EXHIBIT 2
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into this 31st day of March, 1999 by and among AUTOMOTIVE TECHNOLOGIES
INC., a Colorado corporation (hereinafter referred to as "ATI"), INTEGRATED
HOMES OF FLORIDA, INC., a Florida corporation (hereinafter referred to as the
"Company"), and the shareholders of the Company (hereinafter referred to as the
"Shareholders").
R E C I T A L S:
A. The Shareholders own all of the issued and outstanding shares of the
capital stock of the Company.
B. ATI is willing to acquire all of the issued and outstanding capital
stock of the Company, making the Company a wholly-owned subsidiary of ATI, and
the Shareholders desire to exchange all of their shares of the Company's capital
stock for shares of ATI's authorized but unissued shares of Common Stock as
hereinafter provided.
C. It is the intention of the parties hereto that: (i) ATI shall
acquire all of the issued and outstanding capital stock of the Company in
exchange solely for the number of shares of ATI's authorized but unissued Common
Stock set forth below (the "Exchange"); (ii) the Exchange shall qualify as a
tax-free reorganization under Section 368(a)(B) of the Internal Revenue Code of
1986, as amended, and related sections thereunder; and (iii) the Exchange shall
qualify as a transaction in securities exempt from registration or qualification
under the Securities Act of 1933 as amended, and under the applicable securities
laws of the state of jurisdiction where the Shareholders reside.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
a. EXCHANGE OF SHARES. ATI and the Shareholders hereby agree that the
Shareholders shall, on the Closing Date (as hereinafter defined), exchange all
of their issued and outstanding shares of the capital stock of the Company (the
"Shares") for the shares of ATI Common Stock, $.001 par value (the "ATI Shares")
set forth in Exhibit A hereto. The number of ATI Shares which the Shareholders
will be entitled to receive in the Exchange is set forth in Exhibit A hereto.
b. DELIVERY OF SHARES. On the Closing Date, the Shareholders will
deliver to ATI the certificates representing the Shares, duly endorsed (or with
executed stock powers) so as to make ATI the sole owner thereof. Simultaneously,
ATI will deliver certificates representing the ATI Shares to the Shareholders.
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c. TAX-FREE REORGANIZATION. The Shareholders acknowledge that, in the
event that capital stock of the Company representing at least 80% in interest of
the Company is not exchanged for shares of ATI Voting Capital Stock pursuant
hereto, the Exchange will not qualify as a tax-free reorganization under Section
368(a)(B) of the Internal Revenue Code of 1986, as amended.
d. FAIRNESS OPINION. Consummation of this Agreement is not subject to a
fairness opinion.
e. INVESTMENT INTENT. The ATI Shares have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be resold unless the
ATI Shares are registered under the Act or an exemption from such registration
is available. The Shareholders represent and warrant that they are acquiring the
ATI Shares for their own account, for investment, and not with a view to the
sale or distribution of the ATI Shares. Each certificate representing the ATI
Shares will have a legend thereon incorporating language as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). The shares have been acquired for investment and may
not be sold or transferred in the absence of an effective
Registration Statement for the shares under the Act unless in
the opinion of counsel satisfactory to the Company,
registration is not required under the Act."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SHAREHOLDERS
The Company and the Shareholders (to the best of Shareholders'
knowledge and belief as to the Company, except with respect to subsections 2.a.
and 2.n hereafter as to which the representation and warranty shall be
unqualified as to the Shareholders' interest) hereby represent and warrant as
follows:
a. ORGANIZATION AND GOOD STANDING; OWNERSHIP OF SHARES. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of Florida, and is entitled to own or lease its properties and to carry on
its business as and in the places where such properties are now owned, leased or
operated and such business is now conducted. The Company is duly licensed or
qualified and in good standing as a foreign corporation where the character of
the properties owned by it or the nature of the business transacted by it make
such licenses or qualifications necessary. The company does not have any
subsidiaries. There are no outstanding subscriptions, rights, options, warrants
or other agreements obligating either the Company or the Shareholders to issue,
sell or transfer any stock or other securities of the Company.
b. OWNERSHIP OF SHARES. The Shareholders are the owners of record and
beneficially of all of the shares of capital stock of the Company, all of which
Shares are free and clear of all rights,
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claims, liens and encumbrances, and have not been sold, pledged, assigned or
otherwise transferred except pursuant to this Agreement.
c. FINANCIAL STATEMENTS; BOOKS AND RECORDS. There has been previously
delivered to ATI the unaudited balance sheet of the Company as at December 31,
1998 (the "Balance Sheet") and the related unaudited statements of operations
for the periods then ended (the "Financial Statements"). The Financial
Statements are true and accurate and fairly represent the financial position of
the Company as at such dates and the results of its operations for the periods
then ended, and have been prepared in accordance with generally accepted
accounting principles consistently applied.
d. NO MATERIAL ADVERSE CHANGES. Since the date of the Balance Sheet
there has not been:
i. any material adverse change in the assets, operations, conditions
(financial or otherwise) or prospective business of the Company;
ii. any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of the
Company, whether or not covered by insurance;
iii. any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of the Company's
capital stock;
iv. any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by the Company of any properties or assets;
or
v. adoption of any pension, profit sharing, retirement, stock bonus,
stock option or similar plan or arrangement.
e. TAXES. Except as set forth on Schedule 2.5 the Company has prepared
and filed all appropriate federal, state and local tax returns for all periods
prior to and through the date hereof for which any such returns have been
required to be filed by it and has paid all taxes shown to be due by said
returns or on any assessments received by it or has made adequate provision for
the payment thereof.
f. COMPLIANCE WITH LAWS. The Company has complied with all federal,
state, country and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect the business
of the Company.
g. NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transaction contemplated hereby will not:
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i. violate any provision of the Articles of Incorporation or By-Laws
of the Company;
ii. violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Company is a party or by or to which it or any of its assets or
properties may be bound or subject;
iii. violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding upon,
the Company, or upon the properties or business of the Company; or
iv. violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein which could have a materially
adverse effect on the business or operations of the Company.
h. ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Company. There is no action, suit
or claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
pending or threatened against or involving the Company or any of its properties
or assets. Except as set forth on Schedule 2.8, there is no fact, event or
circumstances that may give rise to any suit, action, claim, investigation or
proceeding.
i. BROKERS OR FINDERS. No broker's or finder's Fee will be payable by
the Company in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by the Company or
the Shareholders.
j. REAL ESTATE. Except as set forth on Schedule 2.10, the Company
neither owns real property nor is a party to any leasehold agreement.
k. TANGIBLE ASSETS. The Company has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by the Company, any related capitalized items or
other tangible property material to the business of the Company (the "Tangible
Assets"). The Company holds all rights, title and interest in all the tangible
Assets owned by it on the Balance Sheet or acquired by it after the date of the
Balance Sheet, free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts or any other encumbrances except as set
forth on Schedule 2.11. All of the Tangible Assets are in good operating
condition and repair and are usable in the ordinary course of business of the
Company and conform to all applicable laws, ordinances and governmental orders,
rules and regulations relating to their construction and operation.
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l. LIABILITIES. The Company does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, the Company will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Balance Sheet, except for Liabilities incurred in the ordinary course of
business.
m. OPERATIONS OF THE COMPANY. Except as set forth on Schedule 2.13,
from the date of the Balance Sheet and through the Closing Date hereof the
Company has not and will not have:
i. incurred any indebtedness for borrowed money;
ii. declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
iii. made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
iv. except in the ordinary course of business, incurred or assumed
any indebtedness or liability (whether or not currently due and payable);
v. disposed of any assets of the Company except in the ordinary
course of business;
vi. materially increased the annual level of compensation of any
executive employee of the Company;
vii. increased, terminated, amended or otherwise modified any plan for
the benefit of employees of the Company;
viii. issued any equity securities or right to acquire such equity
securities; or
ix. except in the ordinary course of business, entered into or
modified any contract, agreement or transaction.
n. CAPITALIZATION. The authorized capital stock of the Company consists
of 800,000 shares of common stock having a par value of $2.50 per share of which
800,000 shares are presently issued and outstanding. Neither the Company nor the
Shareholders has granted, issued or agreed
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to grant, issue or make available any warrants, options, subscription rights or
any other commitments of any character relating to the issued or unissued shares
of capital stock of the Company.
o. FULL DISCLOSURE. No representation or warranty by the Company or the
Shareholders in this Agreement or in any document or schedule to be delivered by
them pursuant hereto, and no written statement, certificate or instrument
furnished or to be furnished to ATI pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any fact necessary to make any statement herein or therein not materially
misleading or necessary to a complete and correct presentation of all material
aspects of the businesses of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF ATI
ATI hereby represents and warrants to the Company and the Shareholders
as follows:
a. ORGANIZATION AND GOOD STANDING. ATI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
and is entitled to own or lease its properties and to carry on its business as
and in the places where such properties are now owned, leased, or operated and
such business is now conducted. The authorized capital stock of ATI consists of
50,000,000 shares of Common Stock. Subsequent to the execution hereof, ATI
intends to (a) file an amendment to its Certificate of Incorporation which will
change its corporate name to "Integrated Homes, Inc" pursuant to a License
Agreement (as hereinafter defined) entered into by and between ATI and the
Company; (b) conduct a best-efforts offering for $60,000 under Rule 504
promulgated under Regulation D of the Act (the "Offering"); and (c) conduct a
best-efforts offering for $500,000 under Rule 504. ATI is duly licensed or
qualified and in good standing as a foreign corporation where the character of
the properties owned by ATI or the nature of the business transacted by it make
such license or qualification necessary.
b. THE ATI SHARES. The ATI Shares to be issued to the Shareholders have
been or will have been duly authorized by all necessary corporate and
shareholder actions and, when so issued in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable.
c. FINANCIAL STATEMENTS: BOOKS AND RECORDS. There will be delivered to
the Company, the unaudited balance sheet of ATI as at December 31, 1998 (the
"Balance Sheet") and the related unaudited statements of operations for the
periods then ended (the "Financial Statements"). The Financial Statements are
true and accurate and fairly represent the financial position of the Company as
at such dates and the results of its operations for the periods then ended, and
have been prepared in accordance with generally accepted accounting principles
consistently applied.
d. NO MATERIAL ADVERSE CHANGES. Since the date of the ATI Balance
Sheet, there has not been:
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i. any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of ATI;
ii. any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of ATI,
whether or not covered by insurance;
iii. any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of ATI's capital
stock;
iv. any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by ATI of any properties or assets; or
v. adoption of any pension, profit sharing, retirement, stock bonus,
stock option or similar plan or arrangement.
e. COMPLIANCE WITH LAWS. ATI has complied with all federal, state,
country and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decree applicable to their businesses which, if not
complied with, would materially and adversely affect the business of ATI or the
trading market for the shares of ATI's Common Stock.
f. NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
i. violate any provision of the Articles of Incorporation or By-Laws
of ATI;
ii. violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which ATI is a party or by or to which it or any of its assets or properties may
be bound or subject;
iii. violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding upon,
ATI or upon the securities properties or business of ATI; or
iv. violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein.
g. ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving ATI. There is no action, suit or claim
or legal, administrative or arbitral proceeding or (whether or not the defense
thereof or Liabilities in respect thereof are covered by insurance) pending or
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threatened against or involving ATI or any of its properties or assets. Except
as set forth on Schedule 3.7, there is no fact, event or circumstances that may
give rise to any suit, action, claim, investigation or proceeding.
h. BROKERS OR FINDERS. No broker's or finder's fee will be payable by
ATI in connection with the transactions contemplated by this Agreement, nor will
any such fee be incurred as a result of any actions by ATI.
i. LIABILITIES. ATI does not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including without limitation, any
liability on account of taxes, any other governmental charge or lawsuit (all of
the foregoing collectively defined to as "Liabilities"), which were not fully,
fairly and adequately reflected on the ATI Balance Sheet. As of the Closing
Date, ATI will not have any Liabilities, other than Liabilities fully and
adequately reflected on the ATI Balance Sheet, except for Liabilities incurred
in the ordinary course of business.
j. OPERATIONS OF ATI. Except as set forth on Schedule 3.10 since the
date of the ATI Balance Sheet and through the Closing Date hereof, ATI has not
and will not have:
i. incurred any indebtedness or borrowed money;
ii. declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
iii. made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any loan
or advance otherwise than in the ordinary course of business;
iv. except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
v. disposed of any assets of ATI except in the ordinary course of
business;
vi. materially increased the annual level of compensation of any
executive employee of ATI;
vii. increased, terminated, amended or otherwise modified any plan for
the benefit of employees of ATI; or
viii. except in the ordinary course of business, entered into or
modified any a contract, agreement or transaction.
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k. AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. ATI has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully its obligations hereunder. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of ATI enforcement in accordance with its terms, except as may be
limited by bankruptcy, moratorium, insolvency or other similar laws generally
affecting the enforcement of creditors' rights. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
the performance by ATI of this Agreement, in accordance with its respective
terms and conditions will not:
i. require the approval or consent of any governmental or regulatory
body, the Shareholders of ATI, or the approval or consent of any other person;
ii. conflict with or result in any breach or violation of any of the
terms and conditions of or constitute (or with any notice or lapse of time or
both would constitute) a breach default violation under, of the Articles and
Bylaws of ATI, any order, judgment, or decree applicable to ATI, or any
instrument, contract or other agreement to which ATI is a party or by or to
which ATI is bound or subject; or
iii. result in the creation of any lien or other encumbrance on the
assets or properties of ATI.
l. FULL DISCLOSURE. No representation or warranty by ATI in this
Agreement or in any document or schedule to be delivered by it pursuant hereto,
and no written statement, certificate or instrument furnished or to be furnished
to the Company or the Shareholders pursuant hereto or in connection with the
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to a complete and correct presentation of all material aspects of the business
of ATI. The foregoing notwithstanding, all of the aforementioned representations
and warranties are qualified to the extent that any of the companies or
businesses acquired or to be acquired pursuant to the Company's acquisition
program may include events, conditions or circumstances involving matters
contemplated by such representations and warranties the disclosure of which will
not be made pursuant to this Agreement.
m. SHARES CURRENTLY TRADING. The ATI Shares are currently trading and
quoted on the OTC Bulletin Board Service. ATI has satisfied all applicable
requirements of the Securities and Exchange Commission Rule 15c2-11 and the
filing requirements of the National Association of Securities Dealers ("NASD").
ATI is currently in good standing with the NASD and up to date with its 15c2-11
filings. ATI is not aware of any stops, pending stops, de-listings, pending
de-listings or any other situation which may adversely effect the trading of the
ATI Shares on the OTC Bulletin Board Service.
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SECTION 4. COVENANTS
a. CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing
Date, the parties acknowledge that they have been entitled, through their
employees and representatives to make such investigation of the assets,
properties, business and operations, books, records and financial condition of
the other as they each may reasonably require. No investigation by a party
hereto shall, however, diminish or waive in any way any of the representations,
warranties, covenants or agreements of the other party under this Agreement.
b. EXPENSES. Each party hereto agrees to pay its own costs and expenses
incurred in negotiating this Agreement and consummating the transactions
described herein.
c. FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing, including, without limitation, the
execution and delivery of any documents or other papers, the execution and
delivery of which are necessary or appropriate to the Closing.
d. CONFIDENTIALITY. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith for
a period of two (2) years from the date hereof; provided, however, such
obligation shall not apply to information which:
i. at the time of disclosure was public knowledge;
ii. after the time of disclosure becomes public knowledge (except due
to the action of the receiving party); or
iii. the receiving party had within its possession at the time of
disclosure.
e. STOCK CERTIFICATES. At the Closing, the Shareholders shall have
delivered the certificates representing the Shares duly endorsed (or with
executed stock powers) so as to make ATI the sole owner thereof. Such
certificates shall contain a restrictive legend advising that the shares are
subject to dilution under Section 4.h. At such Closing, ATI shall issue to
Shareholders the ATI Shares as applicable.
f. INVESTMENT LETTERS. The Shareholders shall have delivered to ATI an
"Investment Letter" agreeing that the Shares are being acquired for investment
purposes only and not with the view to public resale or distribution.
g. AMENDMENT TO CERTIFICATE OF INCORPORATION. Subsequent to the
execution of this Agreement and prior to the Closing hereof, ATI will file an
Amendment to its Certificate of
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Incorporation to change its corporate name to "Integrated Homes, Inc." subject
to the terms of the License Agreement (as hereinafter defined) entered into by
and between ATI and the Company.
h. ADDITIONAL TRANSFER OF ATI SHARES. If within one year of the date of
this Agreement ATI fails to successfully complete its private offerings, which
offerings will effectively generate $2 million for the operations of the Company
and not less than $1,600,000 in working capital, then ATI will authorize and
issue for par value such shares as to give the Shareholders at least 51%
ownership of ATI.
i. EMPLOYMENT AGREEMENTS. On the Closing Date, ATI shall enter into an
Employment Agreement with Xxxxx Xxxx for a term through February 2004 and with
an annual salary of $110,000 with annual increases as determined by the Board of
Directors of ATI; ATI shall also enter into an Employment Agreement with Xxxxxx
Xxxxxxxx for a term through February 2004 and with an annual salary of $102,500
with annual increases as determined by the Board of Directors.
j. VOTING TRUST AGREEMENT. On the Closing Date, ATI shall enter into a
Voting Trust Agreement with the Shareholders governing the management of ATI and
the Company.
SECTION 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF ATI
Notwithstanding any right of the Company and the Shareholders fully to
investigate the affairs of ATI, the former shall have the right to rely fully
upon the representations, warranties, covenants and agreements of ATI contained
in this Agreement or in any document delivered by ATI or any of its
representatives, in connection with the transactions contemplated by this
Agreement. All such representations, warranties, covenants and agreements shall
survive the execution and delivery hereof and the Closing Date hereunder for one
year following the Closing.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE SHAREHOLDERS
Notwithstanding any right of ATI fully to investigate the affairs of
the Company, ATI has the right to rely fully upon the representations,
warranties, covenants and agreements of the Company and the Shareholders
contained in this Agreement or in any document delivered to ATI by the latter or
any of their representatives in connection with the transactions contemplated by
this Agreement. All such representations, warranties, covenants and agreements
shall survive the execution and delivery hereof and the Closing Date hereunder
for three (3) months following the Closing.
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SECTION 7. INDEMNIFICATION
a. OBLIGATION OF ATI TO INDEMNIFY. Subject to the limitations on the
survival of representations and warranties contained in Section 5, ATI hereby
agrees to indemnify, defend and hold harmless the Company and the Shareholders
from and against any losses, liabilities, damages, deficiencies, costs or
expenses (including interest, penalties and reasonable attorney's fees and
disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any beach of any representation, warranty, covenant or
agreement of ATI contained in this Agreement or in any document or other writing
delivered pursuant to this Agreement.
b. OBLIGATION OF THE COMPANY AND THE SHAREHOLDERS TO INDEMNIFY. Subject
to the limitations on the survival of representations and warranties contained
in Section 6, the Company and the Shareholders agree to indemnify, defend and
hold harmless ATI from and against any loss, based upon, arising out of or
otherwise due to any inaccuracy in or any breach of any representation,
warranty, covenant or agreement made by any of them and contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
SECTION 8. THE CLOSING
The Closing shall take place upon initiation of the Offering and
completion of the name change. At the Closing, the parties shall provide each
other with such documents as may be necessary or appropriate in order to
consummate the transactions contemplated hereby including evidence of due
authorization of the Agreement and the transactions contemplated hereby.
ATI shall have complied in all material respects with all of its
agreements and covenants contained herein required to be complied with at or
prior to the Closing, and all of the representations and warranties of ATI
contained herein shall be true in all material respects on and as of the Closing
with the same effect as though made on and as of the Closing. The Shareholders
shall have received a certificate of ATI, dated as of the Closing and signed by
an officer of ATI, certifying as to the fulfillment of the conditions set forth
in this Section 8.
SECTION 9. MISCELLANEOUS
a. WAIVERS. The waiver of a breach of this Agreement or the failure of
any party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
b. AMENDMENT. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
c. ASSIGNMENT. This Agreement is not assignable except by operation of
law.
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d. NOTICES. Until otherwise specified in writing, the mailing addresses
of both parties of this Agreement shall be as follows:
The Company: INTEGRATED HOMES OF FLORIDA, INC.
0000-X Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Shareholders: c/o Xxxxx Xxxx
0000-X Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
with a copy to: Xxxxxx & Zeder, P.A.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
with a copy to: Xxxxxxx & Xxxxxx, P.A.
Peninsular Executive Center, Suite 270
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
ATI: AUTOMOTIVE TECHNOLOGIES INC.
x/x X. Xxxxxx Xxxxxxxxx
Xxxxxx Financial Center
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor. Any party may send any notice hereunder to the
intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
ordinary mail or electronic mail), but no such notice shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices hereunder are to be
delivered by giving the other party notice in the manner herein set forth.
e. GOVERNING LAW. This Agreement shall be construed, and the legal
relations of the parties determined, in accordance with the laws of the State of
Florida, thereby precluding any choice of law rules which may direct the
applicable of the laws of any other jurisdiction.
13
f. LITIGATION; PREVAILING PARTY. In the event of any arbitration or
litigation, including appeals, with regard to this Agreement, the prevailing
party shall be entitled to recover from the non-prevailing party all reasonable
fees, costs, and expenses of counsel (at pre-trial, trial and appellate levels).
g. PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other Party.
h. ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of the transaction contemplated herein contain the entire agreement
among the parties with respect to the purchase and issuance of the Shares and
the ATI Shares and related transactions, and supersede all prior agreements,
written or oral.
i. HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
j. SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
k. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
14
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
AUTOMOTIVE TECHNOLOGIES INC.
By: /s/ XXXXXXX XXXXX
------------------------------------
Xxxxxxx Xxxxx, Chairman
INTEGRATED HOMES OF FLORIDA, INC.
By: /s/ XXXXX XXXX
-------------------------------------
Xxxxx Xxxx, President & CEO
SHAREHOLDERS
/s/ XXXXX XXXX
----------------------------------------
XXXXX XXXX
/s/ XXXXXX XXXXXXXX
----------------------------------------
XXXXXX XXXXXXXX
15
EXHIBIT A
EXCHANGE WITH INTEGRATED HOMES OF FLORIDA, INC.
Shares of
Name of ATI to be
Shareholder Received
----------- ----------
Xxxxx Xxxx 2,036,020
Xxxxxx Xxxxxxxx 1,405,680
A-1
SCHEDULE 2.5
INTEGRATED HOMES
COMPANY TAXES
----------------
MARCH 15, 1999
A. USE AND PAYROLL TAXES
DESCRIPTION PRIOR 12/31/98 AFTER 1/1/99
----------- -------------- ------------
Accrued Payroll Taxes $15,159.00 $3,659.00
Sales and Use Taxes $5,108.00 $2,174.00
SCHEDULE 2.8
INTEGRATED HOMES
ACTIONS AND PROCEEDINGS
MARCH 15, 1999
A. ACTIONS AND PROCEEDINGS
Integrated Homes of Florida, Inc. is not aware of any pending actions,
proceedings or judgements against the company as of this date.
SCHEDULE 2.10
INTEGRATED HOMES
REAL ESTATE
MARCH 15, 1999
A. OFFICE SUB-LEASE
Integrated Homes of Florida Inc. has a sub-lease agreement within Concept 2
Reality, Inc. which is in effect until November of 2000. The monthly amount is
$2,308.00 plus any common area maintenance fees.
SCHEDULE 2.11
INTEGRATED HOMES
TANGIBLE ASSETS
MARCH 15, 1999
A. OFFICE EQUIPMENT AND FURNITURE
PHIL'S OFFICE
QUANTITY DESCRIPTION COST EACH EXTENSION
-------- ----------- --------- ---------
1 Desk Lamps 39.99 39.99
1 Desk Lamps 9.99 9.99
2 Floor Lamps 19.99 39.98
3(a) Casual chairs Below
1(a) Glass/chrome secretarial desk Below
1 Executive chair 189.00 189.00
1 Executive chair 90.00 89.00
1 4 tier cupboard/blk 49.00 49.00
1 6 tier cupboard/blk 69.00 69.00
1 Blk metal file cabinet 239.99 239.99
1 Blk/grey file cabinet 115.00 115.00
2 Compdesk worktop 149.00 149.00
1 Executive desk/green Below
1 Worktable/grey 120.00 120.00
2 Plants 39.95 79.90
2 Wall paintings 190.00 380.00
1 Rollaway filetray 29.00 29.00
1 MacQuadra 650 2500.00 2500.00
1 Supermatch Pressview 21-T 2900.00 2900.00
1 Supermatch Proofpositive 7500.00 7500.00
1 Laptop/Macintosh Powerbook 3400C 4259.00 4259.00
1 Syquest Removable 200 559.00 559.00
1 Databackup 2000 1359.00 1359.00
1 Power PC8180 9025.00 9025.00
1 Cartridges 1500.00 1500.00
1 Kodak Digital Camera 600.00 600.00
Kodak Digital Card 100.00 100.00
Littlemouse 59.00 59.00
Personal Items 350.00 350.00
Page 2
ACCOUNTING OFFICE
QUANTITY DESCRIPTION COST EACH EXTENSION
-------- ----------- --------- ---------
2(a) Casual chairs Below
1(b) Executive desk Below
1 Executive chair 89.00 89.00
1 5 Tier file cabinet 69.99 69.99
1 Floor lamp 19.99 19.99
1 Beige file cabinet 30.00 30.00
1 Desk lamp 39.99 39.99
1 MacPerforma 405 550.00 550.00
2 Laptop Comp 5300CS 2900.00 5800.00
2 Global Village K56 370.00 740.00
Global Village 298 M/cards 199.00 199.00
PURCHASING
QUANTITY DESCRIPTION COST EACH EXTENSION
-------- ----------- --------- ---------
2 2 Tier cabinet blk/grey 69.00 69.00
2 Floor lamps 19.99 39.98
1 6 Tier Cabinet blk 69.99 69.99
2(b) Executive desk/green Below
1 SelectPress GCC Tech 5799.00 5799.00
1 PowerMac 7100/80 4800.00 4800.00
1 Powerbook 3400C 3900.00 3900.00
1 Monitor / Radius 20e 2100.00 2100.00
Speakers 329.00 329.00
1 Viewtek Touchscreen 1700.00 1700.00
1 Flatbed Scanner 2200.00 2200.00
1 Transparancy Scanner 13000.00 13000.00
RECEPTION
QUANTITY DESCRIPTION COST EACH EXTENSION
-------- ----------- --------- ---------
2 Visitor High chair 90.00 180.00
1(a) Casual chair Below
1(b) Executive desk/green Below
1 6 Tier cabinet/blk 69.99 69.99
1 4 Tier cabinet/blk 69.00 69.00
3 Plants 39.95 39.95
2 Floor lamps 19.95 39.98
1 Rollaway file bin 35.00 35.00
1 Labelwriter XL Plus 119.00 119.00
1 Macintosh 7100/80 2500.00 2500.00
HENK'S AREA
QUANTITY DESCRIPTION COST EACH EXTENSION
-------- ----------- --------- ---------
2 Secretarial Chairs 42.00 84.00
1 Toshiba Copier Lease
1 NEC Superscript 1260W 1039.00 1039.00
1 Sony Multiscan 100 E.S. 359.00 359.00
1 Labelwriter XL 119.00 119.00
1 Minolta Fax 1800 350.00 350.00
1 Macintosh Performa 6300CD 2500.00 2500.00
DAVID'S OFFICE
QUANTITY DESCRIPTION COST EACH EXTENSION
-------- ----------- --------- ---------
2 Side tables/glasstop 100.00 100.00
1 Coffee table/glasstop 100.00 100.00
1 Plant 75.00 75.00
1 Sony TV 400.00 400.00
1 Philips VCR 350.00 350.00
1 Pioneer Sound System 300.00 300.00
1 Desk lamp 129.99 129.99
1 Steel file cabinet/blk 200.00 200.00
1 Media unit/blk 500.00 500.00
6 Wall paintings 300.00 300.00
2 Floor lamps 19.95 39.98
1 Executive desk w/extension 1400.00 1400.00
glass/top
1 Executive chair/leather 299.99 299.99
1 Sony Multiscan 200SX 639.00 639.00
1 Sharp EL 2192G11Calcu 60.00 60.00
1 Powerbook 3400C 3700.00 3700.00
Personal Items 300.00 300.00
COST OF ITEMS (a) COMBINATION 575.00
COST OF ITEMS (b) COMBINATION 1310.00
GENERAL
QUANTITY DESCRIPTION COST EACH EXTENSION
-------- ----------- --------- ---------
2 Backup/powersupply 99.00 198.00
Cables/connectors 500.00 500.00
Software 6600.00 6600.00
4 Mesh wastecans 19.99 79.96
5 Mats 19.99 99.75
1 Light Table 500.00 500.00
1 Metal file cabinet 150.00
-------
$100,663.49
B. DISPLAY EQUIPMENT DESCRIPTION COST EACH EXTENSION
-------------------------------- --------- ---------
WCI Communities Design Center 26700.00 26700.00
Xxxxxx Signature Homes Design Center 18590.00 18590.00
Philips Video Projector w/case 5050.00 5050.00
Gateway Destination - MultiMedia 3000.00 3000.00
Mighty DVD/Web-Browser 500.00 500.00
27" Multi-scan Monitor 2000.00 2000.00
Sony Digital Video Recorder 3500.00 3500.00
Aegis Home Management Systems 1800.00 3600.00
Presentation Equipment 3500.00 3500.00
---------
$66,440.00
C. TOOLS AND EQUIPMENT DESCRIPTION COST EACH EXTENSION
---------------------------------- --------- ---------
Hand tools, testing equipment, generators, 9500.00 9500.00
ladders, heavy tools, etc.
---------
$9500.00
SCHEDULE 2.13
INTEGRATED HOMES
OPERATIONS OF THE COMPANY
MARCH 15, 1999
A. INDEBTEDNESS FOR BORROWED MONEY
DESCRIPTION AFTER 12/31/98
----------- --------------
AMOUNT
------
Xxxx Xxxxx $10,000
Xxxxx and Xxxxx Xxxxxxx $50,000
Xxxxx and Xxxxxx Xxxxxx $10,000
Xxxxxx Xxxxx $25,000
Xxxxx and Xxxx Xxxxx $10,000
SCHEDULE 3.7
AUTOMOTIVE TECHNOLOGIES INC.
ACTIONS AND PROCEEDINGS
None.
SCHEDULE 3.10
AUTOMOTIVE TECHNOLOGIES INC.
OPERATIONS OF ATI
None.
