EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT is made this 12th day of August, 1998 by and among Hyena
Capital, Inc., a Nevada corporation, hereinafter called "HYENA", a Lumitech,
S.A., a company organized under the laws of Switzerland, hereinafter called
"LUMITECH", and Xxxxxxx Xxxxxxx, hereinafter called "PLANCHE".
RECITALS:
WHEREAS, HYENA desires to acquire 100% of the issued and outstanding shares
of the common stock of LUMITECH, in exchange for 4,000,000 authorized but
unissued shares of the .001 par value common stock of HYENA, pursuant to a plan
of reorganization within the meaning of IRC (1986), Section 368(a)(1)(B), as
amended; and
WHEREAS, PLANCHE desires to exchange 100% of the issued and outstanding
shares of the common stock of LUMITECH, currently owned by PLANCHE, in exchange
for said 4,000,000 shares of HYENA.
NOW THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, and to comsummate the foregoing plan of
reorganization, the parties hereby adopt said plan of organization and agree as
follows:
ARTICLE I
EXCHANGE OF SECURITIES
1.01 ISSUANCE OF HYENA SHARES. Subject to all of the terms and conditions
of this Agreement, HYENA agrees to issue to PLANCHE 4,000,000 fully paid and
nonassessable unregistered shares of HYENA common stock in exchange for 100% of
the outstanding LUMITECH common stock, 500 shares, all of which are currently
owned by PLANCHE.
1.02 TRANSFER OF LUMITECH SHARES. In exchange for HYENA's stock being
issued to PLANCHE as above described, PLANCHE shall on the closing date and
concurrent with such issuance of HYENA's common stock, deliver to HYENA 100% of
the outstanding common stock of LUMITECH.
ARTICLE II
INDEMNIFICATION OF FINDER/NO AFFILIATE
2.01 INDEMNIFICATION OF FINDER/BROKER. Negotiations relative to this
Agreement and related transactions have been conducted with the assistance of
Capital General Corporation who is acting as a broker, finder and consultant on
behalf of both LUMITECH and HYENA. LUMITECH, HYENA and PLANCHE agree to hold
harmless and indemnify Capital General Corporation and its officers and
directors from any and all claim, demand, cause of action or suit raised or
filed in connection with the within Agreement or any related transaction or the
operation or promotion of LUMITECH and/or HYENA or the trading of their shares.
2.02 NO AFFILIATE. All parties agree that after the exchange of shares as
provided above, that neither Capital General Corporation nor any of its officers
and directors have any ongoing or other business relationship with any of the
parties to this Agreement, or their officers, directors and promoters, nor any
family or other relationships with such, and therefore have no ability to
exercise any control or influence over the management and conduct of HYENA's
business and therefore are non affiliates of HYENA.
ARTICLE III
REPRESENTATIONS, AGREEMENTS AND WARRANTIES OF
PLANCHE AND LUMITECH
PLANCHE AND LUMITECH hereby represent, agree and warrant that:
3.01 ORGANIZATION. LUMITECH is a corporation duly organized, validly
existing, and in good standing under the laws of Switzerland, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, is duly qualified to do business and is in good standing in
any jurisdiction its business requires qualification.
3.02 CAPITAL. The authorized capital stock of LUMITECH consists of 500
shares of common stock, of which 500 shares are currently issued and
outstanding. All of the issued and outstanding shares are validly issued, fully
paid and nonassesable.
3.03 SUBSIDIARIES. LUMITECH does not have any subsidiaries.
3.04 DIRECTORS AND OFFICERS. Exhibit 3.04 to this Agreement contains the
names and titles of all directors and officers of LUMITECH as of the date of
this Agreement.
3.05 FINANCIAL STATEMENTS. Exhibit 3.05 to this Agreement includes the
unaudited pro forma financial statements of LUMITECH as of July 23, 1998.
3.06 ABSENCE OF CHANGES. Since the date of LUMITECH's most recent
financial statements included in Exhibit 3.05 there have been no changes in its
financial condition or operations, except for changes in the ordinary course of
business.
3.07 ABSENCE OF UNDISCLOSED LIABILITIES. As of the date of LUMITECH's most
recent balance sheet included in Exhibit 3.05 it did not have any material debt,
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, that is not reflected in such
balance sheet.
3.08 TAX RETURNS. Within the times and in the manner prescribed by law,
LUMITECH has filed all federal, state and local tax returns required by law, has
paid all taxes, assessments and penalties due and payable and has made adequate
provision on its most recent balance sheet for any unpaid taxes. There are no
present disputes as to taxes of any nature payable by LUMITECH.
3.09 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner
reducing or otherwise mitigating the representations contained herein, HYENA
and/or its attorneys shall have the opportunity to meet with
accountants and attorneys to discuss the financial condition of LUMITECH.
LUMITECH shall make available to HYENA and/or its attorneys all books and
records of LUMITECH. If the transaction contemplated hereby is not completed,
all documents received by HYENA and/or its attorneys shall be returned to
LUMITECH and all information so received shall be treated as confidential.
3.10 PATENTS, TRADE NAMES AND RIGHTS. LUMITECH owns or holds all necessary
patents, trademarks, service marks, trade names, copyrights and other rights
necessary to the conduct or proposed conduct of its business.
3.11 COMPLIANCE WITH LAWS. LUMITECH has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
affecting its properties or the operation of its business.
3.12 LITIGATION. LUMITECH is not a party to, nor to the best of its
knowledge is there pending or threatened, any suit, action, arbitration or
legal, administrative or other proceeding, or governmental investigation
concerning its business, assets or financial condition. LUMITECH is not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court or agency, nor is it engaged in any lawsuits to
recover monies due to it.
3.13 AUTHORITY. The Board of Directors of LUMITECH authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein and has full power and authority to execute, deliver and
perform this Agreement.
3.14 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of this
Agreement by LUMITECH and the performance of its obligations hereunder in the
time and manner contemplated will not cause, constitute or conflict with or
result in (i) any breach of the provisions of any license, indenture, mortgage,
charter, instrument, certificate of incorporation, bylaw or other agreement or
instrument to which it is a party or by which it may be bound, nor will any
consents or authorizations of any party other than those hereto be required,
(ii) an event that would permit any party to any agreement or instrument to
terminate it or to accelerate the maturity of any indebtedness or other
obligation, or (iii) an event that would result in the creation or imposition of
any lien, charge or encumbrance on any asset.
3.15 FULL DISCLOSURE. None of the representations and warranties made by
PLANCHE or LUMITECH herein or in any exhibit, certificate or memorandum
furnished or to be furnished by PLANCHE or LUMITECH, or on either's behalf,
contains or will contain any untrue statement of material fact, or omits any
material fact, the omission of which would be misleading.
3.16 ASSETS. LUMITECH has good and marketable title to all of its property
free and clear of any and all liens, claims or encumbrances except as may be
indicated in Exhibit 3.05.
3.17 INDEMNIFICATION. PLANCHE and LUMITECH agree to defend and hold HYENA
and its officers and directors harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities or damages,
including interest, penalties and reasonable attorney's fees, that it shall
incur or suffer, which arise out of, result from or relate to any breach of this
Agreement or failure by PLANCHE or LUMITECH to perform with respect to any of
its representations, warranties or covenants contained in this Agreement or in
any exhibit or other instrument furnished or to be furnished under this
Agreement.
3.18 AUTHORITY TO EXCHANGE. As of the date of this Agreement, PLANCHE
holds 100% of the shares of LUMITECH common stock. Such shares are owned of
record and beneficially by PLANCHE and such shares are not subject to any lien,
encumbrance or pledge. PLANCHE holds authority to exchange such shares pursuant
to this Agreement.
3.19 INVESTMENT INTENT. PLANCHE understands and acknowledges that the
shares of HYENA common stock offered for exchange or sale pursuant to this
Agreement are being offered in reliance upon the exemption from registration
requirements of the Securities Act of 1933, as amended (the "Act"), pursuant to
Section 4(2) of the Act and the rules and regulations promulgated thereunder,
for nonpublic offerings and makes the following representations, agreements and
warranties with the intent that the same may be relied upon in determining the
suitability of PLANCHE as a purchaser of HYENA common stock:
(a) The shares of HYENA common stock are being acquired solely for the
account of PLANCHE, for investment purposes only, and not with a view to, or for
sale in connection with, any distribution thereof, and with no present intention
of distributing or reselling any part of the HYENA common stock acquired;
(b) PLANCHE agrees not to dispose of his HYENA common stock or any
portion thereof unless and until counsel for HYENA shall have determined that
the intended disposition is permissible and does not violate the Act or any
applicable Federal or state securities laws, or the rules and regulations
thereunder;
(c) PLANCHE agrees that the certificates evidencing the HYENA common
stock acquired pursuant to this Agreement will have a legend placed thereon
stating that they have not been registered under the Act or any state securities
laws and setting forth or referring to the restrictions on transferability and
sale of the HYENA common stock, and that stop transfer instructions shall be
placed with the transfer agent for said certificate.
(d) PLANCHE acknowledges that HYENA has made all records and
documentation pertaining to HYENA common stock available to them and to their
qualified representatives, if any, and has offered such person or persons an
opportunity to ask questions and further discuss the proposed acquisition of
HYENA and that all such questions and information requested have been answered
by HYENA and its officers and directors to PLANCHE's satisfaction;
(e) PLANCHE has carefully evaluated his financial resources and
investment position and the risks associated with this transaction and is able
to bear the economic risks of this transaction; and he has substantial knowledge
and experience in financial, business and investment matters and is qualified as
a sophisticated investor, and is capable of evaluating the merits and risks of
this transaction; and he desires to acquire the HYENA common stock on the terms
and conditions set forth;
(f) PLANCHE is able to bear the economic risk of an investment in the
HYENA common stock; and
(g) PLANCHE understands that an investment in the HYENA common stock is
not liquid and PLANCHE has no need for liquidity in this investment.
3.20 RECEIPT OF RELEVANT INFORMATION. PLANCHE and LUMITECH have received
from HYENA all financial and other information concerning HYENA and its
promoters, officers and directors, including, but not limited to Prospectus
dated June 30, 1993, Annual Report on Form 10-K for the year ended December 31,
1997, Forms 10-Q for the quarters ended March 30, 1998 and June 30, 1998, and
Forms 8-K dated April 17 and April 22,, 1997 as filed with the Securities and
Exchange Commission, and all other documents and information they have
requested.
3.21 PUBLIC "SHELL" CORPORATION. LUMITECH and PLANCHE are aware that HYENA
has public shareholders and is a "shell" corporation without significant assets
or liabilities, and further that public companies are subject to extensive and
complex state, federal and other regulations. Among other requirements, PLANCHE
and LUMITECH are aware that a Form 8-K must be filed with the United States
Securities and Exchange Commission within fifteen days after closing which
filing requires that audited financial statements be filed within sixty days
after the filing of the 8-K, and they agree that such responsibility shall not
be the responsibility of Capital General Corporation, its officers, directors or
employees nor the existing officers of HYENA, but the sole responsibility of the
new officers and directors of HYENA. PLANCHE and LUMITECH are aware of the legal
requirements and obligations of public companies, understand that regulatory
efforts regarding public shell transactions similar to the transaction
contemplated herein has been and is currently being exerted by some states, the
U.S. Securities and Exchange Commission and the National Association of
Securities Dealers, Inc. (NASD), and are fully aware of their responsibilities,
following closing, to fully comply with all securities laws and regulations, and
agree to do so.
3.22 NO ASSURANCES OR WARRANTIES. PLANCHE and LUMITECH acknowledge that
there can be no assurance regarding the tax consequences of this transaction,
nor can there be any assurance that the Internal Revenue Code or the regulations
promulgated thereunder will not be amended in such manner as to deprive them of
any tax benefit that might otherwise be received. PLANCHE and LUMITECH are
relying upon the advice of their own tax advisors with respect to the tax
aspects of this transaction. No representations or warranties have been made by
HYENA, Capital General Corporation, or their officers, directors, affiliates or
agents, as to the benefits to be derived by PLANCHE and LUMITECH in completing
this transaction, nor have any of them made any warranty or agreement, expressed
or implied, as to the tax or securities consequences of the transactions
contemplated by this Agreement or the tax or securities consequences of any
action pursuant to or growing out of this Agreement.
ARTICLE IV
REPRESENTATIONS, AGREEMENTS AND WARRANTIES OF HYENA
HYENA represents, agrees and warrants that:
4.01 ORGANIZATION. HYENA is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, has all necessary
corporate powers to own properties and to carry on its business as now owned and
operated by it, is duly qualified to do business and is in good standing in each
of the jurisdictions where its business requires qualification.
4.02 CAPITAL. The authorized capital stock of HYENA consists of
100,000,000 share of $.001 par value common stock of which 1,000,000 shares are
currently issued and outstanding. All of the issued and
outstanding shares are validly issued, fully paid and nonassessable. All
currently outstanding shares of HYENA Common Stock have been issued in
compliance with applicable federal and state securities laws.
4.03 SUBSIDIARIES. HYENA has no subsidiaries and does not own any interest
in any other enterprise, whether or not such enterprise is a corporation.
4.04 DIRECTORS AND OFFICERS. Exhibit 4.04 to this Agreement contains the
names and titles of all officers and directors of HYENA as of the date of this
Agreement.
4.05 FINANCIAL STATEMENTS. Exhibit 4.05 to this Agreement includes HYENA's
audited financial statements as of December 31, 1997. The financial statements
have been prepared in accordance with generally accepted accounting principles
and practices consistently followed throughout the period indicated and fairly
present the financial position of HYENA as of the dates of the balance sheets
included in the financial statements and the results of operations for the
periods indicated.
4.06 ABSENCE OF CHANGES. Since the date of HYENA's most recent financial
statements, there has not been any change in its financial condition or
operations except for changes in the ordinary course of business.
4.07 ABSENCE OF UNDISCLOSED LIABILITIES. As of the date of HYENA's most
recent balance sheet, included in Exhibit 4.05, it did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in such balance sheet.
4.08 TAX RETURNS. Within the times an din the manner prescribed by law,
HYENA has filed all federal, state or local tax returns required by law, has
paid all taxes, assessments and penalties due and payable and has made adequate
provision on its most recent balance sheet for any unpaid taxes. There are no
present disputes as to taxes of any nature payable by HYENA.
4.09 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner reducing
or otherwise mitigating the representations contained herein, LUMITECH and
PLANCHE shall have the opportunity to meet with HYENA's accountants and
attorneys to discuss the financial condition of HYENA. HYENA shall make
available to LUMITECH and PLANCHE all books and records of HYENA.
4.10 PATENTS, TRADE NAMES AND RIGHTS. HYENA does not use any patents,
trade marks, service marks, trade names or copyrights in its business.
4.11 COMPLIANCE WITH LAWS. HYENA has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
affecting its properties, securities or the operation of its business.
4.12 LITIGATION. HYENA is not a party to, nor to the best of its knowledge
is there pending or threatened, any suit, action, arbitration or legal,
administrative or other proceedings, or governmental investigation concerning
its business, assets or financial condition. HYENA is not in default with
respect to any order, writ, injunction or decree of any federal, state local or
foreign court or agency, nor is it engaged in, nor does it anticipate it will be
necessary to engage in, any lawsuits to recover money or real or personal
property.
4.13 AUTHORITY. The Board of Directors of HYENA has authorized the
execution of this Agreement and the transactions contemplated herein, and it has
full power and authority to execute, deliver and perform this Agreement.
4.14 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of his
Agreement by HYENA and the performance of its obligations hereunder will not
cuase, constitute, conflict with or result in (i) any breach of the provisions
of any license, indenture, mortgage, charter, instrument, certificate of
incorporation, bylaw or other agreement or instrument to which it is a party or
by which it may be bound, nor will any consents or authorizations of any party
other that those hereto be required, (ii) an event that would permit any party
to any agreement or instrument to terminate it or to accelerate the maturity of
any indebtedness or other obligation, or (iii) an event that would result in a
creation or imposition of any lien, charge or encumbrance on any asset.
4.15 FULL DISCLOSURE. None of the representations and warranties made by
HYENA herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by it or on its behalf, contains or will contain any untrue statement
of a material fact, or omits any material fact the omission of which would be
misleading.
4.16 ASSETS. HYENA has good and marketable title to all of its property
free and clear of any and all liens, claims and encumbrances, except as may be
indicated in Exhibit 4.05.
4.17 INDEMNIFICATION. HYENA agrees to indemnify, defend and hold harmless
against and in respect to any and all claims, demands, losses, cost, expenses,
obligations, liabilities or damages, including interest, penalties and
reasonable attorney's fees, incurred or suffered, which arise out of, result
from or relate to any breach of, or failure by HYENA to perform, any of its
representations, warranties or covenants in this Agreement or in any exhibit or
other instrument furnished or to be furnished under this Agreement.
4.18 VALIDITY OF HYENA SHARES. The shares of HYENA $.001 par value common
stock to be issued pursuant to this Agreement will be duly authorized, validly
issued, fully paid and nonassessable under Nevada law.
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.01 INVESTIGATIVE RIGHTS. Prior to the Closing Date each party shall
provide to the other parties, including the parties' counsel, accountants and
other authorized representatives, full access during normal business hours (upon
reasonable advance written notice) to such parties' books and records.
5.02 CONDUCT OF BUSINESS. Prior to the Closing Date, each party shall
conduct its business in the normal course and shall not see, pledge or assign
any assets, without the prior written approval of the other parties. No party
shall amend its certificate of incorporation or bylaws, declare dividends,
redeem or sell stock or other securities, incur additional liabilities, acquire
or dispose of fixed assets, change employment terms, enter into any material or
long-term contract, guarantee obligations of any third party, settle or
discharge any
balance sheet receivable for less that its stated amount, pay more on any
liability that its stated amount or enter into any other transaction other than
in the regular course of business.
ARTICLE VI
CLOSING
6.01 CLOSING. The closing (the "Closing") of this transaction shall be
held at the offices of HYENA, or such other place as shall be mutually agreed
upon, on or before August 13, 1998. (the "Closing Date"):
(a) HYENA shall issue 4,000,000 shares of its $.001 par value common
stock in a certificate or certificates representing such shares.
(b) PLANCHE shall deliver the certificates representing 100% of the
shares of LUMITECH common stock (500 shares).
(c) HYENA shall deliver a signed consent or minutes of its Board of
Directors, approving this Agreement and authorizing the matters set forth
herein;
(d) LUMITECH shall deliver a signed consent or minutes of its Board of
Directors approving this Agreement and authorizing the matters set forth herein;
(e) HYENA's existing Board of Directors will (i) elect three new
directors, as named by PLANCHE to act as officers and directors of HYENA in the
capacities set forth in Exhibit 6.01 and (ii) the two current directors will
resign their positions with HYENA effective the Closing Date.
ARTICLE VII
MISCELLANEOUS
7.01 CAPTIONS AND HEADINGS. The article and paragraph headings throughout
this Agreement are for convenience and reference only and shall not be deemed to
define, limit or add to the meaning of any provision of this Agreement.
7.02 NO ORAL CHANGE. This Agreement may not be changed or modified except
in writing signed by the party against whom enforcement of any change or
modification is sought.
7.03 NON-WAIVER. Except as otherwise expressly provided herein, no waiver
of a covenant, condition or provision of this Agreement shall be deemed to have
been made unless executed in writing and singed by the party against whom such
waiver is charged. The failure of any party to insist in any one or more cases
upon the performance of any covenant, condition or provision of this Agreement
shall not be construed as a waiver or relinquishment for the future of any such
covenant, condition or provision. no waiver by any party of one breach by the
other shall be construed as a waiver with respect to a subsequent breach.
7.04 TIME OF ESSENCE. Time is of the essence of this Agreement and of
each and every provision hereof.
7.05 ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding between the parties and supersedes all prior agreements and
understandings.
7.06 CHOICE OF LAW/ARBITRATION. This Agreement and its application,
shall be governed under the laws of the State of Nevada. Any and all disputes
and controversies of every kind and nature between the parties hereto arising
out of or relating to this Agreement relating to the existence, construction,
validity, interpretation or meaning, performance, non-performance, enforcement,
operation, breach, continuance or termination thereof shall be subject to an
arbitration mutually agreeable to the parties or, in the absence of such mutual
agreement, then subject to arbitration in accordance with the rules of the
American Arbitration Association. It is the intent of the parties hereto and the
purpose of this provision to make the submission to arbitration of any dispute
or controversy arising hereunder an express condition precedent to any legal or
equitable action or proceeding of any nature whatsoever.
7.07 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
7.08 NOTICES. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing if mailed to the party
to whom notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed as follows:
HYENA:
0000 Xx. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
LUMITECH and PLANCHE:
Xxxxxx Xxxxxxxx Xxxxxxxxx, 00
0000 Xxxxxxx, Xxxxxxxxxxx
7.09 EXPENSES. The parties will pay their own legal, accounting and
other expenses incurred in connection with this Agreement.
7.10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties and covenants set forth in this Agreement or in any instrument,
certificate, opinion or other writing provided for in it, shall survive the
Closing Date.
7.11 FURTHER DOCUMENTS. The parties agree to execute any and all
other documents and to take such other action or corporate proceedings as may be
necessary or desirable to carry out the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the date
first above written.
HYENA
___________________________________
President
LUMITECH, S.A.
____________________________________
President
____________________________________
Xxxxxxx Xxxxxxx
EXHIBIT 3.04
DIRECTORS AND OFFICERS
OF
LUMITECH, S.A.
Xxxxxxx Xxxxxxx - President and Director
Xxxxxxxx Xxxxxxx - Secretary and Director
EXHIBIT 3.05
FINANCIAL STATEMENTS
OF
LUMITECH, S.A.
EXHIBIT 4.04
DIRECTORS AND OFFICERS
OF
HYENA CAPITAL, INC.
Xxxxxx Xxxxxxx - President and Director
Xxxxx Xxxxxxxxx - Secretary/Treasurer and Director
EXHIBIT 4.05
FINANCIAL STATEMENTS
OF
HYENA CAPITAL, INC.
EXHIBIT 6.01
DIRECTORS AND OFFICERS
(TO BE ELECTED)
OF
HYENA CAPITAL, INC.
Xxxxxxx Xxxxxxx - President and Chairman of the Board
Xxxxxxxx Xxxxxxx - Secretary and Director
Xxxx Xxxxxxx - Director
