.1 Fees. Petals and Immuno shall be responsible for their own costs and
expenses incurred prior to or in connection with this Agreement.
8.2 Termination. In the event the Closing of this Agreement shall not take place
by July 21, 2006, then any party shall have the right to terminate this
Agreement in which event no party shall have any further right or obligation as
against any other.
9. FURTHER AGREEMENTS; 1934 ACT REPORTING. Within four (4) business days after
the execution of this Agreement and within four (4) business days after the
Closing, Immuno shall file an appropriate Current Report on Form 8-K with
respect to this Agreement pursuant to the Securities Exchange Act of 1934, as
amended. Prior to the filing of each such Form 8-K Current Report, Immuno shall
furnish to Petals and its counsel copies of such reports as proposed to be
filed, which reports shall be subject to Petals review and approval.
10. PUBLIC DISCLOSURE. Petals and Immuno will consult with each other, and to
the extent practicable, agree, before issuing any press release or otherwise
making any public statement with respect to the Agreement, and will not issue
any such press release or make any such public statement prior to such
consultation, except as may be required by law (including Rules 14d-9 and 14e-2
promulgated under the Exchange Act) or any listing agreement with a national
securities exchange.
11. INDEMNIFICATION. At and after the Closing, Immuno shall continue to
indemnify all prior officers and directors of Immuno to the maximum extent
permitted by the Certificate of Incorporation and Bylaws of Immuno. To the
extent Immuno obtains insurance covering its officers and directors, then it
will maintain such coverage for the present officers and directors of Immuno
with respect to claims arising from facts or events that occurred on or after
the Closing, for a period of five years from and after the Closing, if and to
the extent that maintaining such coverage does not in management's reasonable
discretion result in additional expense to Immuno.
12. LIMITATION ON LIABILITY; NO THIRD PARTY BENEFICIARIES. Nothing in this
instrument, expressed or implied, is intended or shall be construed to confer
upon or give to any Person other than the parties hereto and their respective
successors and assigns any remedy or claim under or by reason of this instrument
or any agreement, term, covenant, or condition hereof, and all agreements,
terms, covenants, and conditions contained herein shall be for the sole and
exclusive benefit of the parties hereto, and their respective successors and
assigns.
13. FURTHER ASSURANCES. Subject to terms and conditions herein provided and to
the fiduciary duties of the board of directors and officers or representatives
of any Party, each of the Parties agrees to use commercially reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
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consummate and make effective this Agreement and the transactions contemplated
hereby. In case at any time any further action, including, without limitation,
the obtaining of waivers and consents under any material contracts, is
necessary, proper or advisable to carry out the purposes of this Agreement, the
proper officers and directors or representatives of each Party to this Agreement
are hereby directed and authorized to use commercially reasonable efforts to
effectuate all required action.
14. NO WAIVER. Unless otherwise specifically agreed in writing to the contrary;
(i) the failure of any Party at any time to require performance by the other of
any provision of this Agreement shall not affect such Party's right thereafter
to enforce the same; (ii) no waiver by any Party of any default by any other
shall be valid unless in writing and acknowledged by an authorized
representative of the non-defaulting Party, and no such waiver shall be taken or
held to be a waiver by such Party of any other preceding or subsequent default;
and (iii) no extension of time granted by any Party for the performance of any
obligation or act by any other Party shall be deemed to be an extension of time
for the performance of any other obligation or act hereunder.
15. GOVERNING LAW. This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware, without reference to its conflicts of
laws principles, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof.
16. RULES OF CONSTRUCTION. The parties hereto 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.
17. ASSIGNMENT. No party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval 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. Any purported assignment in
violation of this Section 17 shall be void.
18. NOTICES. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be delivered by hand, sent via
overnight courier, sent by facsimile, or mailed by first class certified or
registered mail, return receipt requested, postage prepaid:
If to Petals: Petals Decorative Accents LLC.
Executive Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy to: Xxxxx Xxxx LLP
Seaport World Trade Center West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Immuno: ImmunoTechnology Corporation
Attention: Xxxx X. Xxxxxxxxx
Troika Capital, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Cohne, Xxxxxxxxx & Xxxxx
Attention: X.X. Xxxxxxx, Esq.
000 Xxxx 000 Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or entity or at such other address as any party shall
designate by notice to the other in accordance with this Section 18.
Notices provided in accordance with this Section 18 shall be deemed delivered
(i) upon personal delivery with signature required, (ii) one Business Day after
they have been sent to the recipient by a nationally recognized overnight
courier service (charges prepaid and signature required) (iii) upon
confirmation, answer back received, of successful transmission of a facsimile
message containing such notice if sent between 9 a.m. and 5 p.m., local time of
the recipient, on any business day, and as of 9 a.m. local time of the recipient
on the next Business Day if sent at any other time, or (iv) three business days
after deposit with the U.S. Postal Service. Copies of any notices hereunder may
be sent by email, but transmission by such means alone shall not constitute
delivery of notice under this Section 18.
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19. BINDING AGREEMENT. This Agreement represents the entire agreement among the
parties hereto with respect to the matters described herein and is binding upon
and shall inure to the benefit of the parties hereto and their legal
representatives, successors and permitted assigns. This Agreement may not be
assigned and, except as stated herein, may not be altered or amended except in
writing executed by the party to be charged.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be an original, but signatures transmitted by facsimile shall be deemed
originals for purposes of this Agreement, all of which, when taken together,
shall constitute one Agreement.
21. SEVERABILITY. The provisions of this Agreement shall be severable, so that
the unenforceability, validity or legality of any one provision shall not affect
the enforceability, validity or legality of the remaining provisions hereof.
22. DELAYS OR OMISSIONS. Except to the extent permitted by the terms and
conditions of this Agreement, without the prior written consent
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement as of the day and year first above written.
PETALS DECORATIVE ACCENTS, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
President
IMMUNOTECHNOLOGY CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------
President
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