EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION AND SHARE EXCHANGE
DATED AS OF JULY 1, 2002
BY AND AMONG
SOFTWALL EQUIPMENT CORPORATION
AND
U.S. TECHNICAL CONSULTANTS INC.
AGREEMENT AND PLAN OF REORGANIZATION AND SHARE EXCHANGE
This Agreement and Plan of Reorganization and Share Exchange (this
"Agreement") is entered into on July 1, 2002 by and between Softwall Equipment
Inc., a Utah corporation ("Softwall"), Xxxxxxx Xxxxxxxx, the majority
shareholder of Softwall ("Xx. Xxxxxxxx"), and U.S. Technical Consultants
Incorporated, a California corporation (the "Company").
WHEREAS, the Boards of Directors of Softwall and the Company have each
determined that it is in the best interests of their respective companies and in
the best interests of their respective shareholders to consummate the share
exchange provided for herein;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth herein, Softwall and Company approve and adopt this Agreement and covenant
and agree with each other as follows:
ARTICLE 1
THE SHARE EXCHANGE
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1.01. THE SHARE EXCHANGE. Subject to the terms and conditions of this
Agreement, in accordance with the applicable provisions of the Utah
Revised Business Corporation Act (the "URBC"), at the Effective Time
(as defined in Section 1.03 hereof), and subject to the requisite
approval of the shareholders of the Company, each issued and
outstanding share of the Company shall be exchanged into a number of
shares of Softwall as determined based on the Conversion Ratio (as
defined below), and the Company shall become a wholly owned subsidiary
of Softwall (the "Exchange").
1.02. ISSUANCE OF SHARES TO U.S. SOFTWALL. Subject to the terms and
conditions of this Agreement, immediately after the Effective Time, and
subject to the requisite approval of the shareholders of the Company,
the Company shall issue Softwall all of the authorized and unissued
shares of Common Stock of the Company.
1.03. CLOSING. The closing of the transactions contemplated hereby (the
"Closing") shall take place on July __, 2002 subject to the
satisfaction or waiver of each of the conditions set forth in Articles
6 and 7 hereof, or at such other time as the parties hereto agree (the
"Closing Date").
1.04. EFFECTIVE TIME. The Share Exchange shall become effective upon the
filing of Articles of Share Exchange (the "Articles of Share Exchange")
with the Secretary of State of Utah in accordance with the provisions
of the URBC (the "Effective Time").
1.05. DIRECTORS AND OFFICERS. All directors of Softwall existing immediately
prior to the Effective Time shall, at the Effective Time, automatically
be removed as directors, and simultaneously, Xxxx Xxxxxx and Xxxxx
Xxxxxxxxx shall become the sole directors of Softwall.
1.06. TAX FREE EXCHANGE - The parties intend that this acquisition and
exchange of shares is to be a tax free exchange/transaction pursuant to
Section 368(a)(1)(b) of the Internal Revenue Code of the United States.
1.07. RESCISSION AND CANCELLATION. As a condition to the Share Exchange,
Softwall and Xxxxxxx Xxxxxxxx, the majority shareholder of Softwall,
shall enter into a Consulting Agreement in the form attached hereto as
Exhibit A (the "Consulting Agreement"), pursuant to which, in exchange
for consulting services, Softwall shall (a) issue Xx. Xxxxxxxx a
Promissory Note in the principal amount of $125,000.00 (the "Promissory
Note"), in substantially the form attached to the Consulting Agreement
as Exhibit 1; and (b) issue Xx. Xxxxxxxx 183,411 shares of Softwall
Common Stock. In the event the Company becomes in "Default" (as defined
in the Xxxxxxxx Note) under the Xxxxxxxx Note, Xx. Xxxxxxxx may, at his
option, cancel and rescind the Share Exchange by delivering to the
Chief Executive Officer of the Company, an executed written notice of
the cancellation and rescission (the "Recession Notice"). If the
Default is not cured within 5 days after receipt of the Rescission
Notice, at the election of Xx. Xxxxxxxx, and with no action on the part
of the Company, Softwall, Xx. Xxxxxxxx or the shareholders of the
Company, (x) all Softwall Common Stock into which the Company Common
Stock shall have converted shall automatically reconvert back into
shares of Company Common Stock based on the reverse of the Conversion
Ratio, (y) all shares of Company Common Stock issued to Softwall shall
automatically be cancelled, and (z) the parties shall otherwise be
restored to their relative positions as they existed prior to the
Closing (the "Xxxxxxxx Option").
ARTICLE 2
SHARE EXCHANGE CONSIDERATION AND CONVERSION OF STOCK
----------------------------------------------------
2.01 CONVERSION OF STOCK. The parties have agreed that at the Effective Time,
the holders of Company Common Stock shall be issued an aggregate of 3.5
million shares of Softwall Common Stock (the "Aggregate Share Exchange
Consideration") after the currently contemplated 100-for-1 reverse split
of the Softwall Common Stock has been affected. At the Effective Time,
by virtue of the Share Exchange and without any action on the part of
Softwall or the Company, subject to any adjustments required by Section
2.02 of this Agreement, each share of common stock of the Company (the
"Company Common Stock") outstanding immediately prior to the Effective
Time, shall automatically be converted into and become a right to
receive 156.62 (the "Conversion Ratio") post-reverse split shares of the
common stock of Softwall (the "Softwall Common Stock", or "Share
Exchange Consideration"). The Conversion Ratio has been calculated by
dividing the Aggregate Share Exchange Consideration (3.5 million shares)
by 22,347.20, the number of issued and outstanding Company Common
Shares. The Conversion Ratio is subject to appropriate adjustment in the
event (a) the 100-to-1 reverse stock split of the Softwall Common Stock
is not affected by the Effective Time, (b) the reverse-stock split ratio
is changed, or (c) the number of shares of outstanding Company Common
Stock is deemed to have changed as set forth in Section 3.02. Softwall
shall pay any amounts that become due and owing to any shareholders of
the Company who perfect their rights as dissenting shareholders under
the California General Corporation Law ("Dissenting Shareholders").
2.02 FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, no certificates or scrip for fractional shares of Softwall
Common Stock shall be issued in the Share Exchange and no Softwall
Common Stock dividend, stock split or interest shall relate to any
fractional security. In lieu of any such fractional shares, each holder
of Company Common Stock who would otherwise have been entitled to
receive a fraction of a share of Softwall Common Stock upon surrender of
Company Common Stock certificates for exchange pursuant to this Article
shall be entitled to receive from Softwall a stock certificate
representing the next highest whole number of shares.
2.03 CONVERSION OF CERTIFICATES. At or after the Closing, the shareholders of
the Company shall deliver the certificate(s) representing all issued and
outstanding shares of Company Common Stock ("Certificates") for
cancellation and conversion in accordance with the terms of this
Agreement. Upon surrender of the Certificates for cancellation to
Softwall, at the Effective Time, Softwall shall instruct its transfer
agent to issue the shares of Softwall Common Stock as provided in this
Article 2 and the Certificates so surrendered shall be canceled.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to Softwall, that to the best
of its knowledge, unless otherwise provided in the Company's financial
statements:
3.01 ORGANIZATION AND AUTHORITY - The Company is a corporation duly organized,
validly existing and in good standing under the laws of California, with
all requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted, is duly
qualified and in good standing in every jurisdiction in which the
property owned, leased or operated by it, or the nature of the business
conducted by it makes such qualification necessary to avoid material
liability or material interference in its business operations, and is not
subject to any agreement, commitment or understanding which restricts or
may restrict the conduct of its business in any jurisdiction or location.
The Company is presently qualified to do business in the State of
California.
3.02 CAPITALIZATION - The authorized capital of the Company is one hundred
thousand (100,000) shares of common stock, no par value, of which
approximately 22,347.20 common shares are outstanding; provided, however,
1333.33 of such shares may be cancelable, in which case the total number
of outstanding shares of Company Common Stock would be 21,013.87. Except
for this Agreement, certain outstanding promissory notes issued by the
Company, which the Company has agreed to convert into preferred stock,
and the statutory rights of the shareholders of the Company to dissent to
the Share Exchange and to receive fair market value for their shares,
there are no outstanding options, contracts, calls, commitments,
agreements or demands of any character relating to the Company's
securities. The outstanding shares of the Company are legally and validly
issued fully paid and non-assessable. The Company does not own more than
5% or more of the outstanding stock of any corporation.
3.03 NO CONFLICT. The execution and delivery of this Agreement does not, and
the consummation of the transaction contemplated hereby will not, subject
to the approval and adoption by the Company's shareholders, violate any
provisions of the certificate/articles of incorporation or bylaws of the
Company, or any provisions thereof, or result in the acceleration of any
material obligation under any mortgage, lien, lease, agreement,
instrument, court order, arbitration award, judgment or decree to which
the Company is a party or by which it is bound, and will not violate any
other restriction of any kind or character to which it is subject.
3.04 FINANCIAL STATEMENTS - Unaudited financial statements ("Financial
Statements") of the company for the years 1999 through December 31, 2001,
have been delivered by the Company to Softwall. Company represents that
Financial Statements are true and correct in all material respects and
present an accurate and complete disclosure of the financial condition of
the Company as of December 31, 2001.
3.05 TITLE - Except for a factoring arrangement secured by the Company's
accounts receivables, and a UCC-1 Financing Statement filed in connection
therewith, and except for liens that have occurred in the ordinary course
of business, the Company has good and marketable title to all of its
material assets, business and properties including without limitation,
all such properties reflected in the balance sheet as of the statement
date except as disposed of in the normal course of business, free and
clear of any mortgage loan, lien pledge, charge, claim or encumbrance
except as shown on said balance sheet as of the date and in the case of
real properties except for rights of way and easements which do not
adversely affect the use of such property.
3.06 CONDITION OF ASSETS - All currently used material property and assets of
the Company, or in which it has an interest, or which it has in its
possession, are in good operating condition and repair subject only to
ordinary wear and tear.
3.07 CHANGES SINCE THE STATEMENT DATE - Since the financial statement date,
there have not been any material negative change in the financial
position or the assets of the company.
3.08 TAXES - Except approximately $315,000 due to the IRS for unpaid taxes,
all material federal, foreign, county, and local income, ad valorem,
excise, profits, franchise, occupation, property, sales, use, gross
receipts and other taxes (including any interest penalties relating
thereto) and assessments which are due and payable have been duly
reported, fully paid and discharged as reported by the Company, and there
are no unpaid taxes which are or could become a lien on the assets or
property of the Company since that date. All tax returns of any kind
required to be filed have been filed and the taxes paid or accrued.
3.09 ACCURACY OF ALL STATEMENTS MADE BY COMPANY - No representation or
warranty by the Company in this Agreement, nor any statement,
certificate, schedule or exhibit hereto furnished or to be furnished by
or on behalf of the Company pursuant to this Agreement, nor any document
or certificate delivered to Softwall pursuant to this Agreement or in
connection with actions contemplated hereby, contains or shall contain
any untrue statement of material fact or omission of a material fact
necessary to make the statement contained therein true in fact and not
misleading.
3.10 NO COVENANT AS TO TAX CONSEQUENCES - It is expressly understood and
agreed that neither the Company nor its officers or agents has made any
warranty or agreement, expressed or implied, as to the tax consequences
or the transactions contemplated by this Agreement or tax consequences of
this Agreement or the tax consequences of any action pursuant to or
growing out of this Agreement.
3.11 ENVIRONMENTAL LAWS. There has not been any release, spill, emission,
leaking, deposit, disposal, discharge, dispersal or leaking into the
environment of any hazardous material at, in, on, under or from any real
property leased, used or managed by the Company (a "Company Facility") or
in connection with its business, that could, to the Company's knowledge,
individually or in the aggregate, have an adverse effect. To the
Company's knowledge, no hazardous materials are being stored or otherwise
are present at, in, on or under any real property leased, used or managed
by the Company or in connection with its business where such activity is
not in compliance with any environmental law, and the Company is in
compliance, in all respects, with all environmental laws applicable to
it. The Company has not (i) received a notice (oral or written) of any
noncompliance of a Company Facility or its past or present operations
with any federal, state or local laws, ordinances, codes, regulations,
rules, policies and orders that are intended to assure the protection of
the environment, or that classify, regulate, call for the remediation of,
require reporting with respect to, or list or define air, water,
groundwater, solid waste, hazardous or toxic substances, materials,
wastes, pollutants or contaminants, or which are intended to assure the
safety of employees, workers or other persons, including the public
(collectively, "Environmental and Safety Laws"), (ii) received notices,
administrative actions or suits are pending or, to the Company's
knowledge, threatened relating to a violation of any Environmental and
Safety Laws or (iii) been notified that the Company is a potentially
responsible party under the federal Comprehensive Environmental Response,
Compensation and Liability Act, or state analog statute, arising out of
events occurring prior to the Closing Date. To the Company's knowledge,
the Company's uses of and activities within any Company Facility have at
all times complied with all Environmental and Safety Laws. The Company
has all the permits and licenses required by Environmental and Safety
Laws to be issued and are in full compliance with the terms and
conditions of those permits.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SOFTWALL
------------------------------------------
Softwall represents and warrants to the Company and the Company's
shareholders, that to the best of its knowledge:
4.01 ORGANIZATION AND AUTHORITY - Softwall is a corporation duly, organized
and in good standing in the State of Utah, with full power and
authority to enter into and perform the transactions contemplated by
this Agreement and with all the requisite corporate power and authority
to own, operate, and lease its properties and to carry on its business
as now being conducted, is duly qualified and in good standing in every
jurisdiction in which the property owned, leased or operated by it, or
the nature of business conducted by it, makes such qualification
necessary to avoid material liability or material interference in its
business operations, and is not subject to any agreement commitment or
understanding which restricts or may restrict the conduct of its
business in any jurisdiction or location. Softwall is presently
qualified to do business in the State of Utah.
4.02 CAPITALIZATION - The authorized capital stock of Softwall consists
solely of 50 million shares of Softwall Common Stock, $0.001 par value
per share, and no shares of preferred stock. As of the date hereof and
before giving effect to the 100-to-1 reverse stock split provided for
in this Agreement, 14,142,000 shares of Softwall Common Stock were
issued and outstanding. The outstanding shares of Softwall are legally
and validly issued fully paid and non-assessable, and were issued in
compliance with applicable federal and state securities laws. Except
for this Agreement, there are no outstanding options, contracts, calls,
commitments, agreements or demands of any character relating to
Softwall's securities. Softwall does not own more than 5% or more of
the outstanding stock of any corporation.
4.03 NO CONFLICT - The execution and delivery of this Agreement does not,
and the consummation of the transaction contemplated hereby will not
violate any provisions of the certificate/articles of incorporation or
bylaws of Softwall, or any provisions thereof, or result in the
acceleration of any material obligation under any mortgage, lien,
lease, agreement, instrument, court order, arbitration award, judgment
or decree to which Softwall is a party or by which it is bound, and
will not violate any other restriction of any kind or character to
which it is subject.
4.04 TITLE - Except for liens that have occurred in the ordinary course of
business, Softwall has good and marketable title to all of its material
assets, business and properties including without limitation, all such
properties reflected in the balance sheet as of the statement date
except as disposed of in the normal course of business, free and clear
of any mortgage loan, lien, pledge, charge, claim or encumbrance except
as shown on said balance sheet.
4.05 REGULATORY COMPLIANCE - Softwall represents that at the time of the
Closing it shall have taken all necessary steps to comply with all
applicable state and federal securities laws and regulations and that,
to the knowledge of Softwall, at the time of closing, there is no
litigation, arbitration, governmental or other proceeding (formal or
informal), claim or investigation pending or threatened, with respect
to Softwall's compliance with any applicable securities laws and
regulations.
4.06 PERFORMANCE OF THIS AGREEMENT - The execution and performance of this
Agreement and the issuance of stock contemplated hereby has been
approved by the board of directors and shareholders in accordance with
all applicable laws.
4.07 FINANCIAL STATEMENTS AND SEC DOCUMENTS - True copies of Softwall's
audited financial statements for the periods ended December 31, 2001
and December 31, 2000, have been reported by Softwall through SEC
filings and are therefore deemed to have been delivered to Company.
Softwall's unaudited interim financial statements for the period ended
March 31, 2002, have been delivered to the Company by filing with the
SEC. Such financial statements are true and correct in all material
aspects and present an accurate and complete disclosure of the
financial condition, earnings, assets and liabilities of Softwall for
the periods covered, in accordance with generally accepted accounting
practices on a consistent basis, and otherwise comply as to form in all
material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto. Since
January 1, 1999, Softwall has filed all reports, schedules, forms,
statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") (all of the foregoing and all
exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein, with
amendments read together with underlying documents, are referred to
herein as the "SEC Documents"). As of their respective dates, the SEC
Documents complied in all material respects with the requirements of
the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Except as disclosed in such financial statements,
Softwall is not a guarantor or indemnitor of any indebtedness of any
other person, firm or corporation. There have been no material negative
changes in the financial position or the assets of the Company as
reflected in the SEC Documents.
4.08 CONDITION OF ASSETS - All currently used property and assets of
Softwall, or in which Softwall has an interest, or which it possesses,
are in good operating condition and repair subject only to ordinary
wear and tear. Softwall does not, nor ever has, leased or owned any
real property.
4.09 ACCURACY OF ALL STATEMENTS MADE BY SOFTWALL - No representation or
warranty made by Softwall in this Agreement, nor any statement,
certificate, schedule or exhibit hereto furnished or to be furnished by
or on behalf of Softwall pursuant to this Agreement, nor any document
or certificate delivered to Company pursuant to this Agreement or in
connection with actions contemplated hereby, contains nor shall contain
any untrue statement of material fact or omission of a material fact
necessary to make the statement contained therein true in fact and not
misleading.
4.10 LEGALITY OF SHARES TO BE ISSUED - The shares of common stock of
Softwall to be delivered pursuant to this Agreement, when so delivered,
will have been duly and validly authorized and issued by Softwall and
will be fully paid and non-assessable.
4.11 NO COVENANT AS TO TAX CONSEQUENCES - It is expressly understood and
agreed that neither Softwall nor its officers or agents has made any
warranty or agreement, expressed or implied, as to the tax consequences
or the transactions contemplated by this Agreement or tax consequences
of the Agreement or the tax consequences of any action pursuant to or
growing out of this Agreement.
4.12 LIABILITIES - Softwall represents that at the time of closing it will
have no assets or liabilities other than that which is reflected in its
audited financial statements. Softwall does not pay nor is obligated to
pay rent, has no employment or consulting agreements, has no
compensation or other related obligations, or any long term or ongoing
business overhead commitments. Softwall does not have, nor has ever
had, any employees or insurance plans or policies.
4.13 ENVIRONMENTAL - There has not been any release, spill, emission,
leaking, deposit, disposal, discharge, dispersal or leaking into the
environment of any hazardous material at, in, on, under or from any
real property leased, used or managed by Softwall (a "Softwall
Facility") or in connection with its business, that could, to
Softwall's knowledge, individually or in the aggregate, have an adverse
effect. To Softwall's knowledge, no hazardous materials are being
stored or otherwise are present at, in, on or under any real property
leased, used or managed by Softwall or in connection with its business
where such activity is not in compliance with any environmental law,
and Softwall is in compliance, in all respects, with all environmental
laws applicable to it. Softwall has not (i) received a notice (oral or
written) of any noncompliance of a Softwall Facility or its past or
present operations with any Environmental and Safety Laws, (ii)
received notices, administrative actions or suits are pending or, to
Softwall's knowledge, threatened relating to a violation of any
Environmental and Safety Laws or (iii) been notified that Softwall is a
potentially responsible party under the federal Comprehensive
Environmental Response, Compensation and Liability Act, or state analog
statute, arising out of events occurring prior to the Closing Date. To
Softwall's knowledge, Softwall's uses of and activities within a
Softwall Facility have at all times complied with all Environmental and
Safety Laws. Softwall has all the permits and licenses required by
Environmental and Safety Laws to be issued and are in full compliance
with the terms and conditions of those permits.
4.14 INTELLECTUAL PROPERTY - Except for two United States patents on mining
processes that Softwall owns, Softwall does not license or use, any
inventions, patents, patent rights, computer software, trademarks,
trademark rights, service marks, service xxxx rights, trade names,
trade name rights or copyrights (the "Intellectual Property"). The
Company has not received any notice of infringement upon or conflict
with the asserted rights of others. All Intellectual Property owned by
Softwall is owned free and clear of all liens, adverse claims,
encumbrances, or restrictions, except as otherwise disclosed herein. No
claims with respect to the Intellectual Property have been asserted
against Softwall against any other party or are or are likely to be
threatened by any person, nor do any grounds exist for any claims now
or in the future (i) to the effect that any product or service of
Softwall or any business of Softwall as previously or currently
conducted infringes on or misappropriates any intellectual property
rights in which a third party has any rights, or (ii) challenging the
ownership, validity or effectiveness of any of the Intellectual
Property, except as otherwise disclosed herein. The Company has not
entered into any agreement to indemnify any other person against any
charge of infringement relating to any Intellectual Property.
ARTICLE 5
COVENANTS
---------
5.01 ACCESS TO INFORMATION - Each party and their authorized representatives
shall have full access during normal business hours to all properties,
books, records, contracts, and documents of the other parties, and each
party shall furnish or cause to be furnished to the other party and its
authorized representative all information with respect to its affairs
and business as such other party may reasonably request.
5.02 ACTIONS PRIOR TO CLOSING - From and after the date of this Agreement
and until the Closing Date neither Softwall nor the Company shall
materially alter its business.
5.03 ISSUANCE OF PREFERRED STOCK. Immediately upon the Closing, Softwall
shall call a stockholders meeting and seek to approve an amendment to
Softwall's Articles of Incorporation (the "Amendment") to authorize the
issuance of one class of preferred stock, which shall be issued to
current holders of certain promissory notes of the Company, who have
agreed to convert their notes into preferred stock. Immediately after
the Consulting Payment has been made, the Articles shall be amended and
the preferred shares shall be immediately issued to the note holders in
exchange for the cancellation of their promissory notes.
5.04 SPIN-OFF. Immediately upon the Closing, Softwall shall call a
stockholder's meeting and seek to approve (a) the formation of a wholly
owned subsidiary into which the patents and other assets and
liabilities, related to Softwall's coal mining inventions and
processes, shall be transferred (the "Subsidiary"), and (b) the
subsequent spin-off of the shares of the Subsidiary (the "Spin-Off") on
a pro rata basis to the holders of Softwall's common stock that existed
immediately prior to the Closing of the Share Exchange. The Spin-Off
shall be affected immediately after the Consulting Payment has been
made.
ARTICLE 6
CONDITIONS PRECEDENT TO SOFTWALL'S OBLIGATIONS
----------------------------------------------
The obligation of Softwall to consummate the Share Exchange shall be
subject to the satisfaction by the Company, or waiver, of the following
conditions:
6.01 TRUTH OF REPRESENTATIONS AND WARRANTIES - The representations and
warranties made by the Company in this Agreement or given on its behalf
hereunder shall be substantially accurate in all material respects on
and as of the Closing Date with the same effect as though such
representation and warranties had been made or given on and as of the
Closing Date.
6.02 ABSENCE OF SUIT - No action, suit or proceedings before any court or
any governmental or regulatory authority shall have been commenced or
threatened and, no investigation by any governmental or regulatory
authority shall have been commenced, against the Company or any of the
affiliates, associates, officers, or directors or any of them, seeking
to restrain, prevent, or change the transactions contemplated herein or
seeking damages in connection with any of such transactions
6.03 RECEIPT OF APPROVALS ETC. - All approvals, consents, and/or waivers
that are necessary to effect the transactions contemplated hereby shall
have been received.
6.04 CLOSING DELIVERIES - In addition to any other instruments and documents
required to be delivered by the Company pursuant to this Agreement, the
Company shall have delivered to Softwall on or before the Closing Date
such certificates, instruments and documentation as are reasonably
required in the opinion of Softwall to complete the transactions
contemplated.
6.05 NO MATERIAL ADVERSE CHANGE - As of the Closing Date no material change
has occurred which impairs the ability of the Company to conduct its
business or the earning power thereof on the same basis as in the past.
6.06 ACCURACY OF FINANCIAL STATEMENT - Softwall and its representatives
shall be satisfied as to the accuracy of all balance sheets, statements
of income and other financial statements of the Company.
6.07 PROCEEDINGS AND INSTRUMENTS SATISFACTORY; CERTIFICATES - All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred, and
Softwall shall have received, all appropriate documents incident
thereto, as Softwall may request as to demonstrate compliance with the
conditions set forth in Article 6.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
--------------------------------------------------
The obligation of the Company to consummate the Share Exchange shall be
subject to the satisfaction by Softwall, or waiver, of the following conditions:
7.01 CONSULTING AGREEMENT WITH XXXXXXX XXXXXXXX - Softwall and Xxxxxxx
Xxxxxxxx shall have executed.
7.02 TRUTH OF REPRESENTATIONS AND WARRANTIES - The representations and
warranties made by Softwall in this Agreement or given on its behalf
hereunder shall be substantially accurate in all material respects on
and as of the Closing Date with the same effect as though such
representation and warranties had been made or given on and as of the
Closing Date.
7.03 REVERSE STOCK SPLIT. Softwall shall have properly affected a 100-for-1
reverse split of the Softwall Common Stock.
7.04 COMPLIANCE WITH COVENANTS - Softwall shall have performed and complied
with its obligations under this Agreement.
7.05 TRUTH OF REPRESENTATIONS AND WARRANTIES - The representations and
warranties made by Softwall in this Agreement or given on its behalf
hereunder shall be substantially accurate in all material respects on
and as of the Closing Date with the same effect as though such
representation and warranties had been made or given on and as of the
Closing Date.
7.06 REVERSE STOCK SPLIT. Softwall shall have properly affected a 100-for-1
reverse split of the Softwall Common Stock.
7.07 COMPLIANCE WITH COVENANTS - Softwall shall have performed and complied
with its obligations under this Agreement which are to be performed or
complied with by it prior to or on the Closing Date.
7.08 APPROVAL OF SHAREHOLDERS - The Company shall have obtained the
requisite approval of its shareholders and board of directors, to enter
into and consummate the Share Exchange and the other transactions
contemplated hereby, and shall have provided any shareholders who have
not consented in writing to approve the Share Exchange, with 10 days
written notice of the approval of the Share Exchange.
7.09 ABSENCE OF SUIT - No action, suit or proceedings before any court or
any governmental or regulatory authority shall have been commenced or
threatened and no, investigation by any governmental or regulatory
authority shall have been commenced against Softwall or any affiliates,
associates, officers or directors of Softwall seeking to restrain,
prevent or change the transactions contemplated herein, or seeking
damages in connection with any of such transactions.
7.10 RECEIPT OF APPROVALS ETC. - All approvals, consent and/or waivers that
are necessary to effect the transactions contemplated hereby shall have
been received.
7.11 CLOSING DELIVERIES - In addition to any other instruments and documents
required to be delivered by Softwall pursuant to this Agreement,
Softwall shall have delivered to the Company on or before the Closing
Date such certificates, instruments and documentation as are reasonably
required in the opinion of the Company's counsel to complete the
transactions contemplated.
7.12 NO MATERIAL ADVERSE CHANGE - As of the Closing Date no material change
has occurred which impairs the ability of Softwall to conduct its
business or the earning power thereof on the same basis as in the past.
7.13 ACCURACY OF FINANCIAL STATEMENT - Company and its representatives shall
be satisfied as to the accuracy of all balance sheets, statements of
income and other financial statements of Softwall.
7.14 PROCEEDINGS AND INSTRUMENTS SATISFACTORY; CERTIFICATES - All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred, and
the Company shall have received all appropriate documents incident
thereto, as the Company may request as to demonstrate compliance with
the conditions set forth in Article 7.
ARTICLE 8
INDEMNIFICATION
---------------
The Company shall indemnify Softwall for any loss, cost, expense or other damage
suffered by Softwall resulting from, arising out of, or incurred with respect to
the falsity or the breach of any representations, warranty or covenant made by
the Company herein. Softwall shall indemnify and hold the Company and its
shareholders harmless against any loss, cost, expense, or other damage
(including, without limitation, attorneys fees and expenses) resulting from,
arising out of, or incurred with respect to, or alleged to result from, arise
out of, or have been incurred with respect to, the falsity or the breach of any
representation, covenant, warranty, or agreement made by Softwall herein.
ARTICLE 9
SECURITY ACT PROVISIONS
-----------------------
9.01 RESTRICTIONS ON DISPOSITION OF SHARES - The Company acknowledges that
the Softwall Shares to be issued in the Share Exchange shall contain
the appropriate legend which prohibits the disposition of such shares:
o Pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or
o In any other transaction which, in the opinion of counsel
acceptable to Softwall is exempt from registration under the
Securities Act of 1933, as amended, or the rules and
regulations of the Securities Exchange Commission thereunder.
9.02 NOTICE OF LIMITATION UPON DISPOSITION - The Company acknowledges that
the shares distributed pursuant to this Agreement will not have been
registered pursuant to the Securities Act of 1933, as amended; and,
therefore, under current interpretations and applicable rules, the
Company's shareholders will probably have to retain such shares for a
period of at least one year and at the expiration of such holding
period, sales may be confined to brokerage transactions of limited
amounts requiring certain notification filings with the Securities and
Exchange Commission and such disposition may only be available if
Softwall is current in its filings with the Securities and Exchange
Commission under the Securities Act and other public disclosure
requirements, and the other limitations imposed thereby on the
disposition of the shares of Softwall. Additionally, "affiliates"
owning shares will be subject to additional restrictions limiting
sales.
ARTICLE 10
PRE-CLOSING PERFORMANCE
-----------------------
[RESERVED]
ARTICLE 11
CLOSING
-------
11.01 DOCUMENTS TO BE DELIVERED BY THE COMPANY - At the Closing, unless
waived by Softwall, the Company shall deliver to Softwall the following
documents:
o A certificate signed by the President of the Company that the
representations and warranties are true and correct on and as
of the Closing Date with the same effect as though such
representations and warranties had been made on or given on
and as of the Closing Date and that the Company has performed
and complied with all of its obligations under this Agreement
which are to be performed or complied with by or prior to or
on the Closing Date.
o Such documents of transfer, certificate of authority and other
documents as Softwall may reasonably request.
o A certified copy of the duly adopted resolutions of the board
of directors and shareholders of the Company authorizing or
ratifying the execution and performance of this Agreement and
authorizing or ratifying the acts of its officers and
employees in carrying out the terms and provisions thereof.
11.02 DOCUMENTS TO BE DELIVERED BY SOFTWALL - At the Closing, unless waived
by the Company, Softwall shall deliver to the Company the following
documents:
o A certified copy of the duly adopted resolutions of the board
of directors and the shareholders of Softwall authorizing the
execution and performance of this Agreement and authorizing or
ratifying the acts of its officers and employees in carrying
out the terms and provisions thereof;
o A certificate signed by the President of Softwall that the
representations and warranties are true and correct on and as
of the Closing Date with the same effect as though such
representations and warranties had been made on or given on
and as of the Closing Date and that Softwall has performed and
complied with all of its obligations under this Agreement
which are to be performed or complied with by or prior to or
on the Closing Date.
o Such documents of transfer, certificate of authority and other
documents as Softwall may reasonably request.
ARTICLE 12
TERMINATION AND ABANDONMENT
---------------------------
12.01 TERMINATION. This Agreement may be terminated and the transaction
provided for by this Agreement may be abandoned without liability on
the part of any part to any other, at any time before the Closing Date
as follows:
(a) By mutual consent of Softwall and the Company;
(b) By Softwall if the Company is unable to satisfy any of the
conditions provided for in Article 6 of this Agreement and
Softwall has not waived such condition;
(c) By the Company if Softwall is unable to satisfy any of the
conditions provided for in Article 7 of this Agreement and the
Company has not waived such conditions.
12.02 EFFECT OF TERMINATION. In the event of termination and abandonment by
any party as above provided in this Article, written notice shall
forthwith be given to the other party, and each party shall pay its own
expenses incident to the preparation for the consummation of this
Agreement and the transactions contemplated thereunder
ARTICLE 13
MISCELLANEOUS
-------------
13.01 NOTICES - All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given, if delivered by hand
or mailed, certified or registered mail with postage prepaid:
o If to the Company, to Xxxxxxx X. Xxxxxx at 0000 X.
Xxxxxxxxxxxx, Xxxxx X, Xxxxxxxxx, XX 00000, or to such other
person and place as the Company shall furnish to Softwall in
writing; or
o If to Softwall, to Xxxxxxx X. Xxxxxxxx at 00000 Xxxxxxxxxx
Xxxxx Xxxxx, Xxxx 00000 or such other person as Softwall shall
furnish to Company in writing.
13.02 ANNOUNCEMENTS - Announcements concerning the transactions provided for
in the Agreement by either the Company or Softwall shall be subject to
the approval of the other in all essential respects.
13.03 ATTORNEY'S FEES - In the event that any action, suit or other
proceeding is instituted concerning or arising out of this Agreement,
the parties agree that the prevailing party shall recover from the
non-prevailing party all of such prevailing party's costs and
reasonable attorneys' fees incurred in each and every such action, suit
or other proceeding, including any and all appeals or petitions there
from.
13.04 ASSIGNMENT - This Agreement may not be assigned in whole or in part by
the parties hereto without prior written consent of the other party or
parties, which consent shall not be unreasonably withheld.
13.05 SUCCESSORS AND ASSIGNS - This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their successors and
assigns.
13.06 HOLIDAYS - If any obligation or act required to be performed hereunder
shall fall due on a Saturday, Sunday or other day which is a legal
holiday established in the State of Utah, such obligation or act may be
performed on the next succeeding business day with the same effect as
if it had been performed upon the day appointed.
13.07 COMPUTATION OF TIME - The time in which any obligation or act provided
by this Agreement is to be performed is computed by excluding the first
day and including the last, unless the last day is a holiday, in which
event such day shall also be excluded.
13.08 GOVERNING LAW AND VENUE. This Agreement shall be governed by and
interpreted by the laws of the State of Utah. Any action to enforce the
provisions of this Agreement shall be brought in a court of competent
jurisdiction within the County of Salt Lake, State of Utah and in no
other place. The parties hereby submit themselves to the jurisdiction
of any such court and agree that service of process on them in any such
action, suit or proceeding may be affected by the means by which
notices are to be given to it under this Agreement.
13.09 PARTIAL INVALIDITY - If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to persons or
circumstances other than those as to which it is held to be invalid or
unenforceable shall not be affected thereby and each term, covenant,
condition, or provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
13.10 NO OTHER AGREEMENTS - This Agreement constitutes the entire Agreement
between the parties and there are and will be no oral representations
which will be binding upon the parties hereto.
13.11 RIGHTS ARE CUMULATIVE - The rights and remedies granted hereunder shall
be in addition to and cumulative of any other rights or remedies
provided under the laws of the State of Utah.
13.12 WAIVER - No delay or failure in the exercise of any power or right
shall operate as a waiver thereof or as acquiescence in default. No
single or partial exercise of any power or right hereunder shall
preclude any other or further exercise thereof or the exercise of any
other power or right.
13.13 SURVIVAL OF COVENANTS - All covenants, representations and warranties
made herein to any parties or in any statement or document delivered to
any party hereto, shall survive the making of this Agreement and shall
remain in full force and effect until the obligations of such party
hereunder have been fully satisfied.
13.14 FURTHER ACTION - The parties hereto agree to execute and deliver such
additional documents and to take such other and further actions
contemplated herein.
13.15 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 or parties against whom
enforcement of the change, waiver, termination, or discharge is sought.
13.16 HEADINGS - The descriptive headings of the various sections or parts of
this Agreement are for convenience only and shall not affect the
meaning or of any of the provisions hereof.
13.17 COUNTERPARTS - This agreement may be executed in two or more partially
or fully executed counterparts each of which shall be deemed and
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
(Signature page follows)
(Signature to Agreement of Reorganization)
IN WITNESS WHEREOF, the parties hereto executed the foregoing Agreement
as of the day and year first above written
"SOFTWALL"
SOFTWALL EQUIPMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxx - President & Director
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx - Secretary & Director
"COMPANY"
US TECHNICAL CONSULTANTS CORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx - President
