1
Exhibit 2.1
AGREEMENT OF BUSINESS COMBINATION
BY STOCK EXCHANGE
AGREEMENT dated this 15th day of April, 1998, by and between B.G. BANKING
EQUIPMENT, INC., a Kentucky corporation having its principal place of business
at 0000 Xxxxxxx Xxxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000 ("Seller" or
the "Company"), a New York corporation, and MARITIME TRANSPORT & TECHNOLOGY,
INC., a New York corporation having its principal address at 0000 Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000 ("MTT" or "Maritime").
W I T N E S S E T H
WHEREAS, Seller is desirous of exchanging all of its capital stock for
stock in Maritime; and
WHEREAS, Maritime is desirous of acquiring all of the issued and
outstanding capital stock of the Seller;
IT IS NOW THEREFORE AGREED that in consideration of the mutual covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
1. Exchange of Stock.
1.1 Subject to the terms and conditions of this Agreement and the
performance by the parties hereto of their respective obligations hereunder,
Seller shall cause the Company to exchange, transfer, convey, assign and deliver
to MTT, and MTT shall receive, acquire and accept on the Closing Date (as such
term is hereinafter defined) all of the issued and outstanding capital stock of
Seller upon the terms and conditions set forth herein after.
1.2 The transfer of the Stock as herein provided shall be effected by
delivery of stock certificates representing all of the issued and outstanding
securities of the Seller, along with stock powers executed by all shareholders
of the Seller. Company covenants that (i) it will, at any time and from time to
time after the Closing Date, execute and deliver such other instruments of
transfer and conveyance and do all such further acts and things as may be
reasonably requested by MTT to transfer and deliver to MTT or to aid and assist
MTT in collecting and reducing to possession, any and all of the Assets; (ii)
MTT, after the Closing Date, shall have the right and authority to collect, for
the account of MTT, all checks, notes and other evidences of indebtedness or
obligations to make payment of money and other items which shall be transferred
to MTT as provided herein and to endorse with the name of Company any such
checks, notes or other instruments received after the Closing Date; and (iii)
Company will transfer and deliver to MTT any cash or other property that Company
may receive after the Closing Date in respect of or arising out of the business
conducted by Company. After the Closing Date, at reasonable times and upon
reasonable
1
2
notice, Company shall have access to the books and records conveyed to MTT
hereunder, and MTT shall have access to any minute books, stock books and
similar corporate records retained by Company.
1.3 Company covenants that between the date hereof and the Closing Date
and, if reasonably requested by MTT, after the Closing Date, Seller shall use
its best efforts to obtain the consent of any parties to any contracts,
licenses, leases, commitments, sales orders, purchase orders or other
agreements being assigned by Company to MTT hereunder as shall be reasonable
requested by MTT. If any such required consent is not obtained, this agreement
shall not constitute an agreement to assign the instrument relating thereto,
however Seller shall cooperate with MTT in any reasonable arrangement to
provide for MTT the benefits under any such contract, license, lease,
commitment, sales order, purchase order or other agreement, including
enforcement, at the cost and for the benefit of MTT, of any and all rights of
Company against the other party thereto arising out of the breach or
cancellation by such party.
2. Assumption of Liabilities. MTT assumes all liabilities of Company set
forth on the attached financial statement of the Seller attached hereto as
Exhibit A which the Seller represents and warrants to have not appreciably
changed from the date of issuance of said financial statement until the date
of Closing. If any material increase in total liabilities has occurred the
Seller will disclose the same in writing to MTT at or prior to closing.
3. Closing. The Closing hereunder (the "Closing") shall take place at
the offices of Xxxxx X. Xxxxxx, Esq., 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 or
at such other place as may be agreed by MTT and Company (the "Closing Date").
4. Exchange Terms; Allocation.
4.1 In consideration of the exchange and transfer of the Assets herein
contemplated, on the Closing Date, MTT shall deliver to Seller's shareholders,
as set forth on Exhibit B, certificates for 11,282,250 shares of Maritime's
sole class of common stock on the date of closing.
4.2 Upon the conclusion of this transaction, MTT represents that the
total number of issued and outstanding shares of MTT shall be no greater than
4,000,000 and that no other shares of any class or kind of MTT shall have been
issued.
5. Representations and Warranties of Seller. Seller hereby represents
and warrants as follows:
5.1 Company is a corporation duly organized, validly existing and in good
standing under the laws of Kentucky and has full power and authority to own its
properties and carry on its business as and in the places where such properties
are now owned or such business
2
3
is now being conducted. On or before closing, Seller shall establish to the
satisfaction of MTT that it has title to the Assets set forth on its financial
statements. Complete and correct copies of the Certificate of Incorporation of
Company and all amendments thereto, certified in each case by the Secretary of
State of Kentucky, and of the By-Laws of Company, and all amendments thereto,
certified by the Secretary of Company, have been or will be delivered to MTT on
or prior to the Closing Date by Company. Company is duly qualified to do
business and is in good standing in all jurisdictions in which such
qualification is necessary because of the character of the properties owned by
it or the nature of its activities. Company has taken no action and has not
failed to take any action, which action or failure would preclude or prevent
MTT from conducting the business of Company in the manner heretofore conducted.
5.2 Company has obtained written approval of over two-thirds of its
stockholders and is fully empowered by them to enter into this transaction.
5.3 Seller has full power and authority, corporate and otherwise, to enter
into this agreement on behalf of the Company and to cause the Company to assume
and perform its, his or her obligations hereunder. The execution and delivery of
this agreement and the performance by Company of its obligations hereunder have
been duly authorized by the Board of Directors of Company and no further action
or approval, corporate or otherwise, is required in order to constitute this
agreement as a binding and enforceable obligation of Company. The execution and
delivery of this agreement and the performance by Company of its obligations
hereunder do not and will not violate any provision of the Certificate of
Incorporation or By-Laws of Company and do not and will not conflict with or
result in any breach of any condition or provision of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the Assets by reason of the terms of any contract,
mortgage, lien, lease, agreement indenture, instrument, judgment or decree to
which Company is a party or which is or purports to be binding upon Company or
which affects or purports to affect any of the Assets.
5.4 No action, approval, consent or authorization, including but not
limited to any action, approval, consent or authorization by any governmental
or quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to Company in order to constitute this agreement as a binding and
enforceable obligation of Company in accordance with its terms.
6. Representations and Warranties of MTT. MTT hereby represents and
warrants that on the closing date all of the following will be true:
3
4
6.1 MTT is a corporation duly organized, validly existing and in good
standing under the laws of New York. MTT is not presently conducting any
business in any location. Complete and correct copies of the Certificate of
incorporation of MTT and all amendments thereto, certified in each case by the
Secretary of State of the State of New York, and of the By-Laws of MTT, and all
amendments thereto, certified by the Secretary of MTT, have been or will be
delivered to Company on or prior to the Closing Date by MTT. MTT will present at
closing a Certificate of good standing or its equivalent. MTT has taken no
action and has not failed to take any action, which action or failure would
preclude or prevent Company from conducting the business of Company in the
manner heretofore conducted.
6.2 MTT has not authorized or outstanding securities other than its common
stock, $.001 par value per share (the "Common Stock"), which consists of
80,000,000 authorized shares of which not more than 4,000,000 shares are
currently outstanding. All outstanding Common stock is duly authorized, validly
issued, fully-paid and non-assessable (except for such statutory and
constitutional obligations as may be imposed notwithstanding full payment for
and valid issuance of such shares), and there are no presently issued or
outstanding securities of MTT convertible into common stock nor are there any
outstanding options, warrants, agreements, rights or commitments of any kind
relating to the authorized but unissued Common Stock. All transfer taxes, if
any, with respect to transfers of securities of MTT made prior to the date
hereof have been paid. All of the common stock is owned, both beneficially and
of record, free of any security interests, liens, pledges, claims, charges,
escrows encumbrances, options, rights of first refusal, mortgages, indentures,
security agreements or other contracts (whether or not relating in any way to
credit or the borrowing of money) and the designated owner thereof has the
unrestricted right to vote such Common Stock.
6.3 MTT's Board of Director's will recommend to all shareholders, as soon
as practicable after receipt of Company's certified financial statements,
approval of the transaction contemplated herein and obtain written consent to
take such acts and actions as may be deemed necessary or advisable by counsel to
Company to fully empower MTT and its Board of Directors to enter into and
consummate this transaction.
6.4 MTT has full power and authority, corporate and otherwise, to enter
into this agreement and to assume and perform its, his or her obligations
hereunder. The execution and delivery of this agreement and the performance by
MTT of its obligations hereunder have been duly authorized by the Board of
Directors of MTT and no further action or approval is required in order to
constitute this agreement as a binding and enforceable obligation of MTT.
Written consent to this transaction from the majority shareholders of MTT will
be provided at Closing. Further, MTT will provide an
4
5
opinion of counsel at closing opining to the legality of the issuance of the
shares, and the corporate status of MTT. The execution and delivery of this
agreement and the performance by MTT of its obligations hereunder do not and
will not violate any provision of the Certificate of Incorporation or By-Laws of
MTT and do not and will not conflict with or result in any breach of any
condition or provision of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of its assets
by reason of the terms of any contract, mortgage, lien, lease, agreement,
instrument, judgment or decree to which MTT is a party or which is or purports
to be binding upon Company or which affects or purports to affect any of its
assets.
6.5 No action, approval, consent or authorization, including but not
limited to any action, approval, consent or authorization by any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to MTT in order to constitute this agreement as a binding and
enforceable obligation of MTT in accordance with its terms.
6.6 Since the date of the last financial statement attached hereto as
Exhibit A, there have been no adverse changes in the financial condition,
assets, liabilities, properties or business of MTT and MTT has not:
6.7.1 authorized, issued, sold or converted any securities, or entered
into any agreement with respect thereto;
6.7.2 declared, set aside or made any dividend or other distribution or
purchased, redeemed or reclassified any of their capital stock or effected any
stock split, stock dividend, exchange or recapitalization or entered into any
agreement in respect of the foregoing;
6.7.3 incurred any damage, destruction or similar loss, whether or not
covered by insurance, materially affecting their businesses or properties;
6.7.4 sold, assigned or transferred, any of their tangible assets or any
patent, trademark, tradename, copyright, license, franchise, design or other
intangible assets or properties;
6.7.5 mortgaged, pledged, granted or suffered to exist any lien or other
encumbrance or charge on any of their assets or properties, tangible or
intangible;
6.7.6 waived any rights of material value or canceled, discharged,
satisfied or paid any material debts or claims;
6.7.7 incurred any obligation or liability (absolute or contingent,
liquidated or unliquidated, xxxxxx or inchoate);
5
6
6.7.8 leased or effected any transfer of any of their assets or
properties;
6.7.9 entered into, made any amendment of or terminated any lease,
material contract or license;
6.7.10 amended their Certificate of Incorporation or By-Laws;
6.7.11 effected any change in their accounting practices, procedures or
methods;
6.7.12 became obligated to make any payment to any shareholder of MTT in
any capacity, or entered into any transaction of any nature with any shareholder
of MTT in any capacity;
6.7.13 increased the compensation payable to any of their directors,
officers or employees or became obligated to increase any such compensation;
6.7.14 entered into any transaction other than in the ordinary course of
business, or changed in any way any of their business policies or practices.
6.8 MTT is not a party to or has any contract or commitment of any kind or
nature whatsoever, written or oral, formal or informal, including, without
limitation, any lease, license, franchise, employment, maintenance, consultant
or commission agreement, pension, profit-sharing, bonus, stock purchase, stock
option, retirement, severance, hospitalization, accident, insurance or other
plan or arrangement involving employee benefits, contract with any labor union
or contract for services, materials, supplies, merchandise, inventory or
equipment, for the sale or purchase of any of its services, products or assets,
for the borrowing of money or for a line or letter of credit, with any current
or former director, officer or employee of MTT which will be in effect on the
Closing Date, with any government or agency thereof, pursuant to which its right
to compete with any entity or person in the conduct of its business is
restrained or restricted for any reason or in any way, guaranteeing the
performance, liabilities or obligations of any Entity or person, for capital
improvements or expenditures or with any contractor or subcontractor for in
excess of $100.00, for charitable contributions aggregating in excess of
$100.00, or involving in excess of $100.00 in cash over its term (including any
periods covered by any options to renew by any party).
6.9 MTT has no liabilities except as shown on its financial statements, no
contracts or other obligations whatsoever including any contingent liabilities.
6
7
7. Financial Statements.
Company shall deliver to MTT, as soon after the Closing Date as
practicable, but in no event more than 30 days after the Closing Date,
certified financial statements substantially confirming the representations
made to date regarding Company's financial condition, obligations and
commitments. These financial statements will be in a form acceptable to the
United States Securities and Exchange Commission for consolidation with MTT's
financial statements and will be in compliance with generally accepted
accounting principles and Regulation SX promulgated under the Securities Act
of 1933, as amended, and as it applies to corporations which have registered
securities upon Form 10 or Form 10SB under the 1934 Securities Exchange Act.
After closing, the new management represents that it will timely file all forms
required by the United States Securities and Exchange Commission and shall
promptly file for listing on NASDAQ as soon as NASDAQ listing requirements are
met.
8. Miscellaneous.
a) This Agreement shall constitute the entire agreement of the parties
hereto and may not be amended, except by written consent of the parties hereto
in writing executed by them.
b) This Agreement shall be construed according to the laws of the State
of New York and shall be enforceable in any court of competent jurisdiction
located in the State of New York.
c) This Agreement shall inure to the benefit of the parties and their
successors in interest, if any, but shall not otherwise be assignable.
d) Where in this Agreement one gender or the other is used, or the
singular or the plural is used, and if to effect the intent of the parties
hereto the use of the other gender or number is needed then it is understood
that such gender or both or such number or both is implied.
e) This Agreement may be executed in counterparts and receipt of
facsimile transmission of signatures shall be sufficient to effect acceptance
of this Agreement, although the parties hereto agree to submit within a
reasonable time duplicate original signed copies of this Agreement to each
other.
9. Indemnification.
Each party to this Agreement shall indemnify and hold harmless each other
party at all times after the date of closing against and in respect of any
liability, damage or deficiency, all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses, including attorney's fees incident
to any of the
7
8
foregoing, resulting from any misrepresentation, breach of covenant or warranty
for non-fulfillment of any agreement on the part of such party under this
Agreement, or from any misrepresentation in or omission from any certificate
furnished or to be furnished to a party hereunder. Subject to the terms of this
Agreement, the defaulting party shall reimburse the other party or parties on
demand for any reasonable payments made by said parties at any time after the
date of closing, in respect to any liability or claim to which the foregoing
indemnity relates, if such payment is made after reasonable notice to the other
party to defend or satisfy the same, and such party failed to defend or satisfy
the same.
10. Expenses. Seller shall pay all expenses of the transaction.
IN WITNESS WHEREOF THE PARTIES HERETO, HAVING BEEN DULY AUTHORIZED BY THEIR
RESPECTIVE BOARDS OF DIRECTORS, HAVE SET THEIR HANDS AND SEALS ON THE DATE
FIRST ABOVE WRITTEN.
MARITIME TRANSPORT & TECHNOLOGY, INC. B.G. BANKING EQUIPMENT, INC.
BY: /s/ Xxxx X. Xxxxx BY: /s/ Xxxx X. Xxxxx
------------------------------- ----------------------------
Xxxx X. Xxxxx Xxxx X. Xxxxx
PRESIDENT PRESIDENT
8
