STOCK PURCHASE AND RECAPITALIZATION AGREEMENT
Exhibit
1.1
This
Agreement this 17th day of February 2006 by and among Vegas
Wireless Acquisition, Inc.,
a
company incorporated pursuant to the laws of Ontario, Canada and wholly owned
subsidiary of Parent ("Buyer");
BICO,
Inc.,
a
Pennsylvania corporation ("Parent");
and
Vegas
Wireless Entertainment, Inc. a
company
incorporated pursuant to the laws of Ontario, Canada (the "Company").
RECITALS
A. The
respective Boards of Directors of each of the Company; Buyer and Parent, and
a
majority of the issued and outstanding stock of the Company and Buyer, have
approved and declared advisable the merger of the Company with and into Buyer
(the "Merger")
and
approved the Merger upon the terms and subject to the conditions set forth
in
this Agreement, whereby each issued and outstanding share of the common stock
of
the Company (a "Company
Share"
or,
collectively, the "Company
Shares"),
will
be converted into 3.9279261 shares of common stock, $0.0001 par value, of Parent
("Parent
Common Stock")
which,
after giving effect to the Merger and the Reverse Stock Split, shall equal,
in
the aggregate, 74% of the total issued and outstanding common stock of Parent,
and certain other consideration as provided herein.
B. The
respective Boards of Directors of the Company, Buyer and Parent have determined
that the Merger is in furtherance of and consistent with their respective
long-term business strategies and is fair to and in the best interests of their
respective stockholders.
C. It
is
intended that, for federal income tax purposes, the Merger shall qualify as
a
reorganization under the provisions of Section 368(a) of the Internal Revenue
Code of 1986, as amended, and the rules and regulations promulgated thereunder
(the "Code");
D. For
financial accounting purposes, it is intended that the Merger will be accounted
for as a "purchase";
NOW,
THEREFORE,
in
consideration of the premises, and of the representations, warranties, covenants
and agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
28
The
Merger; Closing; Effect of Merger
SECTION
1.1 The
Merger.
Upon
the
terms and subject to the conditions set forth in this Agreement and in
accordance with the laws of the province of Ontario, Canada ("ONTLAW")
at the
Effective Time, the Company shall be merged with and into Buyer and the separate
corporate existence of the Company shall thereupon cease. The Buyer shall be
the
surviving corporation in the Merger (sometimes hereinafter referred to as the
"Surviving
Corporation"),
and
the separate corporate existence of Buyer with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the merger,
except as set forth herein. The Merger shall have the effects specified in
the
ONTLAW.
SECTION
1.2 Closing.
Subject
to the terms and conditions of this Agreement, the closing of the Merger and
the
consummation of the other transactions contemplated hereby (the "Closing")
shall
take place at the offices of Xxxxx & Xxxxxxx LLP 000 Xxxxxxxx,
00xx
Xxxxx,
Xxx Xxxx 00000 on March_, 2006 at 10:00 a.m. local time (or at such other date,
time and place as the parties hereto may agree).
SECTION
1.3 Effective
Time.
On
the
date of Closing, the Company and Buyer will cause a Certificate of Merger (the
"Ontario
Certificate of Merger")
to be
executed, acknowledged and filed with the Ministry of Consumer and Business
Services of the Province of Ontario, Canada. The Merger shall become effective
at the time when the Ontario Certificate of Merger has been filed with the
Ministry of Consumer and Business Services of the Province of Ontario, Canada,
or, as otherwise agreed by the Company and Buyer (the "Effective
Time").
SECTION
1.4 Certificate
of Incorporation.
The
certificate of incorporation of Buyer as in effect immediately prior to the
Effective Time shall be the certificate of incorporation of the Surviving
Corporation (the "Charter"),
until
duly amended as provided therein or by applicable law.
SECTION
1.5 By-Laws.
The
by-laws of Buyer in effect immediately prior to the Effective Time shall be
the
by-laws of the Surviving Corporation (the "By-Laws"),
until
thereafter amended as provided therein or by applicable law.
SECTION
1.6 Directors.
The
director of the Company shall, from and after the Effective Time, be Xxxxx
Xxxxx
until his successor have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the Charter
and
the By-Laws. As of the Effective Time, the authorized number of directors
comprising the Board of Directors of Parent shall consist of not less than
3 and
not more than 5 individuals. The following individuals shall be elected to
the
Board Directors of Parent at the Effective Time: (i) Xxxx Xxxxxx (Chairman
of
the Board); (ii) Xxxxx Xxxxx; and (iii) Martynas Bieliauskas.
28
SECTION
1.7 Officers.
The
officer of the Company shall, from and after the Effective Time, be Xxxxx Xxxxx
until his successor have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the Charter
and
the By-Laws. . As of the Effective Time, the officers of Parent shall be
appointed as follows: (i)
Xxxxx
Xxxxx (President), Xxxx Xxxxxx (CEO, Secretary and Treasurer); and (ii) Martynas
Bieliauskas (Vice President Technology).
SECTION
1.8 Effect
on Capital Stock.
At the
Effective Time, as a result of the Merger and without any action on the part
of
the holder of any capital stock of Buyer:
(i) Merger
Consideration.
Each
Company Share issued and outstanding immediately prior to the Effective Time
shall be converted into, and become exchangeable for 3.9279261 validly issued,
fully paid and nonassessable shares of Parent Common Stock (the "Parent
Merger Shares"
and the
"Merger
Purchase Price");
(ii) At
the
Effective Time, all Company Shares shall be canceled and the Company shall
cease
to exist, and each certificate (a "Certificate")
formerly representing any Company Shares shall thereafter represent only the
right to receive the shares of Parent Common Stock into which such Company
Shares have been converted.
SECTION
1.9 Exchange
of Certificates for Shares.
(a) Exchange.
At
Closing, Parent shall deliver or cause to be delivered to each respective owner
of Company Shares and in each of their respective names certificates
representing Parent Common Stock into which the Company Shares that such
shareholders owns are to be converted as set forth on Schedule
1
attached
hereto.
(b) Fractional
Shares.
No
certificates or scrip representing fractional shares of Parent Common Stock
shall be issued upon the surrender for exchange of Certificates pursuant to
this
Article I; no dividend or other distribution by Parent and no stock split,
combination or reclassification shall relate to any such fractional share;
and
no such fractional share shall entitle the record or beneficial owner thereof
to
vote or to any other rights of a stockholder of Parent. In lieu of any such
factional share, each holder of Company Shares who would otherwise have been
entitled thereto upon the surrender of Certificate(s) for exchange pursuant
to
this Article I will be paid an additional share of Parent Common Stock.
28
(c) Adjustments
of Conversion Number.
In the
event that Parent changes the number of shares of Parent Common Stock, issued
and outstanding prior to the Effective Time as a result of a reclassification,
stock split (including a reverse split), dividend or distribution,
recapitalization, merger (other than the Merger, Stock Purchase or the
cancellation of options previously granted by the Company), subdivision, or
other similar transaction with a dilutive effect, or if a record date with
respect to any of the foregoing shall occur prior to the Effective Time, the
conversion number shall be equitably adjusted.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents, warrants and covenants to Buyer and Parent as follows and
acknowledges that Buyer and Parent are relying upon such representations and
warranties in connection with the Contemplated Transactions (as hereinafter
defined):
SECTION
2.1 Capitalization.
The
outstanding and issued capital stock of the Company consists 10,000,000 shares
of common stock. Schedule 1
sets
forth the name of each record and beneficial shareholder of the Company (each
a
"Shareholder"
and
collectively the "Shareholders")
and
the number of Company Shares held by each such person. The Company does not
and,
at the Closing, the Company
will not, have outstanding any capital stock or other securities or any rights,
warrants or options to acquire securities of the Company or any convertible
or
exchangeable securities and, other than Buyer pursuant to this Agreement, no
person has or, at Closing will have, any right to purchase or otherwise acquire
any securities of the Company. There are, and at Closing there will be, no
outstanding obligations of the Company to repurchase, redeem or otherwise
acquire any securities of the Company. All of the Company Shares are, and at
Closing will be, duly authorized, duly and validly issued, fully paid and
non-assessable, and none were issued in violation of any preemptive rights,
rights of first refusal or any other contractual or legal restrictions of any
kind except as set forth on Schedule
2.1.
SECTION
2.2 Title
to the Shares.
To the
best of Company’s knowledge and information each Shareholder is the beneficial
owner and holds good and valid title to its Company Shares free and clear of
any
Lien. To the best of Company’s knowledge and information, upon consummation of
the Contemplated Transactions and the satisfaction of the conditions to Closing
set forth herein, Buyer will own all of the issued and outstanding shares of
capital stock of the Company, free and clear of any Lien. At the Closing, each
Shareholder will deliver the Company Shares to Buyer free and clear of any
Lien,
other than restrictions imposed by the Securities Act of 1933, as amended,
and
applicable securities Laws
including the laws of the province of Ontario, Canada.
28
SECTION
2.3 Authority
Relative to this Agreement.
Following approval of the Shareholders of the Company, the Company will have
full power, capacity and authority to execute and deliver each Transaction
Document to which it is or, at Closing, will be, a party and to consummate
the
transactions contemplated hereby and thereby (the "Contemplated
Transactions").
The
execution, delivery and performance by the Company of each Transaction Document
and the consummation of the Contemplated Transactions to which the Company
is,
or at Closing, will be, a party will have been duly and validly authorized
by
the Company and no other acts by or on behalf of the Company will be necessary
or required to authorize the execution, delivery and performance by the Company
of each Transaction Document and the consummation of the Contemplated
Transactions to which it is or, at Closing, will be, a party. This Agreement
and
the other Transaction Documents to which the Company is a party have been duly
and validly executed and delivered by the Company and (assuming the valid
execution and delivery thereof by the other parties thereto) will constitute
the
legal, valid and binding agreements of the Company enforceable against the
Company in accordance with their respective terms, except as such obligations
and their enforceability may be limited by applicable bankruptcy and other
similar Laws affecting the enforcement of creditors' rights generally and except
that the availability of equitable remedies is subject to the discretion of
the
court before which any proceeding therefor may be brought (whether at law or
in
equity).
SECTION
2.4 No
Conflicts; Consents.
The
execution, delivery and performance by the Company of each Transaction Document
to which it is a party and the consummation of the Contemplated Transactions
to
which the Company is a party, upon approval of the Shareholders will not:
(i) violate any provision of the certificate of incorporation or memorandum
of association of the Company; (ii) require the Company to obtain any
consent, approval or action of or waiver from, or make any filing with, or
give
any notice to, any Governmental Body or any other person, except as set forth
on
Schedule 2.4
(the
"Company
Required Consents");
(iii)
violate, conflict with or result in a breach or default under (with or without
the giving of notice or the passage of time or both), or permit the suspension
or termination of, any material Contract (including any Real Property Lease)
to
which the Company is a party or by which it or any of its assets is bound or
subject, or to the best of Company’s knowledge and information result in the
creation of any Lien upon any of the Company Shares or upon any of the Assets
of
the Company; (iv) violate any Order, any Law, of any Governmental Body
against, or binding upon, the Company or upon any of their respective assets
or
the Business; or (v) violate or result in the revocation or suspension of
any Permit.
SECTION
2.5 Corporate
Existence and Power.
The
Company is a company duly organized, validly existing and in good standing
under
the laws of the province of Ontario, Canada, and has all requisite powers,
authority and all Permits required to own and/or operate its Assets and to
carry
on the Business as conducted as of the date hereof. The Company has no
Subsidiaries and does not directly or indirectly own any equity or other
interest or investment in any other person.
28
SECTION
2.6 Charter
Documents and Corporate Records.
The
Company has heretofore delivered to Buyer true and complete copies of the
certificate of incorporation and memorandum of association and minute books,
or
comparable instruments, of the Company as in effect on the date hereof. The
stock transfer books of the Company have been made available to Buyer for its
inspection and are true and complete in all respects in accordance with their
tenor.
SECTION
2.7 Financial
Statements.
(a) Schedule 2.7A
sets
forth true, complete and correct copies of: (i) the Company's reviewed
financial statements as of and for the year ended December 31, 2005 (the
"Annual
Statement");
and
(ii) all management letters, management representation letters and attorney
Company Required Consents response letters issued in connection with the Annual
Statement. The Annual Statement present fairly and accurately in all material
respects the financial
position of the Company as of its date, and the earnings, changes in
stockholders' equity and cash flows thereof for the periods then ended in
accordance with GAAP, consistently applied.
Each balance sheet contained therein or delivered pursuant hereto fully sets
forth all consolidated Assets and Liabilities of the Company existing as of
its
date which, under GAAP, should be set forth therein, and each statement of
earnings contained therein or delivered pursuant hereto sets forth the items
of
income and expense of the Company which should be set forth therein in
accordance with GAAP.
(b) All
financial, business and accounting books, ledgers, accounts and official and
other records relating to the Company have been properly and accurately kept
and
completed, and the Company has no knowledge, notice belief or information there
are any material inaccuracies or discrepancies contained or reflected therein.
SECTION
2.8 Liabilities.
The
Company has not incurred any Liabilities since December 31, 2005 (the
"Latest
Balance Sheet Date")
except
(i) current Liabilities for trade or business obligations incurred in
connection with the purchase of goods or services in the ordinary course of
the
Business and consistent with past practice, and (ii) Liabilities reflected
on any balance sheet referred to in Section 2.7(a).
SECTION
2.9 Company
Receivables.
Except
to the extent of the amount of the allowance for doubtful accounts reflected
in
the Annual Statements, all the Receivables of the Company reflected therein,
and
all Receivables that have arisen since the Latest Balance Sheet Date (except
Receivables that have been collected since such date), are valid and enforceable
Claims subject to no known defenses, offsets, returns, allowances or credits
of
any kind, and constitute bona fide Receivables collectible in the ordinary
course of the Business except as enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or
similar laws or principles of equity affecting the enforcement of creditors
rights generally.
28
SECTION
2.10 Absence
of Certain Changes.
(a) Since
January 1, 2006 the Company has conducted the Business in the ordinary course
consistent with past practice, except as disclosed on Schedule 2.10 hereof,
and
there has not been:
(i) Any
material adverse change in the Condition of the Business;
(ii) Any
damage, destruction or other casualty loss (whether or not covered by
insurance), condemnation or other taking affecting the Business or the Assets
of
the Company;
(iii) Any
change in any method of accounting or accounting practice by the
Company;
(iv) Except
for normal increases granted in the ordinary course of business, any increase
in
the compensation, commission, bonus or other direct or indirect remuneration
paid, payable or to become payable to any officer, stockholder, director,
consultant, agent or employee of the Company, or any alteration in the benefits
payable or provided to any thereof;
(v) Any
material adverse change in the relationship of the Company with its employees,
customers, suppliers or vendors;
(vi) Except
for any changes made in the ordinary course of Business, any material change
in
any of the Company's business policies, including advertising, marketing,
selling, pricing, purchasing, personnel, returns or budget
policies;
(vii) Any
agreement or arrangement whether written or oral to do any of the
foregoing.
(viii) The
Company has no Liability that is past due except as shown on the Annual
Statements.
SECTION
2.11 Leased
Real Property.
(a) The
Company has no fee interest, purchase options or rights of first refusal in
any
real property and the Company has no leasehold or other interest in any real
property, except as set forth on Schedule 2.11
(the
"Leased
Real Property"),
and
all leases including all amendments, modifications, extensions, renewals and/or
supplements thereto (collectively, "Real
Property Leases")
are
described on Schedule 2.11.
28
SECTION
2.12 Personal
Property; Assets.
The
Company has good and valid title to (or valid leasehold interest in) all of
its
personal property and Assets, free and clear of all Liens, except the Permitted
Liens and as indicated on Schedule 2.12.
The
machinery, equipment, computer software and other tangible personal property
constituting part of the Assets and all other Assets (whether owned or leased)
are in good condition and repair (subject to normal wear and tear) and are
reasonably sufficient and adequate in quantity and quality for the operation
of
the Business as previously and presently conducted. Schedule 2.12
contains
a list and description of all tangible personal property owned or leased by
the
Company with a book value (before depreciation) of $5,000 or more. The Assets
constitute all of the assets, which are necessary to operate the Business of
the
Company as currently conducted.
SECTION
2.13 Contracts.
(a) Schedule 2.13
sets
forth an accurate and complete list of all Contracts to which the Company is
a
party or by which it or its Assets are bound or subject that: (i) cannot be
canceled upon 30 days' notice without the payment or penalty of less than One
Thousand Dollars ($1,000); or (ii) involve aggregate annual future payments
by
or to any person of more than Five Thousand Dollars ($5,000). True
and
complete copies of all written Contracts (including all amendments thereto
and
waivers in respect thereof) and summaries of the material provisions of all
oral
Contracts so listed have been made available to Buyer.
(b) All
Contracts to which the Company is a party are valid, subsisting, in full force
and effect and binding upon the Company and the other parties thereto, in
accordance with their terms, except that no representation or warranty is given
as to the enforceability of any oral Contracts. To the best of the Company’s
knowledge and belief, except as set forth on Schedule
2.13,
the
Company is not in default (or alleged default) under any such
Contract.
SECTION
2.14 Patents
and Intellectual Property Rights.
(a) Schedule
2.14
sets
forth a list of each patent, trademark, trade name, service xxxx, brand xxxx,
brand name, and registered copyright as well as all registrations thereof and
pending applications therefor, and each license or other contract relating
thereto (collectively, the "Intellectual
Property")
owned
or used in connection with the Business by the Company and indicates, with
respect to each item of Company's Intellectual Property that is licensed by
the
Company, the name of the licensor thereof and, with respect to oral Contracts,
the terms of such license relating thereto. To the Company's knowledge, the
use
of the foregoing by the Company does not conflict with, infringe upon, violate
or interfere with or constitute an appropriation of any right, title, interest
or goodwill, including, without limitation, any intellectual property right,
patent, trademark, trade name, service xxxx, brand name, computer program,
database, industrial design, trade secret, copyright or any pending application
thereto of any other person and there have been no claims made and the Company
has not received any notice or otherwise know that any of the foregoing is
invalid or conflicts with the asserted rights of other Persons or have not
been
used or enforced or have been failed to be used or enforced in a manner that
would result in the abandonment, cancellation or unenforceability of the
Intellectual Property, except as set forth on Schedule
2.14A.
28
(b) The
Company owns or has rights to use all Intellectual Property, know-how, formulae
and other proprietary and trade rights necessary to conduct the Business as
it
is now conducted. The Company has not forfeited or otherwise relinquished any
such Intellectual Property, know-how, formulae or other proprietary right used
in the conduct of the Business as now conducted.
(c) To
the
extent used in the conduct of the Business by the Company, each of the licenses
or other contracts relating to the Company's Intellectual Property
(collectively, the "Intellectual
Property Licenses")
is in
full force and effect and is valid and enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally, and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and there is no
notice or claim of default under any Intellectual Property License either by
the
Company or, to the Company's knowledge, by any other party thereto, and to
the
Company’s knowledge, no event has occurred that with the lapse of time or the
giving of notice or both would constitute a default by the Company
thereunder.
SECTION
2.15 Claims
and Proceedings.
There
are no outstanding Orders of any Governmental Body against or involving the
Company, its Assets, the Business, or the Company Shares. There are no actions,
suits, claims or counterclaims, examinations, Company Required Consents or
legal, administrative, governmental or arbitral proceedings or investigations
(collectively, "Claims")
(whether or not the defense thereof or Liabilities in respect thereof are
covered by insurance), pending or, to the best of the Company's knowledge,
threatened on the date hereof, against or involving the Company, its Assets,
the
Business or the Company Shares.
SECTION
2.16 Taxes.
(a) Except
as set forth in Schedule 2.16:
(i) The
Company has timely filed or, if not yet due but due before Closing, will timely
file all Tax Returns required to be filed by it for all taxable periods ending
on or before the date of Closing and all such Tax Returns are or, if not yet
filed, will be, upon filing, true, correct and complete in all material
respects;
(ii) the
Company has paid, or if payment is not yet due but due before Closing, will
promptly pay when due to each appropriate Tax Authority, all Taxes of the
Company shown as due on the Tax Returns required to be filed by it for all
taxable periods ending on or before the date of Closing;
28
(iii) the
accruals for Taxes currently payable as well as for deferred Taxes shown on
the
financial statements of the Company as of the date of the Annual Statement
or
the date of any financial statements delivered hereunder: (A) adequately
provide for all contingent Tax Liabilities of the Company as of the date
thereof; and (B) accurately reflect, as of the date thereof, all unpaid
Taxes of the Company whether or not disputed, in each case as required to be
reflected thereon in order for such statements to be in accordance with
GAAP;
(iv) no
extension of time has been requested or granted for the Company to file any
Tax
Return that has not yet been filed or to pay any Tax that has not yet been
paid
and the Company has not granted a power of attorney that remains outstanding
with regard to any Tax matter;
(v) the
Company has not received notice of a determination by a Tax Authority that
Taxes
are currently owed by the Company (such determination to be referred to as
a
"Tax
Deficiency")
and,
to the Company's knowledge, no Tax Deficiency is proposed or
threatened;
(vi) all
Tax
Deficiencies have been paid or finally settled and all amounts determined by
settlement to be owed have been paid;
(vii) there
are
no Tax Liens on or pending against the Company or any of the Assets, other
than
those which constitute Permitted Liens;
(viii) there
are
no presently outstanding waivers or extensions or requests for a waiver or
extension of the time within which a Tax Deficiency may be asserted or
assessed;
(ix) no
issue
has been raised in any examination, investigation, Company Required Consents,
suit, action, claim or proceeding relating to Taxes (a "Tax
Company Required Consents")
which,
by application of similar principles to any past, present or future period,
would result in a Tax Deficiency for such period;
(x) there
are
no pending or threatened Tax Audits of the Company;
(xi) the
Company has no deferred intercompany gains or losses that have not been fully
taken into income for income Tax purposes;
(xii) there
are
no transfer or other taxes (other than income taxes) imposed by any state on
the
Company by virtue of the Contemplated Transactions; and
28
(xiii) no
claim
has been made by any Tax Authority that the Company is subject to Tax in a
jurisdiction in which the Company is not then paying Tax of the type
asserted.
Each
reference to a provision of the Code in this Section 2.16 shall be treated
for state and local Tax purposes as a reference to analogous or similar
provisions of state and local law.
(b) To
the
Company’s knowledge, the Company has collected and remitted to the appropriate
Tax Authority all sales and use or similar Taxes required to be collected on
or
prior to the date of Closing and has been furnished properly completed exemption
certificates for all exempt transactions and has no information otherwise or
notice of any claim by any government or jurisdiction with regards thereto.
The
Company has maintained and has in its possession all records, supporting
documents and exemption certificates required by applicable sales and use Tax
statutes and regulations to be retained in connection with the collection and
remittance of sales and use Taxes for all periods up to and including the date
of Closing. With respect to sales made by the Company prior to the date of
Closing for which sales and use Taxes are not yet due as of the date of Closing,
all applicable sales and use Taxes payable with respect to such sales will
have
been collected or billed by the Company and will be included in the Assets
of
the Company as of the date of Closing.
SECTION
2.17 Compliance
with Laws.
The
Company is not in violation of any order, judgment, injunction, award, citation,
decree, consent decree or writ (collectively, "Orders")
and to
the best of the Company’s knowledge, belief and information, any Laws of any
Governmental Bodies affecting the Company, the Company Shares or the Business.
SECTION
2.18 Permits.
The
Company has obtained all licenses, permits, certificates, certificates of
occupancy, orders, authorizations and approvals (collectively, "Permits"),
and
has made all required registrations and filings with all Governmental Bodies,
that are necessary to the ownership of the Assets, the use and occupancy of
the
Leased Real Property, as presently used and operated, and the conduct of the
Business or otherwise required to be obtained
by the Company. All Permits required to be obtained or maintained by the Company
are listed on Schedule 2.18
and are
in full force and effect; no violations are or have been recorded, nor have
any
notices or violations thereof been received, in respect of any Permit; and
no
proceeding is pending or threatened to revoke or limit any Permit; and the
consummation of the Contemplated Transactions will not (or with the giving
of
notice or the passage of time or both will not) cause any Permit to be revoked
or limited.
SECTION
2.19 Environmental
Matters.
To the
best of the Company’s knowledge, belief and information, the Company is, and at
all times has been, in full compliance with, and has not been and is not in
violation of or liable under,
any Environmental Law.
28
SECTION
2.20 Finders
Fees.
Other
than as set forth in Section 4.7, there is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of the Company who might be entitled to any fee or commission from the
Company in connection with the consummation of the Contemplated
Transactions.
SECTION
2.21 Disclosure.
Neither
this Agreement, the Schedules hereto, nor any reviewed or unaudited financial
statements, documents or certificates furnished or to be furnished to Buyer
or
Parent by or on behalf of the Company pursuant to this Agreement contains or
will contain any untrue statement of a material fact or omits or will omit
to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. There are no events, transactions or other facts,
which, either individually or in the aggregate, may give rise to circumstances
or conditions which would have a material adverse effect on the general affairs
or Condition of the Business.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF BUYER AND PARENT
Buyer
and
Parent jointly and severally represent, warrant and covenant to the Company
as
follows and acknowledge that the Company is relying upon such representations
and warranties in connection with the Contemplated Transactions:
SECTION
3.1 Authority
Relative to this Agreement.
Buyer
and Parent have full power and authority to execute and deliver each Transaction
Document to which they are or, at Closing, will be, a party and to consummate
the Contemplated Transactions. Following the approval of the boards of directors
of Parent and Buyer and the shareholders of the Buyer with respect to the
Contemplated Transactions, the execution, delivery and performance by Buyer
and
Parent of each Transaction Document and the consummation of the Contemplated
Transactions to which they are or, at Closing, will be, a party have been duly
and validly authorized and approved by Buyer and Parent and no other acts by
or
on behalf of Buyer or Parent are necessary or required to authorize the
execution, delivery and performance by Buyer and Parent of each Transaction
Document and the consummation of the Contemplated Transactions to which they
are
or, at Closing, will be a party. This Agreement and the other Transaction
Documents to which Buyer and Parent are a party have been, duly and validly
executed and delivered by Buyer and Parent and (assuming the valid execution
and
delivery thereof by the other parties thereto) constitutes, or will, at the
Closing, constitute, as the case may be, the legal, valid and binding agreements
of Buyer and Parent enforceable against each of them in accordance with their
respective terms, except as such obligations and their enforceability may be
limited by applicable bankruptcy and other similar Laws affecting the
enforcement of creditors' rights generally and except that the availability
of
equitable remedies is subject to the discretion of the court before which any
proceeding therefor may be brought (whether at law or in equity).
28
SECTION
3.2 No
Conflicts; Consents.
The
execution, delivery and performance by Buyer and Parent of each Transaction
Document to which they are a party and the consummation of the Contemplated
Transactions to which Buyer and Parent are a party does not and will not:
(i) violate any provision of the certificate of incorporation or by-laws of
Buyer or Parent, as the case may be; (ii) require Buyer or Parent to obtain
any consent, approval or action of or waiver from, or make any filing with,
or give
any
notice to, any Governmental Body or any other person, except as set forth on
Schedule 3.2
(the
"Buyer
Required Consents");
(iii) except as set forth in Schedule
3.2,
violate,
conflict with or result in the breach or default under (with or without the
giving of notice or the passage of time), or permit the suspension or
termination of, any material Contract to which Buyer or Parent are a party
or
any of them or any of their assets is bound or subject or result in the creation
or any Lien upon any of Parent Common Stock or upon any assets of Buyer or
Parent; or (iv) violate any Order or, to Buyer’s knowledge, any Law of any
Governmental Body against, or binding upon, Buyer or Parent, or upon any of
their respective assets or businesses.
SECTION
3.3 Corporate
Existence and Power of Buyer.
Buyer
is a corporation duly organized, validly existing and in good standing under
the
laws of the Province of Ontario, Canada, and has all
requisite corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now
conducted. Other
than the execution of this Agreement, Buyer has not conducted any business
of
any nature.
SECTION
3.4 Corporate
Existence and Power of Parent.
Parent
is
a
corporation duly organized, validly existing and in good standing under the
laws
of the State of Pennsylvania, and has all requisite corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
SECTION
3.5 The
Parent Common Stock.
At the
closing, the Parent Common Stock will have been duly authorized by Parent and,
when issued to Shareholders pursuant to this Agreement, will be duly issued,
fully paid and non-assessable shares of Parent Common Stock. The Parent Common
Stock, when issued pursuant hereto: (i) will not be issued in violation of
or subject to any preemptive rights, rights of first refusal or, other than
as
set forth in this Agreement, contractual restrictions of any kind; and
(ii) will vest in Shareholders, respectively, good title to Parent Common
Stock free and clear of all Liens.
Capitalization.
The
authorized capital stock of Parent consists of: (i) 250,000,000,000 shares
of
common stock, $0.0001 par value. Parent has; (i) 37,156,062,880 shares of common
stock; and (ii) no shares of convertible preferred stock; issued and outstanding
and at the Closing, Parent will not, have outstanding any capital stock or
other
securities or any rights, warrants or options to acquire securities of Parent
or
any convertible or exchangeable securities and, other than Buyer pursuant to
this Agreement, no person has or, at Closing will have, any
28
right
to
purchase or otherwise acquire any securities of Parent. In
addition, at the Closing following the Reverse Stock Split (See Section 4.8),
Parent will have 7,431,212 shares
of
common stock; and (ii) no shares of convertible preferred stock; issued and
outstanding There are, and at Closing there will be, no outstanding obligations
of Parent to repurchase, redeem or otherwise acquire any securities of Parent.
All of Parent Common Stock is, and at Closing will be, duly authorized, duly
and
validly issued, fully paid and non-assessable, and none were issued in violation
of any preemptive rights, rights of first refusal or any other contractual
or
legal restrictions of any kind. Pursuant
to the order of the United States Bankruptcy Court for the Western District
of
Pennsylvania; In Re: BICO, INC., f/k/a Biocontrol Technology, Inc. Bankruptcy
No. 03-23239-MBM (the "Bankruptcy
Court Order"),
Parent has 33,503,739,194 shares of its common stock which it may issue for
working capital and other purposes (the "Bankruptcy
Shares").
In
addition, pursuant to the Bankruptcy Court Order, Parent has 2,180,399,056
shares of its common stock which it may issue for certain debtor obligations.
SECTION
3.6 Disclosure
of Information.
Parent
has been given the opportunity: (i) to ask questions of, and to receive answers
from, persons acting on behalf of the Company concerning the terms and
conditions of the Contemplated Transactions and the business, properties,
prospects and financial conditions of the Company; and (ii) to obtain any
additional information (to the extent the Company or any of the Shareholders
possesses such information or is able to acquire it without unreasonable effort
or expense and without breach of confidentiality obligations) necessary to
verify the accuracy of information provided about the Company.
SECTION
3.7 SEC
Filings.
Parent
has filed with the SEC all forms, reports, schedules, and statements that were
required to be filed by it with the SEC within the three (3) year period ending
on the Effective Time, and previously has furnished or made available to the
Company accurate and complete copies of all the SEC Documents. As of their
respective dates, the SEC Documents were prepared in accordance with the
Exchange Act and the Securities Act and did not contain any untrue statement
of
a material fact or omit to state a material fact required to be stated in those
documents or necessary to make the statements in those documents not misleading,
in light of the circumstances under which they were made. As of their respective
dates, these reports and statements will not contain any untrue statement of
a
material fact or omit to state a material fact required to be stated in them
or
necessary to make the statements in them not misleading, in light of the
circumstances under which they are made and these reports and statements will
comply in all material respects with all applicable requirements of the Exchange
Act and the Securities Act.
SECTION
3.8 Financial
Statements.
The
audited consolidated financial statements and unaudited consolidated interim
financial statements of Parent that are included or incorporated in the SEC
Documents were prepared in accordance with GAAP applied on a consistent basis
during the periods involved (except as otherwise indicated in the notes to
them)
and fairly present the consolidated financial position, results of operations,
and cash flows from operating, investing, and financing activities of Parent
as
of the dates and for the periods
28
indicated,
except that the unaudited consolidated interim financial statements in the
SEC
Documents are subject to normal year-end adjustments and were prepared in
accordance with the instructions to SEC Form 10-QSB and, accordingly, omit
or
condense certain footnotes and other information normally included in financial
statements prepared in accordance with GAAP. The consolidated financial
statements of Parent that are included or incorporated in any subsequent report
or statement that Parent mails to its shareholders generally or files with
the
SEC during the period after the date of this Agreement and before the Closing
Date will be prepared in accordance with GAAP applied on a consistent basis
during the periods involved (except as otherwise indicated in them, the notes
to
them, or any related report of Parent’s independent accountants) and will fairly
present the financial information that they purport to present, except that
the
unaudited, consolidated interim financial statements will be subject to normal
year-end adjustments and will omit or condense certain footnotes and other
information normally included in financial statements prepared in accordance
with GAAP.
SECTION
3.9 Charter
Documents and Corporate Records.
Each
of
Parent and Buyer has heretofore delivered to the Company true and complete
copies of the certificate of incorporation, by-laws and minute books, or
comparable instruments, of Parent and Buyer as in effect on the date hereof.
The
stock transfer books of Parent and Buyer have been made available to the Company
for its inspection and are true and complete in all respects.
SECTION
3.10 Liabilities.
Except
as set forth on Schedule 3.11, Parent has not incurred any Liabilities since
September 30, 2005 except those incurred in the ordinary course of business
which have been discharged.
SECTION
3.11 Absence
of Certain Changes.
(a) Since
September 30, 2005, Parent has conducted its business in the ordinary course
consistent with past practice and except as disclosed on Schedule 3.12 hereto
there has not been:
(i) Any
change in any method of accounting or accounting practice by
Parent;
(ii) Any
increase in the compensation, commission, bonus or other direct or indirect
remuneration paid, payable or to become payable to any officer, stockholder,
director, consultant, agent or employee of Parent, or any alteration in the
benefits payable or provided to any thereof;
(iii) Any
material adverse change in the relationship of Parent with its employees,
customers, suppliers or vendors;
(iv) Except
for any changes made in the ordinary course of business, any material change
in
any of Parent's business policies, including advertising, marketing, selling,
pricing, purchasing, personnel, returns or budget policies;
28
(v) Any
agreement or arrangement whether written or oral to do any of the foregoing;
and
(vi) Parent
has no Liability that is past due except as shown on the financial statements
as
filed with the SEC.
SECTION
3.12 Contracts.
(a) Schedule 3.13
sets
forth an accurate and complete list of all Contracts to which Parent is a party
or by which it or its assets are bound or subject that: (i) cannot be canceled
upon 30 days' notice without the payment or penalty of less than One Thousand
Dollars ($1,000); or (ii) involve aggregate annual future payments by or to
any
person of more than Five Thousand Dollars ($5,000). True and complete copies
of
all written Contracts (including all amendments thereto and waivers in respect
thereof) and summaries of the material provisions of all oral Contracts so
listed have been made available to the Company.
(b) All
Contracts to which Parent is a party are valid, subsisting, in full force and
effect and binding upon Parent and the other parties thereto, in accordance
with
their terms, except that no representation or warranty is given as to the
enforceability of any oral Contracts. To the best of Parent’s knowledge and
belief, except as set forth on Schedule
3.13,
Parent
is not in default (or alleged default) under any such Contract.
SECTION
3.13 Claims
and Proceedings.
There
are no outstanding Orders of any Governmental Body against or involving Parent,
its assets or its business. There are no Claims (whether or not the defense
thereof or Liabilities in respect thereof are covered by insurance), pending
or,
to the best of Parent's knowledge, threatened on the date hereof, against or
involving Parent, its assets or its business.
SECTION
3.14 Taxes.
Except
as set forth on Schedule 3.15: (a)
(i) Parent
has filed or, if not yet due but due before Closing, will timely file all Tax
Returns required to be filed by it for all taxable periods ending on or before
the date of Closing and all such Tax Returns are or, if not yet filed, will
be,
upon filing, true, correct and complete in all material respects;
(ii) Parent
has paid, or if payment is not yet due but due before Closing, will promptly
pay
when due to each appropriate Tax Authority, all Taxes of Parent shown as due
on
the Tax Returns required to be filed by it for all taxable periods ending on
or
before the date of Closing;
28
(iii) the
accruals for Taxes currently payable as well as for deferred Taxes shown on
the
financial statements of Parent as of the date of the Interim Statements or
the
date of any financial statements delivered hereunder: (A) adequately
provide for all contingent Tax Liabilities of Parent as of the date thereof;
and
(B) accurately reflect, as of the date thereof, all unpaid Taxes of Parent
whether or not disputed, in each case as required to be reflected thereon in
order for such statements to be in accordance with GAAP;
(iv) no
extension of time has been requested or granted for Parent to file any Tax
Return that has not yet been filed or to pay any Tax that has not yet been
paid
and Parent has not granted a power of attorney that remains outstanding with
regard to any Tax matter;
(v) Parent
has not received notice of a Tax Deficiency and, to Parent's knowledge, no
Tax
Deficiency is proposed or threatened;
(vi) all
Tax
Deficiencies have been paid or finally settled and all amounts determined by
settlement to be owed have been paid;
(vii) there
are
no Tax Liens on or pending against Parent or any of the assets, other than
those
which constitute Permitted Liens;
(viii) there
are
no presently outstanding waivers or extensions or requests for a waiver or
extension of the time within which a Tax Deficiency may be asserted or
assessed;
(ix) no
issue
has been raised in any examination, investigation, suit, action, claim or
proceeding relating to Taxes which, by application of similar principles to
any
past, present or future period, would result in a Tax Deficiency for such
period;
(x) there
are
no pending or threatened Tax Audits of Parent;
(xi) Parent
has no deferred intercompany gains or losses that have not been fully taken
into
income for income Tax purposes;
(xii) there
are
no transfer or other taxes (other than income taxes) imposed by any state on
Parent by virtue of the Contemplated Transactions; and
28
(xiii) no
claim
has been made by any Tax Authority that Parent is subject to Tax in a
jurisdiction in which Parent is not then paying Tax of the type
asserted.
Each
reference to a provision of the Code in this Section 3.16 shall be treated
for state and local Tax purposes as a reference to analogous or similar
provisions of state and local law.
(b) To
Parent’s knowledge, Parent has collected and remitted to the appropriate Tax
Authority all sales and use or similar Taxes required to be collected on or
prior to the date of Closing and has been furnished properly completed exemption
certificates for all exempt transactions and has no information otherwise or
notice of any claim by any government or jurisdiction with regards thereto.
Parent has maintained and has in its possession all records, supporting
documents and exemption certificates required by applicable sales and use Tax
statutes and regulations to be retained in connection with the collection and
remittance of sales and use Taxes for all periods up to and including the date
of Closing. With respect to sales made by Parent prior to the date of Closing
for which sales and use Taxes are not yet due as of the date of Closing, all
applicable sales and use Taxes payable with respect to such sales will have
been
collected or billed by Parent and will be included in the assets of Parent
as of
the date of Closing.
SECTION
3.15 Compliance
with Laws.
Parent
is not in violation of any Orders and to the best of Parent’s knowledge, belief
and information, any Laws of any Governmental Bodies affecting Parent or the
Parent Common Stock.
SECTION
3.16 Environmental
Matters.
To the
best of Parent’s knowledge, belief and information, Parent is, and at all times
has been, in full compliance with, and has not been and is not in violation
of
or liable under, any Environmental Law.
SECTION
3.17 Finders
Fees.
Other
than as set forth in Section 4.7, there is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of Parent who might be entitled to any fee or commission from Parent
in
connection with the consummation of the Contemplated Transactions.
ARTICLE
IV
COVENANTS
AND AGREEMENTS
The
Company covenants to Buyer and Buyer and Parent, jointly and severally, covenant
to the Company that:
28
SECTION
4.1 Filings
and Authorizations.
The
parties hereto shall cooperate and use their respective best efforts to make,
or
cause to be made, all registrations, filings, applications and submissions,
to
give all notices and to obtain all governmental or other third party consents,
transfers, approvals, Orders and waivers necessary or desirable for the
consummation of the Contemplated Transactions in accordance with the terms
of
this Agreement including without limitation the preparation of any SEC Documents
required to be filed with the SEC in connection with the transactions
contemplated by this Agreement; and shall furnish copies thereof to each other
party prior to such filing and shall not make any such
registration, filing, application or submission to which Buyer or the Company,
as the case may be, reasonably objects in writing. All such filings shall comply
in form and content in all material respects with applicable Law. The parties
hereto also agree to furnish each other with copies of such filings and any
correspondence received from any Governmental Body in connection
therewith.
SECTION
4.2 Confidentiality.
Each
party hereto shall hold in strict confidence, and shall use its best efforts
to
cause all of its officers, employees, agents and professional counsel and
accountants, (collectively, "Representatives")
to
hold in strict confidence, unless compelled to disclose by judicial or
administrative process, or by other requirements of Law, all information
concerning any other party which it has obtained from such party
prior to, on, or after the date hereof in connection with the Contemplated
Transactions, and each party shall not use or disclose to others, or permit
the
use of or disclosure of, any such information so obtained, and will not release
or disclose such information to any other person, except
its Representatives who need to know such information in connection with this
Agreement and who shall be advised of the provisions of this Section 4.2.
The foregoing provision shall not apply to any such information to the extent;
(i) known by any party prior to the date such information was provided to
such party in connection with the Contemplated Transactions; (ii) made
known to such party from a third party not in breach of any confidentiality
requirement; or (iii) made public through no fault of such party or any of
its Representatives.
SECTION
4.3 Expenses.
Buyer,
Parent and the Company (for itself and on behalf of each Shareholder) shall
bear
their respective expenses, in each case, incurred in connection with the
preparation, execution and performance of the Transaction Documents and the
Contemplated Transactions, including, without limitation, all fees and expenses
of their respective Representatives,
and the
Company shall bear all the fees and expenses of any Company's
Representatives.
SECTION
4.4 Tax
Matters.
The
Company and Buyer shall reasonably cooperate, and shall cause their respective
Representatives reasonably to cooperate, in preparing and filing all Tax
Returns, including maintaining and making available to each other all records
necessary in connection with the preparation and filing of Tax Returns, the
payment of Taxes and the resolution of Tax Audits and Tax Deficiencies with
respect to all taxable periods. Refunds or credits of Taxes that were paid
by
the Company with respect to any periods shall be for the account of the
Company.
28
SECTION
4.5 Further
Assurances.
At any
time and from time to time after the date of Closing, upon the reasonable
request of any party hereto, the other party(ies), shall do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged or
delivered, all such further documents, instruments or assurances, as may be
necessary, desirable or proper to carry out the intent and accomplish the
purposes of this Agreement.
SECTION
4.6 Restricted
Securities.
The
parties acknowledge and agree that the Company Shares and Parent Common Stock
being issued or transferred pursuant to the Contemplated Transactions are being
issued or transferred pursuant to the exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Securities
Act")
and constitute "restricted securities" within the meaning of the Securities
Act.
Such securities may not be transferred absent compliance with the provisions
of
the Securities Act, other applicable Laws, and all stock certificates evidencing
such securities shall bear a legend to such effect and to the effect that such
shares are subject to the terms and provisions of this Agreement;
provided, however, that it is anticipated that for purposes of Rule 144 of
the
Securities Act, that the holding period of Parent Common Stock for each
shareholder of the Company shall be determined to commence on the date of
acquisition of the Company Shares (as converted pursuant to this Agreement)
for
each such respective holder.
Consulting
Securities.
The
parties acknowledge and agree that in consideration of certain consulting
services performed for Buyer, Parent and the Company, Parent shall issue shares
of its common stock from the Bankruptcy Shares to the following entities in
the
amounts as set forth (the "Consulting
Shares"):
(i)
Xxxxxx, Xxxxxx & Xxxxxxxxx Capital Corporation 1,327,002 shares; (ii)
Topcast Management Limited 1,327,002 shares; (iii) Xxxxx & Xxxxxxx LLP
530,801 shares; (iv) and Xxxxxxx Xxxxxxxx, or his designee, 3,184,805 shares.
Parent
Common Stock Reverse Stock Split.
The
parties acknowledge and agree that prior to the consummation of the transactions
contemplated by this Agreement, Parent shall: (i) cause all of the issued and
outstanding shares of the Series M Preferred Stock to be converted into shares
of Parent Common Stock (the "Conversion");
and
(ii) following the Conversion, cause a reverse stock split of the Parent Common
Stock of 5,000 shares for 1 share, or such other reverse stock split ratio
as
the Company shall direct at least ten (10) days prior to the Closing (the
"Reverse
Stock Split").
SECTION
4.7 Due
Diligence. Prior to the Closing Date, Parent and Buyer agree that the
Company shall be entitled, through its Representatives, to make such
investigation of the properties, businesses and operations of Parent and Buyer,
and such examination of the books, records and financial condition of Parent
and
Buyer, as the Company reasonably deems necessary. Any such investigation and
examination shall be conducted at reasonable times, under reasonable
circumstances and upon reasonable notice. No investigation by Buyer shall
diminish or obviate any of the representations, warranties, covenants or
agreements of Parent or Buyer contained in this Agreement.
28
ARTICLE
V
CONDITIONS
TO CLOSING
SECTION
5.1 Conditions
to the Obligations of the Parties.
The
obligations of the Parties to consummate the Contemplated Transactions are
subject to the satisfaction of the following conditions:
(a) Liabilities
of the Parent.
The
aggregate Liabilities of the Parent shall not exceed One Hundred Thousand
($100,000.00) exclusive of fees and out-of-pocket costs for transfer agent
services in connection with the Reverse Stock Split which shall not exceed
$20,000.00.
(b) Consulting
Shares.
The
Parent shall issue the Consulting Shares as set forth in Section 4.7 hereof.
(c) No
Injunction.
No
provision of any applicable Law and no Order shall prohibit the consummation
of
the Contemplated Transactions.
(d) No
Proceedings or Litigation.
No
Claim instituted by any person (other than Buyer, the Company, Shareholders
or
their respective Affiliates) shall have been commenced or pending against any
Shareholder, the Company, Buyer or any of their respective Affiliates, officers
or directors, which Claim seeks to restrain, prevent, change or delay in any
respect the Contemplated Transactions or seeks to challenge any of the terms
or
provisions of this Agreement or seeks damages in connection with any of such
transactions.
(e) Company
Advance of Costs. Company shall, if reasonably necessary, have advanced
estimated costs associated with initiating work on the Parent’s 2005 audit and
the reverse stock split.
SECTION
5.2 Conditions
to the Obligations of the Company.
The
obligations of the Company hereunder to consummate the Contemplated Transactions
are subject, at the option of the Company, to the fulfillment prior to or at
the
Closing of each of the following further conditions:
(a) Performance.
Buyer
and Parent shall have performed and complied in all material respects with
all
agreements, obligations and covenants required by this Agreement to be performed
or complied with by it at or prior to the Closing Date.
28
(b) Representations
and Warranties.
The
representations and warranties of Buyer and Parent contained in this Agreement
and in any certificate or other writing delivered by Buyer and Parent pursuant
hereto shall be true in all material respects at and as of the Closing Date
as
if made at and as of such time (except for those representations and warranties
made as of a specific date which shall be true in all material respects as
of
the date made).
(c) No
Material Adverse Change.
From
the date hereof through the Closing, there shall not have occurred any event
or
condition that has had or could have a material adverse effect on
Parent.
(d) Documentation.
There
shall have been delivered to the Company the following:
(i) A
certificate, dated the Closing Date, of the Chairman of the Board and the
President of Buyer and Parent confirming the matters set forth in
Section 5.2(a) (b) and (c) hereof;
(ii) Parent
Common Stock certificates, registered in the name of each Shareholder as set
forth on Schedule
1
attached
hereto, (with the appropriate restrictive legends as applicable), evidencing
satisfaction of the Purchase Price in accordance with Section 1.8;
(iii) Ontario
Certificate of Merger; and
(iv) The
Amendment filed with the Secretary of State of the State of
Pennsylvania.
SECTION
5.3 Conditions
to the Obligations of Buyer and Parent.
All
obligations of Buyer and/or Parent to consummate the Contemplated Transactions
hereunder are subject, at the option of Buyer and/or Parent, to the fulfillment
prior to or at the Closing of each of the following further
conditions:
(a) Performance.
The
Company shall have performed and complied in all material respects with all
agreements, obligations and covenants required by this Agreement to be performed
or complied with by them at or prior to the Closing Date.
(b) Representations
and Warranties.
The
representations and warranties of the Company, contained in this Agreement
and
in any certificate or other writing delivered by the Company pursuant hereto
shall be true in all material respects at and as of the Closing Date as if
made
at and as of such time (except for those representations and warranties made
as
of a specific date which shall be true in all material respects as of the date
made).
28
(c) No
Material Adverse Change.
From
the date hereof through the Closing, there shall not have occurred any event
or
condition that has had or could have a material adverse effect on the
Company.
(d) Documentation.
There
shall have been delivered to Parent and Buyer the following:
(i) A
certificate, dated the Closing Date, of the Chairman of the Board, the President
or Chief Financial Officer of the Company confirming the matters set forth
in
Section 5.3(a) (b) and (c) hereof;
(ii) A
certificate, dated the Closing Date, of the Secretary of the Company certifying,
among other things, that attached or appended to such certificate: (i) is a
true and correct copy of the Company's certificate of incorporation and all
amendments thereto, if any, as of the date thereof certified by the Ministry
of
Consumer and Business Services of the Province of Ontario, Canada; and
(ii) is a true and correct copy of the Company's memorandum of association
as of the date thereof;
(iii) An
executed release from each of Buyer, Parent, the Company and the officers and
directors of Parent which shall: (A) release the officers and directors of
Parent to pursue the business of commercially distributing an internet enabled
video telephone device, and sell advertising over the webphones; and (B)
mutually release the officers, directors of Parent from any claims and
obligations that may exist as of the consummation of the Merger (other than
those claims and obligations that the Company may have pursuant to the terms
of
this Agreement;
(iv) Ontario
Certificate of Merger;
(v) The
Amendment filed with the Secretary of State of the State of Pennsylvania;
and
(vi) Company
Share certificates representing the number of Company Shares duly endorsed
in
blank or accompanied by stock powers duly endorsed in blank and in suitable
form
for transfer to Buyer by delivery.
28
ARTICLE
VI
INDEMNIFICATION
SECTION
6.1 Survival
of Representations, Warranties and Covenants.
(a)
Notwithstanding any right of Buyer and Parent fully to investigate the affairs
of the Company and the rights of the Company to fully investigate the affairs
of
Buyer and Parent, and notwithstanding any knowledge of facts determined or
determinable by Buyer, Parent, or the Company, pursuant to such investigation
or
right of investigation, Buyer, Parent, and the Company, have the right to rely
fully upon the representations, warranties, covenants and agreements of the
Company, and Buyer and Parent respectively, contained in this Agreement, or
listed or
disclosed on any Schedule hereto or in any instrument delivered in connection
with or pursuant to any of the foregoing. All such representations, warranties,
covenants and agreements shall survive the execution and delivery of this
Agreement and the Closing hereunder. Notwithstanding the foregoing, all
representations and warranties of the Company and Buyer and Parent respectively,
contained in this Agreement, on any Schedule hereto or in any instrument
delivered in connection with or pursuant to this Agreement shall terminate
and
expire twelve (12) months after the date of Closing.
(b) All
representations and warranties of Buyer and Parent shall terminate and expire
twelve (12) months after the date of Closing; provided,
however,
that
the liability of Buyer and Parent shall not terminate as to any specific claim
or claims of the type referred to in Section 6.3 hereof, whether or not fixed
as
to Liability or liquidated as to amount, with respect to which Buyer and/or
Parent has been given specific notice on or prior to the date on which such
Liability would otherwise terminate pursuant to the terms of this Section
6.1(b), or which arise or result from or are related to a Claim for
fraud.
SECTION
6.2 Obligation
of the Company to Indemnify.
The
Company agrees to indemnify, defend and hold harmless Buyer and Parent (and
their respective directors, officers, employees, Affiliates, successors and
assigns) from and against all Claims, losses, Liabilities, Regulatory
Actions, damages, deficiencies, judgments, settlements, costs of investigation
or other expenses (including Taxes, interest, penalties and reasonable
attorneys' fees and fees of other experts and disbursements and expenses
incurred in enforcing this indemnification) (collectively, the
"Losses") suffered
or incurred by Buyer and/or Parent, the Company,
or any of the foregoing persons arising out of any breach of the representations
and warranties
of the Company contained in this Agreement, or of the covenants and agreements
of Buyer or Parent contained in this Agreement or in the Schedules or any other
Transaction Document.
28
SECTION
6.3 Obligation
of Buyer, Parent and the Parent Shareholder to Indemnify.
Buyer
and Parent, and the shareholder of Parent set forth on Schedule
6.3
(the
"Parent
Shareholder")
jointly and severally agree to indemnify, defend and hold harmless the Company
(and any heirs, successor or assignee thereof) from and against any Losses
suffered or incurred by the Company or any of the foregoing persons arising
out
of any breach of the representations and warranties of Buyer or Parent, or
of
the covenants and agreements of Buyer or Parent contained in this Agreement
or
in the Schedules or any other Transaction Document.
SECTION
6.4 Notice
and Opportunity to Defend Third Party Claims.
(a)
Within
ten (10) days following receipt by any party hereto (the "Indemnitee")
of
notice of any demand, claim, circumstance or Tax Audit which would or might
give
rise to a claim, or the commencement (or threatened commencement) of any action,
proceeding or investigation that may result in a Loss (an "Asserted
Liability"),
the
Indemnitee shall give notice thereof (the "Claims
Notice")
to the
party or parties obligated to provide indemnification pursuant to Sections
6.2,
or 6.3 (collectively, the "Indemnifying
Party").
The
Claims Notice shall describe the Asserted Liability in reasonable detail and
shall indicate the amount (estimated, if necessary, and to the extent
feasible) of the Loss that has been or may be suffered by the
Indemnitee.
(b) The
Indemnifying Party may elect to defend, at its own expense and with its own
counsel, any Asserted Liability unless: (i) the Asserted Liability includes
a Claim seeking an Order for injunction or other equitable or declaratory relief
against the Indemnitee, in which case the Indemnitee may at its own cost and
expense and at its option defend the portion of the Asserted Liability seeking
equitable or declaratory relief against the Indemnitee, or (ii) the
Indemnitee shall have reasonably, and in good faith, after consultation with
the
Indemnifying Party, concluded that: (x) there is a conflict of interest
between the Indemnitee and the Indemnifying Party which could prevent or
negatively influence the Indemnifying Party from impartially or adequately
conducting such defense; or (y) the Indemnitee shall have one or more
defenses not available to the Indemnifying Party but only to the extent such
defense cannot legally be asserted by the Indemnifying Party on behalf of the
Indemnitee. If the Indemnifying Party elects to defend such Asserted Liability,
it shall within ten (10) days (or sooner, if the nature of the Asserted
Liability so requires) notify the Indemnitee of its intent to do so, and
the Indemnitee shall cooperate, at the expense of the Indemnifying Party, in
the
defense of such Asserted Liability. If the Indemnifying Party elects not to
defend the Asserted Liability, is not permitted to defend the Asserted Liability
by reason of the first sentence of this Section 6.4(b), fails to notify the
Indemnitee of its election as herein provided or contests its obligation to
indemnify under this Agreement with respect to such Asserted Liability, the
Indemnitee may pay, compromise or defend such Asserted Liability at the sole
cost and expense of the Indemnifying Party. Notwithstanding the foregoing,
neither the Indemnifying Party nor the Indemnitee may settle or compromise
any
claim over the reasonable written objection of the other, provided that the
Indemnitee may settle or compromise any claim as to which the Indemnifying
Party
has failed to notify the Indemnitee of its election under this
Section 6.4(b) or
28
as
to
which the Indemnifying Party is contesting its indemnification obligations
hereunder. If the Indemnifying Party desires to accept a reasonable, final
and
complete settlement of an Asserted Liability so that such Indemnitee’s Loss is
paid in full and the Indemnitee refuses to consent to such settlement, then
the
Indemnifying Party’s liability to the Indemnitee shall be limited to the amount
offered in the settlement. The Indemnifying Party will exercise good faith
in
accepting any reasonable, final and complete settlement of an Asserted
Liability. In the event the Indemnifying Party elects to defend any Asserted
Liability, the Indemnitee may participate, at its own expense, in the defense
of
such Asserted Liability. In the event the Indemnifying Party is not permitted
by
the Indemnitee to defend the Asserted Liability, it may nevertheless participate
at its own expense in the defense of such Asserted Liability. If the
Indemnifying Party chooses to defend any Asserted Liability, the Indemnitee
shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for such defense.
Any Losses of any Indemnitee for which an Indemnifying Party is liable for
indemnification hereunder shall be paid upon written demand
therefor.
SECTION
6.5 Limits
on Indemnification.
(a)
Notwithstanding the foregoing or the limitations set forth in Section 6.5(b)
below, in the event such Losses arise out of any fraud related matter on the
part of any Indemnifying Party, then such Indemnifying Party shall be obligated
to indemnify the Indemnitee in respect of all such Losses. Buyer, Parent and
the
Company agree that the Parent's obligation to indemnify under this
Article VI shall not survive the Closing and Parent shall have no further
liability to the Company after the Closing but that such obligations to
indemnify shall be the sole obligation of the
Parent Shareholder.
(b) The
Company shall not be liable to indemnify Buyer pursuant to Section 6.2
above and Parent Shareholder shall not be liable to indemnify the Company
pursuant to Section 6.3 above: (i) unless a Claims Notice describing the
loss is delivered to the Indemnifying Party within 6 months after the Closing
(except for Losses arising out of an Indemnifying Party’s fraud); and; (ii) with
respect to special, consequential or punitive damages; or (iii) in respect
of
any individual Loss of less than $10,000.The Company's sole remedy for
indemnification from the Parent Shareholder pursuant to Section 6.3 above shall
be cancellation or retirement of the Parent Common Stock listed on Schedule
6.3;
provided, however, that for a period beginning on the six month anniversary
of
the Closing Date and ending on the one year anniversary of the Closing Date,
only fifty percent (50%) of the Parent Shareholder's Parent Common Stock shall
be subject to cancellation or retirement.
SECTION
6.6 Exclusive
Remedy.
The
parties agree that the indemnification provisions of this Article VI shall
constitute the sole or exclusive remedy of any party in seeking damages or
other
monetary relief with respect to this Agreement and the Contemplated
Transactions, provided that, nothing herein shall be construed to limit the
right of any
party
to seek: (i) injunctive relief for a breach of this Agreement;
(ii) legal or equitable relief for a Claim for fraud; or (iii) indemnity
under the bylaws of Parent if they are or have been a director or officer of
Parent or Buyer.
28
ARTICLE
VII
SPECIFIC
PERFORMANCE; TERMINATION
SECTION
7.1 Specific
Performance.
The
Company, Parent, and Buyer acknowledges and agrees that, if any of the Company,
Parent, or Buyer fails to proceed with the Closing in any circumstance other
than those described in clauses (a), (b), (c) or (d) of
Section 7.2 below, the others will not have adequate remedies at law with
respect to such breach. In such event, and in addition to each party's right
to
terminate this Agreement, each party shall be entitled, without the necessity
or
obligation of posting a bond or other security, to seek injunctive relief,
by
commencing a suit in equity to obtain specific performance of the obligations
under this Agreement or to xxx for damages, in each case, without first
terminating this Agreement. The Company, Parent or Buyer specifically affirms
the appropriateness of such injunctive, other equitable relief or damages in
any
such action.
SECTION
7.2 Termination.
This
Agreement may be terminated and the Contemplated Transactions may be abandoned
at any time prior to the Closing:
(a) By
mutual
written consent of the Company and Buyer;
(b) By
the
Company if: (i) there has been a misrepresentation or breach of warranty on
the part of Buyer or Parent in the representations and warranties contained
herein and such misrepresentation or breach of warranty, if curable, is not
cured within thirty days after written notice thereof from the Company;
(ii) Buyer or Parent has committed a breach of any covenant imposed upon it
hereunder and fails to cure such breach within thirty days after written notice
thereof from the Company; or (iii) any condition to the Company's
obligations under Section 5.2 becomes incapable of fulfillment through no
fault of the Company and is not waived by the Company;
(c) By
Parent
or Buyer, if: (i) there has been a misrepresentation or breach of warranty
on the part of the Company in the representations and warranties contained
herein and such misrepresentation or breach of warranty, if curable, is not
cured within thirty days after written notice thereof from Parent or Buyer;
(ii)
the Company has committed a breach of any covenant imposed upon it hereunder
and
fails to cure such breach within thirty days after written notice thereof from
Parent or Buyer; or (iii) any condition to Parent’s or Buyer's obligations
under Section 5.3 becomes incapable of fulfillment through no fault of
Parent or Buyer and is not waived by Parent and Buyer; and
(d) By
the
Company or by Parent or Buyer, if any condition under Section 5.1 becomes
incapable of fulfillment through no fault of the party seeking termination
and
is not waived by the party seeking termination.
28
SECTION
7.3 Effect
of Termination; Right to Proceed.
Subject
to the provisions of Section 7.1 hereof, in the event that this Agreement shall
be terminated pursuant to Section 7.2, all further obligations of the parties
under this Agreement shall terminate without further liability of any party
hereunder except that: (i) the agreements contained in Section 4.2 shall
survive the termination hereof; and (ii) termination shall not preclude any
party from seeking relief against any other party for breach of Section 4.2.
In
the event that a condition precedent to its obligation is not met, nothing
contained herein shall be deemed to require any party to terminate this
Agreement, rather than to waive such condition precedent and proceed with the
Contemplated Transactions.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.1 Notices.
(a) Any
notice or other communication required or permitted hereunder shall be
in writing and shall be delivered personally by hand or by recognized overnight
courier, or mailed (by registered or certified mail, postage prepaid return
receipt requested) as follows:
If
to
Buyer or Parent, one copy to:
BICO,
Inc.
0
Xxxxxxx
Xxxx,
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxxxxx
Chairman
and Chief Executive Officer of Parent
President
of Buyer
With
a
copy to:
Law
Office of Xxxx X. Xxxxxxxxx
00000
Xxx
Xxxxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
X.
Xxxxxxxxx, Esq.
If
to the
Company, one copy to:
Vegas
Wireless Entertainment, Inc.
00
Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxx X0X 0X0
Attention: Xxxxx
Xxxxx
President
28
With
a
copy to:
Xxxxx
& Xxxxxxx LL
000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx
X. Xxxxxxx, Esq.
(b) Each
such
notice or other communication shall be effective when delivered at the address
specified in Section 8.1(a). Any party by notice given in accordance with
this Section 8.1 to the other parties may designate another address or
person for receipt of notices hereunder. Notices by a party may be given by
counsel to such party.
SECTION
8.2 Entire
Agreement.
This
Agreement (including the Schedules and Exhibits hereto) and the collateral
agreements executed in connection with the consummation
of the Contemplated Transactions contain the entire agreement among the
parties with
respect to the subject matter hereof and related transactions and supersede
all
prior agreements, written or oral, with respect thereto.
SECTION
8.3 Waivers
and Amendments; Non-Contractual Remedies; Preservation of
Remedies.
This
Agreement may be amended, superseded, cancelled, renewed or extended only by
a
written instrument signed by the Company, Parent and Buyer. The provisions
hereof may be waived in writing by the Company Parent or Buyer, as the case
may
be. Any such waiver shall be effective only to the extent specifically set
forth
in such writing. No failure or delay on the part of any party in exercising
any
right, power or privilege hereunder shall operate as a waiver thereof. Nor
shall
any waiver on the part of any party of any such right, power or privilege,
nor
any single or partial exercise of any such right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other such right,
power or privilege. Except as otherwise provided herein, the rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity.
SECTION
8.4 Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such State without regard to the conflict of laws rules
thereof.
SECTION
8.5 Consent
to Jurisdiction.
Each of
the parties hereto irrevocably and voluntarily submits to personal jurisdiction
in the State of New York and in the Federal courts in such state in any action
or proceeding arising out of or relating to this Agreement and agrees that
all
claims in respect of such action or proceeding may be heard and determined
in
any such court. If for any reason the Federal courts in such state will not
entertain
28
such
action or proceeding, then the parties hereto irrevocably and voluntarily submit
to personal jurisdiction in the state courts located in the State of New York
in
any action or proceeding arising out of or relating to this Agreement and agree
that all claims in respect of any action or proceeding
may be heard and determined in any such court. Each of the parties further
consents and agrees that such party may be served with process in the same
manner as a notice may be given under Section 8.1. The parties hereto agree
that any action or proceeding instituted by any of them against any other party
with respect to this Agreement will be instituted exclusively in the United
States District Court for the District of New York, or alternatively, in the
State courts located therein. The Company, Buyer and Parent irrevocably and
unconditionally waive and agree not to plead, to the fullest extent permitted
by
law, any objection that they may now or hereafter have to the laying of venue
or
the convenience of the forum of any action or proceeding with respect to this
Agreement in any such courts.
SECTION
8.6 Binding
Effect; No Assignment.
This
Agreement and all of its provisions, rights and obligations shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors, heirs and legal representatives. This Agreement may not be assigned
(including by operation of Law) by any party hereto without the express written
consent of Buyer (in the case of assignment by the Company) or the Company
(in the
case
of assignment by Buyer or Parent) and any purported assignment, unless so
consented to, shall be void and without effect.
SECTION
8.7 Exhibits.
All
Exhibits and Schedules attached hereto are hereby incorporated by reference
into, and made a part of, this Agreement.
SECTION
8.8 Severability.
If any
provision of this Agreement for any reason shall be held to be illegal, invalid
or unenforceable, such illegality shall not affect any other provision of this
Agreement, this Agreement shall be amended so as to enforce the illegal, invalid
or unenforceable provision to the maximum extent permitted by applicable law,
and the parties shall cooperate in good faith to further modify this Agreement
so as to preserve to the maximum extent possible the intended benefits to be
received by the parties.
SECTION
8.9 Counterparts.
The
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
SECTION
8.10 Third
Parties.
Except
as specifically set forth or referred to herein, nothing herein express or
implied is intended or shall be construed to confer upon or give to any person
other than the parties hereto and their permitted heirs, successors, assigns
and
legal representatives, any rights or remedies under or by reason of this
Agreement or the Contemplated Transactions.
28
ARTICLE
IX
DEFINITIONS
SECTION
9.1 Definitions.
The
following terms, as used herein, have the following meanings:
"Affiliate"
of any
person means any other person directly or indirectly through one or more
intermediary persons, controlling, controlled by or under common control with
such person.
"Agreement"
or
"this
Agreement"
shall
mean, and the words "herein",
"hereof"
and
"hereunder"
and
words of similar import shall refer to, this agreement as it from time to time
may be amended.
"Assets"
shall
mean all cash, instruments, properties, rights, interests and assets of every
kind, real, personal or mixed, tangible and intangible, used or usable in the
Business.
The
term
"audit"
or
"audited"
when
used in regard to financial statements shall mean an examination of the
financial statements by a firm of independent certified public accountants
in
accordance with generally accepted auditing standards for the purpose of
expressing an opinion thereon.
"Business"
shall
mean the ownership and operation of the business of the Company.
"Condition
of the Business"
shall
mean the financial condition, prospects or the results of operations of the
Business, the Assets or the Company.
"Contract"
shall
mean any contract, agreement, indenture, note, bond, lease, conditional sale
contract, mortgage, license, franchise, instrument, commitment or other binding
arrangement, whether written or oral.
The
term
"control",
with
respect to any person, shall mean the power to direct the management and
policies of such person, directly or indirectly, by or through stock ownership,
agency or otherwise, or pursuant to or in connection with an agreement,
arrangement or understanding (written or oral) with one or more other
persons by or through stock ownership, agency or otherwise; and the terms
"controlling"
and
"controlled"
shall
have meanings correlative to the foregoing.
"GAAP"
shall
mean generally accepted accounting principles in effect on the date hereof
(or,
in the case of any opinion rendered in connection with an audit, as of the
date
of the opinion) as set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States.
28
"Governmental
Bodies"
shall
mean any government, municipality or political subdivision thereof, whether
federal, state, local or foreign, or any governmental or quasi-governmental
agency, authority, board, bureau, commission, department, instrumentality or
public body, or any court, arbitrator, administrative tribunal or public
utility.
"knowledge"
with
respect to: (a) any individual shall mean actual knowledge of such
individual; and (b) any corporation shall mean the actual knowledge of the
directors and executive officers of such corporation; and "knows"
has a
correlative meaning. The terms "any Shareholder's knowledge," and "Shareholder's
knowledge," including any correlative meanings, shall mean the knowledge of
any
Shareholder.
"Laws"
shall
mean any law, statute, code, ordinance, rule, regulation or other requirement
of
any Governmental Bodies.
"Liability"
shall
mean any direct or indirect indebtedness, liability, assessment, claim, loss,
damage, deficiency, obligation or responsibility, fixed or unfixed, xxxxxx
or
inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute,
actual or potential, contingent or otherwise (including any liability under
any
guaranties, letters of credit, performance credits or with respect to insurance
loss accruals).
"Lien"
shall
mean any mortgage, lien (including mechanics, warehousemen, laborers and
landlords liens), claim, pledge, charge, security interest, preemptive right,
right of first refusal, option, judgment, title defect, covenant, restriction,
easement or encumbrance of any kind.
"person"
shall
mean an individual, corporation, partnership, joint venture, limited liability
company, association, trust, unincorporated organization or other entity,
including a government or political subdivision or an agency or instrumentality
thereof.
"Receivables"
shall
mean as of any date any trade accounts receivable, notes receivable, sales
representative advances and other miscellaneous receivables of the
Company.
"SEC"
means
the United States Securities and Exchange Commission.
"SEC
Documents"
means
all forms, notices, reports, schedules, statements, and other documents filed
by
Parent with the SEC within the three years from the Effective Time, whether
or
not constituting a "filed" document, and includes all proxy statements,
registration statements, amendments to registration statements, periodic reports
on Forms 10-KSB, 10-QSB, and 8-K, and annual and quarterly reports to
shareholders.
28
"Tax"
(including, with correlative meaning, the terms "Taxes"
and
"Taxable") shall
mean: (i)(A) any net income, gross income, gross receipts, sales, use, ad
valorem, transfer, transfer gains, franchise, profits, license, withholding,
payroll, employment, excise, severance, stamp, rent, recording, occupation,
premium, real or personal property, intangibles, environmental or windfall
profits tax, alternative or add-on minimum tax, customs duty or other tax,
fee,
duty, levy, impost, assessment or charge of any kind whatsoever (including
but
not limited to taxes assessed to real property and water and sewer rents
relating thereto), together with; (B) any interest and any penalty,
addition to tax or additional amount imposed by any Governmental Body (domestic
or foreign) (a "Tax
Authority") responsible
for the imposition of any such tax and interest on such penalties, additions
to
tax, fines or additional amounts, in each case, with respect to any party
hereto, the Business or the Assets (or the transfer thereof); (ii) any
liability for the payment of any amount of the type described in the immediately
preceding clause (i) as a result of a party hereto being a member of an
affiliated or combined group with any other person at any time on or prior
to
the date of Closing; and (iii) any liability of a party hereto for the
payment of any amounts of the type described in the immediately preceding clause
(i) as a result of a contractual obligation to indemnify any other
person.
"Tax
Return"
shall
mean any return or report (including elections, declarations, disclosures,
schedules, estimates and information returns) required to be supplied to
any Tax Authority.
"Transaction
Documents"
shall
mean, collectively, this Agreement, and each of the other agreements and
instruments to be executed and delivered by all or some of the parties hereto
in
connection with the consummation of the transactions contemplated
hereby.
SECTION
9.2 Interpretation.
Unless
the context otherwise requires, the terms defined in this Agreement shall be
applicable to both the singular and plural forms of any of the terms defined
herein. All accounting terms defined in this Agreement, and those accounting
terms used in this Agreement except as otherwise expressly provided herein,
shall have the meanings customarily given thereto in accordance with GAAP as
of
the date of the item in question. When a reference is made in this Agreement
to
Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The use of the neuter gender herein shall
be
deemed to include the masculine and feminine genders wherever necessary or
appropriate, the use of the masculine gender shall be deemed to include the
neuter and feminine genders and the use of the feminine gender shall be deemed
to include the neuter and masculine genders wherever necessary or appropriate.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
28
IN
WITNESS WHEREOF,
the
undersigned have executed this Stock Purchase and Recapitalization Agreement
as
of the date set forth above.
BUYER:
VEGAS
WIRELESS ACQUISITION, INC.
By:
_/s/
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
President
PARENT:
BICO,
INC.
By:
/s/
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
Chairman
and Chief Executive Officer
THE
COMPANY:
VEGAS
WIRELESS ENTERTAINMENT INC.
By:
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
President
PARENT
SHAREHOLDER:
_/s/
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
