EXHIBIT 2.1
AGREEMENT
This Agreement ("Agreement") is made this 7th day of October, 1999, by
and among xxxxxxxx.xxx, inc., a Florida corporation, with its principal place of
business located at 0000 Xxxxxxx Xxxxxxxxx, 0x' Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000
("Buyer"); MDCM Acquisition Corp., a Florida corporation which is a wholly-owned
subsidiary of Buyer ("Acquisition Corp."); CSC Holdings, LLC, a North Carolina
limited liability Company, with its principal place of business located at 0000
Xxxxx Xxxxx, Xxxxxx Xxxx X.X. 00000 ("CSC" or "Seller"); Capital Savings Co.,
Inc., a North Carolina Corporation located at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, XX 00000 , NC ("Capital Savings"); PlanMax Inc., a North Carolina
Corporation located at c% CSC Marketing , LLC., 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxx Xxxxxxxx 00000 ("P1anMax"); ACM/USA, Inc., a North Carolina
corporation located at 0000 Xxxxx Xxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
("ACM/USA"); CSC.' Marketing Services, LLC, a North Carolina limited liability
company located at 0000 Xxxxx xxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("CSCMS");
Xxxx Xxxxxxxxx who resides at 0000 Xxxxx Xxxxx, Xxxxxx Xxxx XX 00000, and Xxxxxx
X. Xxxxxxxxxx who resides at 000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000,
(Xxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxxx are hereinafter collectively referred to
as the "Shareholders of Seller").
FACTUAL BACKGROUND
CSC is the owner of record and beneficially of all of the issued and
outstanding shares of the capital stock of Capital Savings, whose business
consists of (i) operation of a traditional brick and mortar retail mortgage
brokerage operations with (five) offices in North Carolina which in 1998
originated approximately three hundred and five million dollars in mortgage
loans; (ii) ownership of a portion of the membership interest of Advantage
Capital Mortgage of York North Raleigh, LLC., and Advantage Capital Mortgage/
Property Associates, LLC., both mortgage brokerage businesses organized as
limited liability companies and located in North Carolina; (iii) management of
two mortgage brokerage businesses, Advantage Capital Mortgage of Raleigh, LLC.
and Advantage Capital Mortgage of Hickory, LLC and (iv) rights to the BuildNet
LOI, as described herein, to be obtained by Capital Savings from CSC prior to
the termination of the BuildNet LOI; and
CSC is the owner of record and beneficially of all the membership
interests of CSCMS, a mortgage processing center supporting each of the
businesses described herein; and
CSC is the owner of record and beneficially of all of the issued and
outstanding shares of the capital stock of PlanMax, a technology based company
providing exclusive on-line mortgage origination services for certified
financial planners and insurance agents. The business of P1anMax consists
principally of (i) a contract with XxxxXxxxx.xxx, Inc. to market PlanMax
services to a nationwide network of approximately 1800 certified financial
planners and (ii) marketing and licensing agreements regarding use of its
proprietary Mortgage Maximizer software by mortgage brokers that originate
residential loans and (iii) an agreement with Buyer in connection with the
training and recruitment of certified financial planners to become part time
employees of Buyer as outside mortgage loan consultants (all of the foregoing
contracts of PlanMax, which are more particularly described in Schedule 1.2(b),
are hereinafter referred to as
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the "P1anMax Contracts"); (iv) Mortgage Maximizer, a Windows(C) based software
package that provides mortgage brokers, consumers, and financial planners with
illustrations and servicing options for variable mortgage payment plans; and
CSC is a party to a Letter of Intent with BuildNet, Inc. ("BuildNet")
dated April 22nd, 1999 (the "BuildNet LOI" attached hereto as Schedule A) which
shall be terminated in consideration for the agreement of BuildNet to enter into
an Internet Marketing and Co-Branded Web Site Agreement (the "Co-Brand
Contract") and an ABA Net Branch and Member Web Site Development Agreement (the
"Private Label Contract") with CSC which will be assigned to Capital Savings at
Closing as hereinafter defined (the Co-Brand and Private Label Contracts are
hereto referred as the "BuildNet Contracts"); and
CSC is the owner of record and beneficially of all of the issued and
outstanding shares of ACM/USA. ACM/USA is in the business of operating and
managing mortgage brokerage businesses through various joint ventures with
owners of real estate businesses and independent real estate agents working out
of such businesses. These joint ventures are affiliated business arrangements,
as that term is defined in The Real Estate Settlement Procedures Act ("RESPA"),
and each joint venture consists of a limited liability company (hereinafter the
" ACM/LLC") pursuant to which ACM/USA owns a 30% membership interest represented
by Class A voting shares, and pursuant to a management agreement between ACM/USA
and ACMILLC, ACM/USA operates the mortgage brokerage business for the ACM/LLC on
the premises of the Class B member, which is the owner of the real estate
business and whose ownership in the ACM/LLC is typically represented by a 30%
interest which may or may not be voting. The independent real estate agents
working out of the premises of the Class B owner typically are represented as a
group owning an aggregate 40% interest represented by Class C non voting stock;
and
Buyer and Seller entered into a Letter of Intent on July 291h , 1999
(the "Xxxxxxxxx XXX" attached hereto as Schedule B) pursuant to which Buyer paid
$250,000 to Seller (the Option Price") to obtain the exclusive option (the
"Option") to enter into a definitive agreement to acquire (i) Seller's rights in
the BuildNet LOI upon certain conditions as more fully set forth therein; (ii)
the shares of ACM/LJSA and P1anMax for a one million dollar down payment in
common stock of Buyer, valued at sixty dollars per share, with Seller having the
right to earn additional amounts based on revenues of certain of the acquired
companies, up to a maximum of twenty five million dollars, also payable in
common stock of Buyer but valued on the date any such incentive payments are
due, and (iii) the shares of Capital Savings for six hundred and fifty thousand
dollars payable in common stock of Buyer valued at sixty dollars per share. The
Xxxxxxxxx XXX also contemplates that in the event of exercise of the Option,
Buyer would employ Xxxx Xxxxxxxxx and Xx Xxxxxxxxxx in management positions. The
Xxxxxxxxx XXX further contemplates that during the sixty-day term of the Option,
Buyer would conduct its due diligence purchase investigation and that the
parties would cooperate in structuring the transaction as a taxfree
reorganization.
During the due diligence period the parties to the Xxxxxxxxx XXX have
determined to make certain material modifications with respect to the
transactions contemplated therein, to wit: (i) CSC transferred all of its rights
and interest in the BuildNet LOI to Capital Savings; (ii) Buyer shall not
purchase the stock of PlanMax but instead acquire substantially all of its
assets and
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accept an assignment of certain of its contracts referred to below, (iii) Buyer
shall not purchase the stock or assets of ACM/USA but instead accept an
assignment of the Net Branch Agreements (the "ACM Net Branch Agreements") or
Developer/Marketing Agreements (the "ACM Developer Agreements") entered into by
ACM/USA, which agreements constitute substantially all of the assets of ACM/USA,
(iv) Buyer shall not purchase the stock or assets of Capital Savings, but
instead, Acquisition Corp. will merge with and into Capital Savings in a reverse
triangular merger and (v) Buyer shall acquire certain assets of CSCMS and accept
an assignment of certain of its contracts.
It is therefore agreed that all of the above recitals are true and
correct, and as follows:
1. MERGER OF CAPITAL SAVINGS AND ACQUISITION CORP., TRANSFER AND
ASSIGNMENT OF PLANMAX CONTRACTS AND ASSETS TO BUYER, ASSIGNMENT OF
ACM/USA CONTRACTS TO BUYER, TRANSFER AND ASSIGNMENT OF CSC MARKETING
SERVICES LLC CONTRACTS AND ASSETS TO BUYER
1.1. MERGER OF ACQUISITION CORP. WITH AND INTO CAPITAL SAVINGS. On
the Closing Date, Acquisition Corp. shall be merged with and
into Capital Savings, with Capital Savings surviving, under
the provisions of the Florida Business Corporation Act and the
North Carolina Business Corporation Act, as further set forth
in the Plan of Merger attached hereto as EXHIBIT A, which is
herein incorporated by reference (the "Plan of Merger"). At
the Effective Time of the Merger, the separate existence of
Acquisition Corp. shall cease, and the Articles of
Incorporation and Bylaws of Capital Savings shall become the
Articles of Incorporation and Bylaws of Acquisition Corp. The
parties hereto agree to take such action to execute and
deliver such further instruments, including Articles of
Merger, as may be necessary to carry out the terms of this
Agreement and the Plan of Merger. Seller hereby represents
that the shares of Capital Savings are free and clear of all
liens, charges or encumbrances of whatsoever nature.
1.2. TRANSFER AND ASSIGNMENT OF PLANMAX CONTRACTS AND ASSETS.
(a) On the Closing Date, PlanMax shall sell to Buyer, and
Buyer shall buy fromPlanMax, all of the following
properties and assets of PlanMax situated in, on, or
about the premises of PlanMaxto be effective as of
Closing (the "P1anMax Contracts and Assets").
(i) All-inventory, equipment, and other assets,
work in process, mortgage loan pipeline,
orders for work in process, supplies and
other like items which are acceptable to
Buyer as more particularly described in
Schedule 1.2(a)(i).
(ii) All customer lists, telephone numbers,
including P1anMax's telephone number, names,
Mortgage Maximizer(C), including the company
name, "P1anMax", good will, trademarks,
trade names and cognates and derivatives
thereof owned by P1anMax or used by PlanMax
in
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PlanMax's business as more particularly
described in Schedule 1.2(a)(ii).
(b) All contracts to which PlanMax is a party shall be
assigned to Buyer at Closing are attached hereto in
Schedule 1.2(b). PlanMax shall take all necessary
steps to effectuate the assignment including, but-not
limited to, providing notice to, and acquiring
approval of, any interested third party related to
such contracts.
(c) Seller and PlanMax represent and warrant that the
PlanMax Contracts and Assets described in this
Section 1.2 will constitute substantially all of the
assets of PlanMax on the Closing Date.
1.3. ASSIGNMENT OF CONTRACTS OF ACM/USA. On the Closing Date,
ACM/USA shall assign to Buyer, and Buyer shall accept
assignment from ACM/USA of all Net Branch Agreements and
Developer/Marketing Agreements of ACM/USA as more fully set
forth in Schedule 1.3. Seller and ACM/USA represent and
warrant that the Net Branch Agreements and Developer/Marketing
Agreements will constitute substantially all of the assets of
ACM/LTSA on the Closing Date.
1.4. TRANSFER AND ASSIGNMENT OF CSC MARKETING SERVICES, LLC
CONTRACTS AND ASSETS.
(a) On the Closing Date, CSCMS shall sell to Buyer, and
Buyer shall buy fromCSCMS, all of the following
properties and assets of CSCMS situated in, on, or
about the premises of CSC Marketing Services, LLC to
be effective as of Closing (the "CSCMS Contracts and
Assets").
i. All inventory, equipment, and other assets,
work in process, mortgage loan pipeline,
orders for work in process, supplies and
other like items which are acceptable to
Buyer as more particularly described in
Schedule 1.4(a)(i).
ii. All customer lists, telephone numbers,
including CSCMS's telephone number, names,
including the company name, "CSC Marketing
Services, LLC", good will, trademarks, trade
names and cognates and derivatives thereof
owned by CSCMS or used by CSCMS in CSCMS's
business as more particularly described in
Schedule 1.4(a)(ii).
(b) All contracts to which CSCMS is a party shall be
assigned to Buyer at Closing are attached hereto in
Schedule 1.4(b). CSCMS shall take all necessary steps
to effectuate the assignment including, but not
limited to, providing notice to, and acquiring
approval of, any interested third party related to
such contracts.
1.5. CONSIDERATION FOR THE PLANMAX CONTRACTS AND ASSETS, THE CSCMS
CONTRACTS AND ASSETS AND THE ACM ASSIGNMENT. The consideration
to be paid to Seller
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for each of the PlanMax Contracts and Assets, and the CSCMS
Contracts and Assets, and the ACM Assignment shall be one
dollar, plus the Earn Out consideration described in Section
1.7.
a. Furthermore, at Closing, Buyer agrees to enter into a
loan agreement with CSC in a form reasonably
acceptable to Buyer and CSC which shall provide for a
loan by Buyer to CSC in the amount of Three Hundred
Thousand Dollars ($300,000) to be evidenced by a
promissory note of CSC bearing interest at the rate
of Eight and One Quarter Percent (8.25%) per annum
(The Bank Prime Loan rate of interest (known as the
"Prime Rate") as reported in the October 6, 1999
Federal Reserve Statistical Release H.1 S) . Payments
due thereunder shall be computed as interest only
payments and such payments shall be due on the first
business day of, each month following the execution
of the promissory note. The loan shall be due on
demand and shall be secured by i) any and all Earn
Out payments due hereunder; ii) personal guarantees
by Messrs. Xxxxxxxxx and Xxxxxxxxxx in a form
reasonably acceptable to Buyer; and iii) any and all
bonus amounts payable under the Employment Agreements
as set forth hereunder in Section 1.11. CSC and
Shareholders of Seller hereby grant to Buyer a
security interest in all Earn Out payments due
hereunder and Shareholders of Seller hereby grant to
Buyer a security interest in the bonus amounts
payable under their respective Employment Agreements.
1.6 CONSIDERATION FOR CAPITAL SAVINGS MERGER. The consideration
for the merger of Acquisition Corp. with and into Capital
Savings shall be as set forth in the Plan of Merger.
1.7. EARN OUT CONSIDERATION. In addition to the consideration set
forth in Sections 1.5 and 1.6, Shareholders of Seller shall be
entitled to receive additional payments in full shares of
Buyer's Common Stock, based upon the revenues received by
Buyer from the operation of the contracts and assets described
in Sections 1.2, 1.3 and 1.4 and the BuildNet Contracts,
computed as more particularly described in Schedule 1.7, (the
"Earnout Revenue Base") and hereinafter referred to as the
"Earn Out": (i) on February 28, 2001, an amount equal to one
times the revenues realized from the Earnout Revenue Base for
the calendar year 2000; (ii) on February 28, 2002, an amount
equal to one half times the revenues realized from the Earnout
Revenue Base for the calendar year 2001; and (iii) on February
28, 2003, an amount equal to one quarter of the revenues
realized from the Earnout Revenue Base for the calendar year
2002. All Earn Out payments will be paid in Common Stock of
Buyer based on its value determined by its average closing
price for the thirty trading days prior to the date any Earn
Out payment is due. The maximum aggregate amount of the Earn
Out is Twenty Five Million Dollars ($25,000,000) of Buyer's
Common Stock, and all payments under this Section are further
subject to the security interest of Buyer set forth in Section
1.5(a) and the Provisions Regarding Buyers Common Stock as set
forth in greater detail herein.
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a. For the purpose of computing the Earn Out, revenues
for the Earnout Revenue Base shall be determined
according to generally accepted accounting principles
(hereinafter "GAAP"). Earn Out payments shall be
attributed to the respective businesses and BuildNet
Contracts acquired hereunder in proportion to the
revenues such businesses and contracts contribute to
the Earnout Revenue Base.
b. Buyer shall use commercially reasonable efforts to
operate the assets acquired that contribute to the
EarnOut Revenue Base, but shall have the right, in
its sole discretion, to operate, sell or discontinue
the operations of P1anMax, CSCMS and ACM and the
BuildNet Contracts, as shall be in the best interests
of Buyer and without regard to the impact of such a
sale on the Earn Out described above.
c. The Common Shares of Buyer delivered to Seller as
Earn Out consideration and consideration under
Section 1.6 shall be validly issued, fully paid and
non-assessable, and shall be subject to the
Provisions Regarding Buyers Common Stock, more fully
described in Section 3 of this Agreement and all such
shares shall bear a legend containing reference to
the terms of this Agreement and a restriction on
transfer indicating that the shares may not be
offered or sold and no transfer of them may be made
unless in compliance with the Securities Act of 1933
and applicable state securities laws. In the event
Buyer sells Capital Savings within twelve (12) months
of Closing, Buyer agrees to pay Seller one half of
the price received in excess of Six Hundred Fifty
Thousand Dollars ($650,000) payable in the same
manner and consideration as that received by Buyer.
d. Buyer shall keep reasonably detailed and accurate
records in connection with the Earn Out.
Contemporaneously with any payments required to be
made hereunder, Buyer shall provide Seller with a
schedule showing the calculations made in connection
herewith, in reasonable detail, and shall allow
Seller and its representatives access to the
underlying detail to verify the calculations,
provided such representatives agree to be bound by a
customary nondisclosure agreement as provided by
Buyer. Seller or its independent outside accountants,
attorneys, or other representatives shall have the
right, at its expense, upon not less than ten (10)
business days' written notice and during Buyer's
normal business hours, disrupting as little as
possible Buyer's business operations, to inspect the
books and records of Buyer relating to this
Agreement, for the purpose of verifying any reports,
information or payments due to Seller under this
Agreement. If such audit shows that any of Buyer's
reports understated the actual amounts due to Seller
by more than ten percent (10%), then Buyer shall pay
Seller the amount determined to be due and reasonable
costs which may be incurred by Seller in conducting
such review.
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1.8. TIME AND PLACE OF CLOSING. The closing of the purchase and
sale provided for in this Agreement (the "Closing") shall be
held no later than the 29th day of October, 1999, at the
offices of Buyer, or such other place, date or time as may be
fixed by mutual agreement of the parties (the "Closing Date").
1.9. DELIVERY OF SHARES, ASSIGNMENT OF CONTRACTS AND OTHER
DOCUMENTS. At the Closing, Seller shall deliver to Buyer, as
provided below, certificates for the shares of Capital Savings
(the "Shares"), duly endorsed in blank for transfer or with
stock powers attached (duly executed in blank) together with
all such other documents as may be required to effect a valid
transfer of the Shares by Seller, free and clear of all liens,
encumbrances, charges or claims. In addition, at the Closing,
Seller shall deliver to Buyer such documents as are necessary
to effectuate the P1anMax Transfer and Assignment, the ACM
Assignment of Contracts and other such documents as set forth
elsewhere herein.
1.10. TAX FREE STATUS. The Parties hereto intend the transactions
described in Sections 1.2 and 1.3 to qualify as tax-free
reorganizations under Section 368(a)(1)(C) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the
transaction described in Section 1.1 to qualify as a tax-free
reorganization under Sections 368(a)(1)(A) and 368(a)(2)(e) of
the Code. However, Buyer makes no representations or warranty
to Seller regarding the tax treatment of these transactions,
whether these transactions will qualify as tax-free plans of
reorganization under the Code, or any of the tax consequences
to Seller, and Seller acknowledges that Seller is relying
solely on its own tax advisors in connection with this
Agreement. Seller understands that tax-free treatment of the
transactions described in Sections 1.2 and 1.3 is conditioned
upon Seller dissolving and liquidating P1anMax and ACM/USA,
respectively, as soon as practicable after the Closing Date.
1.11. EMPLOYMENT AGREEMENTS. At the Closing, Xx Xxxxxxxxxx and Xxxx
Xxxxxxxxx will enter into employment agreements with Buyer
(hereinafter "Employment Agreements") in the form attached
hereto as Schedule 1.11 pursuant to which they will each be
full-time employees of Buyer and shall devote such time as is
customary in the industry, but not less than thirty-five (35)
hours per work week, in furtherance of their management
positions with Buyer.
2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, and the Shareholders of Seller, jointly and severally make the
following representations and warranties to Buyer, each of which is true and
correct on the date hereof and shall be true and correct on the Closing Date and
at the Effective Time (as defined in the Plan of Merger), shall be unaffected by
any investigations heretofore or hereafter made by Buyer or any knowledge of
Buyer other than as specifically disclosed in writing to Buyer at the time of
execution of this Agreement, and shall survive the Closing Date and the
Effective Time:
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2.1. ORGANIZATION, APPROVAL AND STANDING. Capital Savings, CSCMS,
ACM and P1anMax (hereinafter collectively the "Companies") and
Seller are each duly organized, validly existing and in good
standing under the laws of the State of North Carolina, with
full power and authority to enter into and execute this
Agreement and to carry on their respective businesses as now
being conducted. None of the Companies are required by the
conduct of their business or the ownership of their property
to qualify to do business as a foreign corporation in any
other jurisdiction other than as set forth on Schedule 2.1.
The execution of this Agreement and the performance of the
obligations contemplated hereby have been validly authorized
by all necessary action on the part of the Seller, including
approval of their Board of Directors, shareholders and
members.
2.2. CORPORATE DOCUMENTS. Schedule 2.2 contains true and correct
copies of each of the Companies' Articles of Incorporation or
Organization, as amended to date, certified by the Secretary
of the State of North Carolina, and each of the Companies'
Stock Record Book and copies of each of the Companies' Bylaws
and Operating Agreements, as amended to date, certified by the
Secretary of each of Companies as being complete and correct.
2.3. CAPITAL STOCK OF CAPITAL SAVINGS. Schedule 2.3 shows the
authorized capital shares of Capital Savings, and its par
value; all of the shares shown on Schedule 2.3 are duly and
validly issued, outstanding, fully paid and non-assessable.
There are no outstanding options, warrants or agreements of
any kind for the issuance or sale of, or outstanding
securities convertible into any shares of capital stock of
Capital Savings. . The Seller has complete and unrestricted
power to sell, convey, assign, transfer and deliver the shares
to Buyer. The transfer of the shares pursuant to this
Agreement will pass to Buyer good, valid and marketable title
to the shares, free and clear of all liens, pledges, options,
charges and adverse claims of every nature. Upon delivery of
the shares to Buyer pursuant to this Agreement, Buyer will
have good, valid and marketable title to all the outstanding
shares of capital stock of Capital Savings, and the shares
will be, when delivered, duly authorized, validly issued,
fully paid and non-assessable.
2.4. FINANCIAL STATEMENTS. Attached as Schedule 2.4 are the balance
sheet of Capital Savings, P1anMax and CSCMS as of December
31St, 1998 and August 31St, 1999, and the related statements
of income and retained earnings and changes in financial
position for each of the periods then ended including in each
case the related footnotes thereof, all certified or prepared
by Xxxxxx, Xxxx & Xxxxxx, P.A., Certified Public Accountants,
00 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx, (the "Financial
Statements"). The Financial Statements have been prepared in
accordance with GAAP applied on a basis consistent with that
of the preceding year and present fairly the financial
position of Capital Savings, P1anMax and CSCMS respectively as
of the dates set forth and the results of its operations for
the period indicated.
2.5. ABSENCE OF UNDISCLOSED LIABILITIES. Except as and to the
extent reflected or reserved against in the Financial
Statements as of December 31St, 1998 and
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August 31st, 1999, Capital Savings has no liabilities or
obligations (including refund obligations to present or past
customers asserted as of that date), secured or unsecured
(whether absolute or contingent) of a nature required to be
reflected in audited financial statements including notes
thereto. Neither Capital Savings nor the Seller know of or
have any reasonable grounds to know the basis for the
assertion against the Capital Savings as of December 31 St,
1998 and August 31 St, 1999 of any material claim or liability
of any nature not fully reflected or reserved against in the
Financial Statements or any material liability or claim of any
nature arising since that date except those incurred in the
ordinary course of business.
2.6. ABSENCE OF CHANGES. Except as scheduled on Schedule 2.6 and as
may be reflected in this Agreement or the other Schedules
hereto since September 1 St, 1999, there has not been (i) any
material adverse changes in the financial condition or in the
operations, business, prospects, properties or assets of the
Companies; (ii) any material damages, destruction or loss to
any of the properties or assets of the Companies, whether or
not covered by insurance, which might adversely affect or
impair the ability of the Companies to conduct their business;
(iii) any labor trouble or any event or condition of any
character related thereto which may materially and adversely
affect the business of the Companies'; (iv) any declaration,
setting aside or payment of any dividend or any distribution
with respect to the capital stock of the Companies; (v) any
contingent liability incurred by either of the Companies as a
guarantor or otherwise with respect to the obligations of
others; (vi) any mortgage, encumbrance or lien placed upon any
of the properties of the Companies and which remains in
existence on the date of this Agreement or on the Closing
Date; (vii) any purchase, sale or other disposition or any
other agreement for the purchase, sale or disposition of any
of the properties or assets of the Companies except in the
ordinary course of business; (viii) any change in compensation
in excess of ten percent (10%) per annum payable or to become
payable by the Companies to any of its officers, employees or
agents, or any bonus, payment or arrangement with respect to
any of such officers, employees or agents; (ix) any payment to
either Seller in the form of salary or other compensation; (x)
any expense allowance paid to any person whether in the form
of advance or loan except for reimbursement of expenses
previously incurred or reasonable expenses incurred in the
ordinary course of business.
2.7 CONDITIONS AFFECTING THE COMPANIES' BUSINESS. Except as set
forth in Schedule 2.7, there are no conditions known to Seller
or Shareholders of Seller with respect to the markets
facilities, personnel, suppliers or business relationships of
the Companies which may materially and adversely affect the
Companies' business or prospects. The Companies have received
no notice of any violation of any federal or state mortgage
banking, franchise, securities or other law, rule or
regulation, including environmental or zoning regulations or
other ordinances or laws with respect to their business or
properties, and the Companies are not in violation of any such
laws, rules or ordinances with respect to their business or
properties.
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2.8. ACCOUNTS RECEIVABLE. All accounts receivable arising from the
Capital Savings business are valid and subsisting amounts
owing to Capital Savings, have been acquired in the ordinary
course of business and are carried on the books at values
determined in accordance with GAAP, are not subject to
defenses, setoffs or claims of the mortgagor (other than those
already accounted or) arising from the acts or omissions of
Capital Savings. All accounts receivable arising from the
business of PlanMax, CSCMS and ACM are valid and subsisting
amounts owing to either entity, have been acquired in the
ordinary course of business and are carried on the books at
values determined in accordance with GAAP, are not subject to
defenses, setoffs or claims or the obligor (other than those
already accounted or) arising from the acts or omissions of
PlanMax.
2.9. REAL PROPERTY. Attached, as Schedule 2.9 is a list of all real
property, which is either owned or leased by any of the
Companies. Each of the leases set forth in Schedule 2.9 is
valid and in full force and effect in accordance with its
terms. There is no material default or claimed default under
any of the leases by the Companies, and there does not exist
any event which, with notice or lapse of time or both, would
constitute a default. No consent of any party to any of such
leases is necessary or required upon the transfer of the
Shares from Seller to Buyer.
2.10. PERSONAL PROPERTY. The Companies have good and marketable
title to all of the personal property used by them, free and
clear of all mortgages, security interests, pledges, liens,
conditional sales agreements, charges or encumbrances, except
as set forth in Schedule 2.10 and except as set forth therein,
there are no financing statements under the Uniform Commercial
Code which names either of the Companies as a debtor. At
Closing, Seller will cause each and all liens set forth in
Schedule 2.10 (except liens securing obligations which will
remain with the Companies) to be eliminated so that the
Companies will own all personal property free and clear of
liens, encumbrances and charges. To the best of Seller'
knowledge, all personal property used in the Companies'
business is in good and serviceable condition, normal wear and
tear excepted other than such personal property which may be
temporarily out of service in the normal course of business.
2.11. MORTGAGE BANKING BUSINESS AND COMPLIANCE WITH LAW. Capital
Savings has not taken or failed to take any action the effect
of which would operate to invalidate or materially impair the
approval, guarantee or commitment to insure of any Agency.
(such as Federal Housing Administration, Veteran's
Administration, Xxxxxx Xxx, Xxxxxx Xxx, Xxxxxxx Mac or any
state regulatory agency with the authority to regulate the
business of the Companies) or private mortgage insurers with
which Capital Savings conducts business. Complete and accurate
records in all material respects for all present and past
accounts have been maintained consistent with the operations
of a mortgage brokerage business. All required disclosure
forms, reports and records have been prepared, completed,
maintained and filed in all material respects in accordance
with all applicable federal and state laws and regulations. In
addition, the Companies have complied with all applicable
federal, state, local or foreign laws, ordinances,
regulations, and rules,
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and all orders, writs, injunctions, awards, judgments, and
decrees applicable to it or to its assets, properties, and
business, including but not limited to its business of taking
applications for, originating, underwriting, processing and
selling mortgage loans (collectively, "Applicable Law").
Seller and each of its subsidiaries hold all valid licenses
and other governmental permits that are necessary and/or
legally required to be held by them to conduct their
respective businesses as presently conducted.
2.12. IMPROPER PAYMENTS. Seller has not, (i) used any funds for
unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity, (ii) made any
unlawful payment to foreign or domestic government officials
or employees or to foreign or domestic political parties or
campaigns or violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended, or (iii) made any other
unlawful payment.
2.13. CAPITAL SAVINGS PIPELINE. Schedule 2.13 is a complete and
accurate list of the Capital Savings loans in the Pipeline
(defined as loans originated by Capital Savings prior to the
Effective Time and not funded, and accrued as of August 31St,
and September 30d', 1999) on the date hereof, such list to be
updated upon the request of Buyer. Each of the loans listed is
owned by Capital Savings free and clear of all liens or
encumbrances whatsoever.
2.14. REPRESENTATIONS WITH RESPECT TO MORTGAGE LOANS AND CONTRACTS
AND ASSETS TRANSFERRED HEREUNDER. a) No breach or violation of
any representation, warranty or covenant exists which
individually or collectively would have an adverse effect,
material or otherwise, on Capital Savings with respect to any
mortgage loans, the ownership of which has been transferred by
Capital Savings to any person and notwithstanding the general
indemnity provisions contained in this Agreement, Seller shall
defend, indemnify and hold harmless Buyer, as more fully set
forth in Section 9, specifically with respect to any claims
against Buyer or Capital Savings by any transferee of any
mortgage loan originated or transferred by Capital Savings
prior the Closing Date. b) No breach or violation of any
representation, warranty or covenant exists which individually
or collectively would have an adverse effect, material or
otherwise, on the P1anMax or CSCMS assets transferred or
contracts assigned hereunder by PlanMax, CSCMS or ACM. Upon
closing of this Agreement, Buyer shall have good and
unencumbered title to the assets and contracts described
herein in Sections 1.2, 1.3 and 1.4.
2.15. TRADENAMES, TRADEMARKS, COPYRIGHTS AND OTHER INTELLECTUAL
PROPERTY. Schedule 2.15 is a true and complete listing of all
tradenames, trademarks, service marks, copyrights and the
registrations therefore owned or used by the Companies and a
brief description of each, and all Intellectual Property as
defined below necessary or required for the conduct of the
business of the Companies. To the best knowledge of Seller and
Shareholders of Seller, none of the Companies has infringed,
and is not now infringing, any tradename, service xxxx, or
copyright belonging to any other person. Except as set forth
in Schedule 2.15, none of the
11
Companies is a party to any license, agreement or arrangement,
whether as a licensor, licensee or otherwise, with respect to
any trademark, tradename, service xxxx or copyright used by
the Companies. Except as expressly specified in Schedule 2.15,
the business of the Companies may be conducted without license
by others for the use of any tradename, trademark, service
xxxx or copyright. As used herein, the term "INTELLECTUAL
PROPERTY" means, collectively, all worldwide industrial and
intellectual property rights, including, without limitation,
patents, patent applications, patent rights, trademarks,
trademark registrations and applications therefor, trade dress
rights, trade names, service marks, service xxxx registrations
and applications therefor, logos Internet domain names,
Internet and World Wide Web URLs or addresses, copyrights,
copyright registrations and applications therefor, moral
rights, mask work rights, mask work registrations and
applications therefor, franchises, licenses, inventions, trade
secrets, know-how, customer lists, supplier lists, proprietary
processes and formulae, software source code and object code,
algorithms, net lists, architectures, structures, screen
displays, layouts, inventions, development tools, designs,
blueprints, specifications, technical drawings (or similar
information in electronic format) and all documentation and
media constituting, describing or relating to the foregoing,
including, without limitation, manuals, programmers' notes,
memoranda and records.
2.16. LITIGATION AND LABOR MATTERS. Except as set forth in Schedule
2.16, there is no suit, action, arbitration, or legal,
administrative or other proceeding or governmental
investigation pending or, to the knowledge of Seller or
Shareholders of Seller, threatened against the Seller, the
Companies or the Shareholders of Seller. No labor disputes are
pending, or to the knowledge of Seller or Shareholders of
Seller, threatened, nor is unionization threatened at either
of the Companies. None of the Companies are \ subject to any
order, writ, injunction or decree of any federal, state or
local court, department or agency or instrumentality. To the
best knowledge of Seller, each of the Companies have complied
in all material respects with all applicable laws, rules and
regulations relating to the employment of labor, including
laws relative to wages, hours and the payment or withholding
of taxes for its employees. With respect to any matters
scheduled on Schedule 2.16, and notwithstanding the general
indemnity provisions contained herein, Seller and Shareholders
of Seller shall defend, indemnify and hold harmless Buyer, as
more fully set forth in Section 9, with respect to any loss
with respect thereto.
2.17. CONTRACTS AND AGREEMENTS. Except for agreements listed
elsewhere in this Agreement or in other Schedules pertaining
hereto, Schedule 2.17 is a complete and accurate list of all
agreements, commitments and understandings, written or oral,
to which the Companies are a party or are bound, (the
"Contracts"). Except as set forth in Schedule 2.17, all the
Contracts are presently valid, existing and in full force and
effect, and there is no material default by the Companies or
the written claim of default by any party thereto, or any
threatened cancellation thereof known to Seller. True and
complete copies of the Contracts have been delivered to the
Buyer.
12
2.18. TAX RETURNS. Each of the Companies have timely filed or caused
to be filed all federal, state and local tax returns for
income taxes, sales taxes, withholding and all payroll taxes,
property taxes, and all other taxes of every kind whatsoever
required by law to have been filed, and all such tax returns
are complete and accurate. Each of the Companies have paid or
caused to be paid all taxes which have become due, whether
pursuant to said returns or pursuant to any assessments or
otherwise, and there is no further liability (whether or not
disclosed on such returns or assessments) for any such taxes,
and no interest or penalties accrued or accruing with respect
thereto, except a may be set forth in the balance sheets and
statements of operations referred to herein. None of the
Companies or Seller has filed any consent for the Companies
under Section 341(I) of the Internal Revenue Code.
2.19. INSURANCE POLICIES. The Companies are each insured with
reputable insurers against such risks and in' such amounts
normally insured against by companies of the same type and in
the same line of business. All of the insurance policies,
binders or bonds maintained are in full force and effect and
none of the Companies is in default under any such policies.
Schedule 2.19 is a description of all insurance policies held
by the Companies concerning their business and properties.
Each of the Companies has maintained and will maintain such
insurance on assets and properties through the Closing and
purchase additional "tail" coverage to protect Buyer from any
and all claims incurred but not reported as of the Closing.
Seller shall provide Buyer with evidence of such insurance at
or prior to the Closing Date. After Closing, such insurance
will be terminated for the Companies, and Seller will take
appropriate action so that the Companies and Buyer will obtain
the benefits of the Companies' prepaid insurance.
2.20. AUTHORIZATION AND APPROVALS. The Board of Directors, the
shareholders and members of each of the Seller and the
Companies have approved the transactions contemplated by this
Agreement, have approved the execution and delivery of this
Agreement and have full power to authorize the consummation of
this Agreement without any further corporate authorization.
This Agreement is a valid and binding agreement of Seller,
Shareholders of Seller and the Companies in accordance with
its terms.
2.21. VIOLATION OF OTHER INSTRUMENTS. Neither the execution of this
Agreement nor the consummation of the transactions
contemplated by this Agreement will result in the breach of
any of the terms or provisions of, or constitute a default or
an event which, with notice or lapse of time or both, would
constitute a default under, the Articles of Incorporation or
Organization or the By-laws or Operating Agreement of the
Companies, or any lease, license, promissory note, conditional
sales contract, commitment, indenture, deed of trust,
instrument or other agreement to which Seller, Shareholders of
Seller or the Companies is a party or by which their property
is bound, or constitute an event which would permit any party
to any such agreement to terminate or accelerate such
agreement, or result in the creation or imposition of alien,
charge or encumbrance against any asset of the Companies.
13
2.22. THIRD PARTY CONSENTS AND APPROVALS. No consent, approval or
other action by any governmental authority or third party
consent is required in connection with the execution, delivery
and performance of this Agreement which consent has not been
obtained.
2.23. INTEREST IN CREDITORS. Seller does not have any direct or
indirect interest in any creditor, competitor, supplier,
lessor or customer, including lessees, other than the
interests set forth in Schedule 2.23, or in the other
Schedules attached to this Agreement and neither the execution
nor performance of this Agreement or the Employment Agreements
will result in a conflict of interest
2.24. BANKS, SAFETY DEPOSIT BOXES. Schedule 2.24 lists the names and
addresses of all banks or financial institutions in which
either of the Companies have an account, deposit or safety
deposit box, with the names of all persons authorized to draw
on these accounts or deposits or to have access to all boxes.
2.25. POWERS OF ATTORNEY. None of the Companies have given any
outstanding power of attorney.
2.26. MINUTE BOOKS. The minute books of the Companies accurately
reflect all actions taken by its shareholders, board of
directors, members and committees at their respective
meetings. Seller will indemnify and hold Buyer harmless from
and against any third parties liability or claim based upon or
resulting from lack of formality or due authorization of
actions taken by the Companies prior to the Closing.
2.27. DATA PROCESSING. The Companies have good and valid title or
valid license to the data processing software (including
documentation, user manuals, upgrades and current release,
etc.) currently used by them and the data processing system
(software and hardware) is operating in the intended manner.
2.28. OUTSIDE EMPLOYMENT. Schedule 2.28 sets forth all current
written or oral employment agreements of Xx Xxxxxxxxxx or Xxxx
Xxxxxxxxx in which either is an employer, employee,
independent contractor or owner of 5% or more of any
corporation, partnership, joint venture, sole proprietorship
or other business venture.
2.29. EMPLOYEES, ERISA AND OTHER COMPLIANCE. Schedule 2.29 is a list
of all employees of Capital Savings and their current rate of
pay, and all agreements, employment handbooks, policies;
practices or understandings (written or oral) concerning or
affecting the employees, or any employee bonus program,
incentive plan or employee benefit plan. Capital Savings is in
compliance in all material respects with all applicable laws,
agreements and contracts relating to employment, employment
practices, immigration, wages, hours, and terms and conditions
of employment, including, but not limited to, employee
compensation matters. Capital Savings does not have any
employment contracts or consulting agreements currently in
effect that are not terminable at will (other than
14
agreements with the sole purpose of providing for the
confidentiality of proprietary information or assignment of
inventions).
(a) ERISA. Capital Savings does not have any pension plan
which constitutes, or has since the enactment of the
Employee Retirement Income Security Act of 1974, as
amended ("ERISA") constituted, a "multi-employer
plan" as defined in Section 3(37) of ERISA. No
pension plan of Capital Savings is subject to Title
IV of ERISA.
(b) CAPITAL SAVINGS BENEFIT ARRANGEMENTS. Schedule
2.29(b) lists each employment, severance or other
similar contract, arrangement or policy, each
"employee benefit plan" as defined in Section 3(3) of
ERISA and each plan or arrangement (written or oral)
providing for insurance coverage (including any
self-insured arrangements), workers' benefits,
vacation benefits, severance benefits, disability
benefits, death benefits, hospitalization benefits,
retirement benefits, deferred compensation,
profit-sharing, bonuses, stock options, stock
purchase, phantom stock, stock appreciation or other
forms of incentive compensation or post-retirement
insurance, compensation or benefits for employees,
consultants or directors which is entered into,
maintained or contributed to by Seller and covers any
employee or former employee of Seller. Such
contracts, plans and arrangements as are described in
this Section are hereinafter collectively referred to
as "Capital Savings Benefit Arrangements", Seller has
delivered to Buyer or its counsel a complete and
correct copy and description of each Capital Savings
Benefit Arrangement.
(c) COMPLIANCE. Each Capital Savings Benefit Arrangement
has been maintained in compliance in all material
respects with its terms and with the requirements
prescribed by any and all statutes, orders, rules and
regulations that are applicable to such Capital
Savings Benefit Arrangement, and each such Capital
Benefit Arrangement that is an "employee pension
benefit plan" as defined in Section 3(2) of ERISA
which is intended to qualify under Section 401(a) of
the Code has received a favorable determination
letter that such plan satisfied the requirements of
the Tax Reform Act of 1986 (a copy of which letters)
have been delivered to Buyer and its counsel).
Capital Savings has timely filed and delivered to
Buyer and its counsel the most recent annual report
(Form 5500) for each Capital Savings Benefit
Arrangement that is an "employee benefit plan" as
defined under ERISA. Capital Savings has never been a
participant in any "prohibited transaction", within
the meaning of Section 406 of ERISA with respect to
any employee pension benefit plan (as defined in
Section 3(2) of ERISA) which Capital Savings as
employer or in which Capital Savings participates as
an employer, which was not otherwise exempt pursuant
to Section 408 of ERISA (including any individual
exemption granted under Section 408(a) of ERISA), or
which could result in an excise tax under the Code.
15
(d) CONTRIBUTIONS. All contributions due from Capital
Savings or any of its subsidiaries with respect to
any of the Capital Savings Benefit Arrangements have
been made or have been accrued on Seller's financial
statements, and no further contributions will be due
or will have accrued thereunder as of the Closing
Date.
(e) PARTICIPATION. All individuals who, pursuant to the
terms of any Capital Savings Benefit Arrangement, are
entitled to participate in any such Capital Savings
Benefit Arrangement, are currently participating in
such Capital Savings Benefit Arrangement or have been
offered an opportunity to do so and have declined in
writing.
(f) NO INCREASE IN EXPENSE. There has been no amendment
to, written interpretation or announcement (whether
or not written) by Capital Savings relating to, or
change in employee participation or coverage under,
any Capital Savings Benefit Arrangement that would
increase materially the expense of maintaining such
Capital Savings Benefit Arrangement above the level
of the expense incurred in respect thereof for
Capital Savings' most recent fiscal year.
(g) CONTINUATION OF COVERAGE; COBRA. The group health
plans (as defined in Section 4980B(g) of the Code)
that benefit employees of Seller are in compliance,
in all material respects, with the continuation
coverage requirements of Section 4980B of the Code as
such requirements affect Seller, its subsidiaries and
their employees. As of the Closing Date, there will
be no material outstanding, uncorrected violations
under the Consolidation Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA"), with respect to
any of Capital Savings Benefit Arrangements, covered
employees, or qualified beneficiaries that could
result in a material adverse effect on Seller, or in
a material adverse effect on Buyer after the Closing
Date.
2.30. ADEQUACY OF REPRESENTATIONS AND WARRANTIES. None of the
warranties and representations made by Seller and Shareholders
of Seller in this Agreement, or in the Schedules to this
Agreement, or in the certificates furnished by Seller under
this Agreement, contains or will contain any untrue statement
of a material fact, or omit to state a material fact necessary
in order to make the statements contained herein or therein
not misleading.
3. PROVISIONS REGARDING BUYER COMMON STOCK AND REGISTRATION RIGHTS.
3.1. INVESTMENT REPRESENTATIONS. Seller and each of the
Shareholders of Seller represent and warrant that it is their
present intention to acquire the shares of Buyer's Common
Stock received by them pursuant to this Agreement for
investment and not with a view to the distribution or resale
thereof, and agree to reaffirm this investment representation
in writing at any time that any such shares are issued to them
and further agree that Buyer may defer issuing any such shares
16
if and so long as Seller or the Shareholders of Seller fail to
deliver such representation. Seller and the Shareholders of
Seller have conducted their own investigation and evaluation
of Buyer's business and financial condition and have had to
opportunity to obtain such information pertaining to Buyer as
has been requested.
3.2. AGREEMENT OF SELLER AND SHAREHOLDERS OF SELLER. Seller and
each of the Shareholders of Seller agrees that they will not
sell or transfer any of the shares of Buyer's Common Stock
received by them hereunder unless a determination is made that
registration of such shares under the Securities Act of 1933,
as amended (the "Act") is not required in connection with such
transaction, or unless a registration statement under the Act
is then in effect with respect to such shares and the
purchaser or transferee shall have been furnished with a
prospectus meeting the requirements of Section 10 of the Act,
in any of which events such shares will be transferable in
such transaction or pursuant to such registration statement.
For purposes of this Agreement a determination that
registration of shares of Buyers Common Stock under the Act is
not required in connection with a transaction shall be deemed
to have been made if and when an opinion of counsel acceptable
to Buyer is rendered to such effect.
3.3. LEGEND. Buyer shall endorse on the certificates for the shares
of Buyer Common Stock deliverable to the Seller and
Shareholders of Seller an appropriate reference to the
foregoing provisions of this Section 3, and the transfer agent
shall be instructed not to transfer any of such shares unless
it has been advised by Buyer or has otherwise been satisfied
that Seller and the Shareholders of Seller have complied with
such provision.
3.4. REGISTRATION RIGHTS. If Buyer proposes to register shares of
Buyer Common Stock under the Act as a result of the exercise
of demand registration rights held by the holders of the
Buyer's Common Stock, or otherwise registers the shares of the
Buyer's senior executive officers, Buyer will give reasonable
notice to Shareholders of Seller and upon the written request
of Shareholders of Seller, the Buyer will use reasonable
efforts to effect the registration of the shares that may be
issued hereunder.
a. In addition, if (x) Buyer's counsel does not issue a
tax opinion to Seller at closing that the
transactions contemplated hereby will be treated as
tax-free exchanges or (y) Seller or its owners either
(i) elects to report any transaction, or part
thereof, as a taxable transaction or (ii) Seller or
its owners report the transactions as tax-free
exchanges but the IRS or any state tax authority
challenges any transaction, or part thereof, as not
being a tax-free exchange and Seller or its owners
pay or agree to pay a tax with respect thereto, then
Buyer agrees to file a registration statement on Form
S-3 (or successor form, the " S-3 Registration
Statement") with the SEC to register the shares
issued to Seller hereunder and maintain its
effectiveness on the following conditions:
17
i. Buyer will file a Form S-3 (or successor
form) within 60 days of becoming eligible to
file such registration statement, which
Seller understands currently would not be
until Buyer has been a '34 Act company for
12 months and had timely filed all of its
SEC periodic reports (Form 10-K, Forms
10-Qs, etc.).
ii. Buyer will not be obligated to file such
registration statement or maintain its
effectiveness at any time that Seller is
eligible to sell all of its shares of
Buyer's Common stock in ordinary brokerage
transactions pursuant to Rule 144.
iii. It is acknowledged and agreed that Buyer's
eligibility to utilize Form S-3 is dependent
on Buyer not having been late in any
periodic reports required to be filed under
the '34 Act, such as Form l OK or Form lOQ
and that ineligibility to use form S-3 due
to non-compliance with the conditions
required for use of such form shall not be
considered a breach hereunder. However,
Buyer agrees to use best efforts to timely
file such reports.
iv. Buyer shall not be required to file a Form
S-3 if the circumstances in clause (y) of
Section 3.4(a) are a consequence of Seller's
failure to dissolve and liquidate P1anMax
and ACM/USA, or either of them.
b. Notwithstanding the foregoing, if Buyer is otherwise
required to file the Form S-3 Registration Statement
pursuant to the terms of this Agreement, but is
unable to do so, or to maintain its effectiveness
because, in the opinion of Buyer's counsel, it does
not comply with any one or more of the eligibility
requirements for the use of Form S-3, such failure
shall not be deemed a breach of this Agreement and,
in such event, Seller shall have the right to receive
an advance payment of such portion of the Earnout as
shall be sufficient to pay the taxes then immediately
due on this transaction, up to a maximum amount equal
to [(x) the value of the shares received (determined
based upon their value on the date received)
multiplied by the effective federal (and, if
applicable, state) tax rate applicable to the shares
received minus (y) the sum of (i) the value of any
shares which may then be sold on the open market
under a then effective Form S-3, pursuant to Rule 144
or otherwise and (ii) the amount of proceeds realized
from the prior sale of any shares (reduced by any
amounts used (or designated to be used) to satisfy
federal or state income taxes attributable to either
the receipt or sale of shares) (the "Earnout
Advance"), and Seller shall have the right to set off
against the Earnout Advance any current or future
amounts that may be due to Seller under this
Agreement, and further any such Earnout Advance shall
be evidenced by a promissory note, in a form
acceptable to Buyer, with principal and interest
payable monthly over a period of three years, at the
prevailing prime rate of interest, and secured by any
shares of stock of Buyer paid as a down payment on
the purchase price, or pursuant to the Earnout as
described
18
herein. Any Earnout Advance provided hereunder shall
be made at such time or times which enable the Seller
to make all required estimated and final federal and
state income tax payments, if any, attributable to
the receipt of the shares and shall be determined at
the time of any advance.
c. If, because of the size of this transaction, Buyer is
required to file audited financial statements with
the Securities and Exchange Commission (the "SEC")
for any period prior to closing, and if such
statements are not available and an audit cannot be
completed subsequent to the Closing on a timely
basis, Buyer shall not be required to register shares
of Seller during any period during which Buyer is not
eligible to use Form S-3 by reason of the absence of
such audited financial statements. If such audited
financial statements are required to be filed by
Buyer with the SEC after Closing but are not
available from Seller, Shareholders of Seller shall
be required to make representations required by
Buyer's accountants in order for Buyer's accountants
to perform and complete the required audit. Moreover,
it is acknowledged and agreed that Buyer would be
ineligible to utilize Form S-3 if acquisition of
Seller's businesses is a material acquisition
reportable on Form 8K and Buyer does not include with
the Form 8K report the required audited financial
statements of the acquired businesses, and such event
shall not be a breach of any of Buyer's obligations
hereunder if it occurs because the required audited
financial statements of such businesses cannot be
obtained.
d. If in connection with the registration of any
securities of Buyer hereunder, the managing
underwriter advises the Buyer that the total number
of securities requested to be registered by the
current, or future holders of registration rights
exceeds the number of securities that can be sold in
an orderly manner within an acceptable price range,
then the Buyer's securities shall be included first,
second the securities of all other holders of
registration rights who received such registration
rights prior to the Closing Date, and third the
shares of Buyer's Common Stock issued hereunder prior
to the effective date of such registration statement.
e. The Registration Rights granted hereunder shall
terminate as to Xxxxxxxxx or Xxxxxxxxxx if the
Employment Agreement of either is terminated by the
Buyer prior to the expiration of the term thereof for
Cause as defined therein, or if terminated by either
Xxxxxxxxx or Xxxxxxxxxx due to their voluntary
resignation prior to the-expiration of the Term of
such Employment Agreements.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Buyer is a corporation
duly organized, validly existing and in good standing under
the laws of the State of Florida whose shares are publicly
traded on NASDAQ. Acquisition Corp. is a corporation duly
19
organized, validly existing and in good standing under the
laws of the State of Florida.
4.2 CONFLICTING AGREEMENTS, BY-LAWS AND CHARTER PROVISIONS.
Neither the execution or delivery of this Agreement, or any
other document to be delivered pursuant to this Agreement, nor
the fulfillment or compliance with the terms and provisions of
this Agreement, will conflict with the terms, conditions or
provisions of the articles or by-laws of the Buyer or
Acquisition Corp., or any agreements or instrument to which
Buyer or Acquisition Corp. is subject or by which their
respective properties are bound.
4.3 AUTHORIZATION AND APPROVALS. The Boards of Directors of the
Buyer and Acquisition Corp. have approved the transactions
contemplated in this Agreement and have authorized the
execution and delivery of this Agreement. The sole shareholder
of Acquisition Corp. has approved this Agreement and the Plan
of Merger. No further approval or authorization will be
necessary nor will the approval of any third person, entity or
governmental agency be required for the Buyer or Acquisition
Corp. to consummate this Agreement, which approval has not
been obtained. This Agreement is a valid and binding agreement
of the Buyer and Acquisition Corp. in accordance with its
terms.
5. ADDITIONAL COVENANTS AND AGREEMENTS
Between the date hereof and the Closing date, except with written
consent of the Buyer:
5.1. CONDUCT OF BUSINESS. Each of the Companies shall conduct its
business only in the usual and ordinary course and (i) the
character of such business shall not be changed; (ii) there
shall be no material change in the amount of any of the assets
or liabilities as shown on the Financial Statements; (iii)
there shall be no change in the Articles of Incorporation or
Organization or Bylaws or Operating Agreement; (iv) there
shall be no change in the authorized or issued shares; (v)
there shall be no increase made in the compensation paid or
payable by either of the companies to any of its directors,
officers, employees; (vi) no assets shall be sold except in
the ordinary course and for good and sufficient consideration;
(vii) none of the Companies shall enter into any written or
oral contract except in the ordinary course of business (viii)
none of the Companies shall amend, terminate or change any
contract described in any Schedule hereof to which it is a
party except in the ordinary course; (ix) none of the
Companies shall sell any stock, bonds or other securities; (x)
none of the Companies shall incur any obligation or liability
(absolute or contingent) except in the ordinary course of
business or as described in the Schedules attached hereto;
(xi) none of the Companies shall discharge or satisfy any lien
or encumbrance or pay any obligation or liability absolute or
contingent other than current liabilities shown on the balance
sheets heretofore delivered and current liabilities incurred
since that date except; (xii) none of the Companies shall make
any payment or distribution to its shareholders or purchase or
redeem any of its capital stock; (xiii) none of the Companies
shall mortgage, pledge or subject to lien or encumbrance any
of its assets, tangible or
20
intangible; (xiv) none of the Companies shall cancel any debts
or claims or waive any rights; (xv) none of the Companies
shall sell assign or transfer any patent or other intangible
asset; (xvi) none of the Companies shall adopt any profit
sharing, pension or bonus plan.
5.2. CONSENTS AND APPROVALS. The parties shall jointly seek to
obtain the consent of any required regulatory authorities for
the transaction described in the Plan of Merger. Seller
acknowledges that it is Seller's sole responsibility to secure
such consents at Seller's expense.
5.3. FURTHER ASSURANCES. From time to time, at and after the
Closing, at either party's request, without further
consideration and without otherwise affecting the indemnities
set forth in Section 9, the other party shall execute and
deliver at its expense such additional instruments and take
such other action (excluding the bringing of suit) as the
requesting party may reasonably require to further the
purposes and intents of this Agreement.
5.4. REPRESENTATIONS AND WARRANTIES UNAFFECTED BY BUYER'S DUE
DILIGENCE. It is further acknowledged that any inquiry or
investigation made by Buyer independent of this Agreement
shall not in any way affect or lessen the representations and
the warranties made by Seller in this Agreement or the
survival of such representations and warranties at the
Closing.
5.5. NASDAQ LISTING OF SHARES. Buyer agrees to list with the NASDAQ
national market system all of the shares of Buyer's Common
Stock issued pursuant to this Agreement.
6. CONDITIONS PRECEDENT TO THE PERFORMANCE OF BUYER AND ACQUISITION CORP.
The obligations of Buyer and Acquisition Corp. to consummate
the transactions described herein and to perform their respective
covenants under this Agreement are subject to the satisfaction, on or
before the Closing, of all the conditions set forth in this Section.
Buyer and Acquisition Corp. may waive any and all of these conditions
in whole or in part without prior notice.
6.1 PERFORMANCE BY SELLER. Seller and Shareholders of Seller shall
have performed, satisfied and, complied with all covenants,
agreements and conditions required by this Agreement to be
performed or complied with on or before the Closing. Each of
the representations and warranties made in this Agreement, and
the statements contained in any Schedule hereto or in any
instrument, list, certificate or writing delivered hereunder
shall be true and correct in all material respects, and
acceptable to Buyer in its sole discretion, at and as of the
Closing Date as though such representations and warranties
were made or given on and as of the Closing Date, except for
any changes permitted by the terms of this Agreement or
consented to in writing by Buyer.
21
6.2 RESIGNATIONS, RELEASES AND CORPORATE RECORDS. Seller shall
deliver to Buyer:
a. Resignations of all officers and directors of Capital
Savings with such resignations to be effective
immediately following the consummation of the
Closing;
b. General releases by all officers, directors and
shareholders of Capital Savings of any liability of
Capital Savings to them or any claim which they may
have against Capital Savings or Buyer; and
c. The minute books, stock record books and corporate
seal of Capital Savings.
6.3 OPINION OF SELLER'S COUNSEL. Buyer and Acquisition Corp. shall
receive from counsel for Seller an opinion, dated the Closing
Date, in form and substance satisfactory to Buyer and
Acquisition Corp., and their counsel, to the following effect:
a. Each of the Companies is duly organized, valid and
existing in good standing under the laws of the State
of North Carolina, with full power and authority to
own and or lease their properties and conduct their
business as now being conducted.
b. The Companies' issued and outstanding stock is as set
forth herein; that all of the shares are duly and
validly issued, outstanding, fully paid and
non-assessable, and that the Seller is the owner of
record of the stock of Capital Savings. There are no
outstanding options, rights or convertible securities
of either of the Companies.
c. Seller has complete and unrestricted power to sell,
convey, assign, transfer and deliver the shares of
Capital Savings to Buyer; such transfer will pass to
Buyer good, valid and marketable title to such
shares, free and clear of all liens, pledges,
options, charges and adverse claims of every nature
whatsoever, and upon delivery of such shares to Buyer
pursuant to this Agreement, Buyer will have good,
valid and marketable title to all of the outstanding
shares of capital stock of Capital Savings, and such
shares will be free and clear of all liens,
encumbrances, charges or claims.
d. The execution, delivery and performance of this
Agreement by Seller and the Companies (i) has been
duly authorized by all necessary corporate action,
(ii) does not violate any provision of the law or the
articles of incorporation or by-laws of the
Companies, and (iii) to the best of such counsel's
knowledge, will not result in a breach in, or cause a
default under, any indenture, agreement or instrument
to which the Companies is a party or is bound.
e. This Agreement has been duly and validly executed and
delivered by Seller and the Companies and is binding
and valid on each of them in accordance with its
terms, except as such terms may be limited by
bankruptcy,
22
insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally.
f. Except as set forth in this Agreement or in the
Schedules to this Agreement, such counsel does not
know of any suit, action, arbitration or legal,
administrative or other proceeding or governmental
investigation pending or threatened against or
affecting either of the Companies, their business or
properties.
g. The business of the Companies has been conducted in
accordance with all applicable federal and state
laws, rules and regulations.
h. Such counsel does not know of any action, suit,
proceeding or claim pending or threatened against
either of the Companies, their properties or
businesses, or the transactions contemplated by this
agreement, except as set forth herein.
i. No consent, approval or order of any governmental or
administrative board or body is required for the
execution and delivery by the Seller of this
Agreement and the exchange of the shares of capital
stock of the Companies with Buyer pursuant hereto.
j. In rendering the foregoing opinion, such counsel may,
when reasonable, state their opinion on specific
matters of fact to the best of their knowledge, and
to the extent they deem such reliance proper, they
may rely on certificates of public officials and
officers of the Companies and the Seller. Copies of
any such certificates shall be delivered to the Buyer
and its counsel.
6.4 ABSENCE OF LITIGATION. No action or other litigation
pertaining to the transaction contemplated by this Agreement
or to its consummation shall be instituted or threatened on or
before the Closing.
6.5 OTHER AGREEMENTS. All other agreements and covenants referred
to in this Agreement shall have been executed or satisfied by
Seller and the Companies. Seller represents and warrants that
all agreements listed in Schedule 6.5 have been terminated
prior to Closing.
6.6 NO MATERIAL ADVERSE CHANGE. No material adverse change in the
financial condition or prospects of the Companies has occurred
other than changes in the mortgage banking industry generally.
7. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The obligations of Seller to consummate the transactions
described herein and perform its covenants under this Agreement are
subject to the satisfaction, at or before the Closing, of all the
following conditions set forth below in this Section. Seller may waive
any or all of these conditions in whole or in part without prior
notice.
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7.1 PERFORMANCE BY BUYER AND ACQUISITION CORP. Buyer and
Acquisition Corp. shall have performed, satisfied and complied
with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by Buyer and
Acquisition Corp., respectively, on or before the Closing.
7.2 OPINION OF BUYER'S COUNSEL. Seller shall receive from counsel
for Buyer and Acquisition Corp., an opinion, dated the Closing
Date, in form and substance satisfactory to Seller and its
counsel, to the following effect:
a. The Buyer and Acquisition Corp. are each duly
organized, valid and existing in good standing under
the laws of the State of Florida, with full power and
authority to own and or lease their respective
properties and conduct their respective businesses as
now being conducted.
b. Buyer has complete and unrestricted power to sell,
convey, assign, transfer and deliver the shares of
Buyer to Seller required hereunder. The transfer of
Buyer's Common Stock to Seller on the Closing Date
will pass to Seller good, valid and marketable title
to such shares of Buyer, free and clear of all liens,
pledges, options, charges and adverse claims of every
nature whatsoever, and upon delivery of the shares of
Buyer to Seller on the Closing Date pursuant to this
Agreement, Seller will have good, valid and
marketable title to said shares.
c. The execution, delivery and performance of this
Agreement by Buyer and Acquisition Corp. (i) has been
duly authorized by all necessary corporate action on
the part of each corporation, (ii) does not violate
any provision of the law or the articles of
incorporation or by-laws of the Buyer or Acquisition
Corp., and (iii) to the best of such counsel's
knowledge, will not result in a breach in, or cause a
default under, any indenture, agreement or instrument
to which the Buyer or Acquisition Corp. is a party or
is bound.
d. This Agreement has been duly and validly executed and
delivered by Buyer and Acquisition Corp. and is
binding and valid in accordance with its terms,
except as such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally.
e. Except as set forth in this Agreement or in the
Schedules to this Agreement, such counsel does not
know of any suit, action, arbitration or legal,
administrative or other proceeding or governmental
investigation pending or threatened against or
affecting the Buyer or Acquisition Corp., or their
respective businesses or properties.
f. Such counsel does not know of any action, suit,
proceeding or claim pending or threatened against
either the Buyer or Acquisition Corp., their
respective properties or businesses, or the
transactions contemplated by this Agreement, except
as set forth herein.
24
g. No consent, approval or order of any governmental or
administrative board or body is required for the
execution and delivery by the Buyer and Acquisition
Corp. of this Agreement and the merger of Acquisition
Corp. with and into Capital Savings.
h. In rendering the foregoing opinion, such counsel may,
when reasonable, state their opinion on specific
matters of fact to the best of their knowledge, and
to the extent they deem such reliance proper, they
may rely on certificates of public officials and
officers of the Buyer and Acquisition Corp. Copies of
any such certificates shall be delivered to the
Seller and its counsel.
8. DELIVERIES AT CLOSING
The following actions shall take place at the Closing, all of
which shall be deemed to be delivered simultaneously:
8.1 DOCUMENTS DELIVERED BY SELLER. On the Closing Date and at the
Closing, Seller shall deliver or cause to be delivered to
Buyer the following instruments:
a. The shares of capital stock of Capital Savings which
are the subject of this Agreement duly endorsed with
signature guaranteed by a banking institution or a
member firm of the New York Stock Exchange;
b. Such documents, bills of sale, assignments and
consents to assignments, or approvals as are
necessary to effectuate the transfer and assignment
of the assets and contracts of P1anMax, CSCMS and the
contracts of ACM to Buyer free and clear of all
liens, encumbrances or claims by third parties as
more particularly described in this Agreement.
c. The resignations and general releases, as applicable,
of all directors, officers and employees described in
Section 6.2(a).
d. A closing certificate setting forth the name of each
bank in which either of the Companies have an account
and the names of all persons authorized to draw
thereon or who have access thereto.
e. The minute books, stock record books, corporate seals
and other corporate instruments of Capital Savings as
described in Section 6.2(c).
f. The opinion of counsel referred to in Section 6.3.
g. The Plan of Merger executed by Capital Savings.
h. Articles of Merger executed by Capital Savings that
are in form and substance suitable for filing with
the States of Florida and North Carolina.
i. Execution of appropriate financing statements to
perfect the security interest granted pursuant to
Section 1.5(a).
25
8.2 DOCUMENTS DELIVERED BY BUYER. Buyer shall deliver to Seller the
following:
a. The Shares of Common Stock of Buyer as provided by the Plan of
Merger.
b. The opinion of Buyer's counsel referred to in Section 7.2.
c. The Plan of Merger executed by Acquisition Corp. and Buyer.
d. Articles of Merger executed by Acquisition Corp. that are in
form and substance suitable for filing with the States of
Florida and North Carolina.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, AND INDEMNIFICATION
All statements contained in any schedule, document, certificate or
other instrument delivered by or on behalf of any party to this Agreement, or in
connection with the transactions contemplated by this Agreement, shall also be
deemed to be representations and warranties made pursuant to this Agreement,
only limited as specifically provided by the terms hereof. All representations
and warranties shall survive for a period of five (5) years from the Closing
when they shall terminate, unless notice in writing of breach thereof was given
prior to termination, except that representation and warranties for income taxes
set forth in Section 2.18 shall survive until extinguished by the appropriate
statute of limitations period for the tax returns for which such warranties
relate.
9.1 INDEMNIFICATION BY SELLER AND RIGHT OF SET OFF. Seller and
Shareholders of Seller, jointly and severally agree to
indemnify, defend and hold Capital Savings, and Buyer (each an
"Indemnitee") harmless from and against any and all claims,
demands, losses, expenses, costs, obligations, damages,
liabilities, including interest, penalties and reasonable
attorneys fees, (including appellate fees and costs), which
they, or any of them, may incur, suffer or sustain, which
arise, result from or relate to any breach of or failure by
Seller or Shareholders of Seller to perform any of their
representations, warranties, covenants or agreements under
this Agreement or in any Schedule to this Agreement, including
(i) the operation of the Companies' business prior to the
Closing, or (ii) the Companies' federal, state and local
income taxes involving any period of time whatsoever prior to
the Closing, which were not (a) listed or described on the
Schedules and were required to be so listed or described
pursuant to the terms of this Agreement. Buyer shall have the
right to set off as follows: if Buyer pays any amount required
to be paid hereunder, Buyer shall have the right to reduce the
Earnout by the amount paid.
9.2 INDEMNITEE'S PROCEDURE. An Indemnitee shall promptly and
timely notify Seller in writing of the existence of any claim,
liability, suit, demand or other matter to which such
Indemnitee claims indemnification under Section 9.1, including
in such notice reasonable specificity as to the nature and
amount of Indemnitee's claim under such indemnification, and
shall give Seller or Shareholders of Seller,
26
as the case may be, a reasonable opportunity to defend
(including the right to compromise, adjust or settle) the same
at its own expense, with counsel of its own expense, with
counsel of its own selection, in the name of the Companies or
otherwise, as Seller or Shareholders of Seller elect; provided
the Indemnitee, at all times, has the right to participate
fully in the defense at the Indemnitee's own expense. If,
within thirty (30) days or such lesser period of time after
written notice as is specified in such notice and is
reasonable under the circumstances, Seller or Shareholders of
Seller, as the case may be, fail to defend, an Indemnitee has
the right, but not the obligation to undertake the defense of,
and compromise or settle, the claim or other matters on behalf
and for the account and at the risk of Seller or Shareholders
of Seller, if Seller or Shareholders of Seller would have
responsibility to indemnify under this Section. If the claim
is one that cannot by its nature be defended solely by Seller
or Shareholders of Seller without the assistance ofthe
Indemnitee, the Indemnitee shall make available all
information and assistance (at Seller's or Shareholders of
Seller's expense) that Seller or Shareholders of Seller may
reasonably request.
9.3 INDEMNIFICATION BY BUYER. Except as otherwise expressly
provided for in this Agreement and subject to the requirements
of subsection 9.4 and the other conditions and limitations
expressly set forth in this Section 9, Buyer agrees to
indemnify, defend and hold harmless the Seller from and
against any and all claims, demands, losses, expenses, costs,
obligations, damages, liabilities, including interest,
penalties and reasonable attorneys fees, (including appellate
fees and costs), which they, or any of them, may incur, suffer
or sustain, which arise, result from or relate to any breach
of or failure by Buyer to perform any of its representations,
warranties, covenants or agreements under this Agreement or in
any Schedule to this Agreement.
9.4 SELLER PROCEDURE. Seller shall promptly and timely notify
Buyer in writing of the existence of any claim, liability,
suit, demand or other matter to which Seller claims
indemnification under Section 9.3, , including in such notice
reasonable specificity as to the nature and amount of Seller's
claim under Buyer's indemnification, and shall give Buyer a
reasonable opportunity to defend (including the right to
compromise, adjust or settle) the same at its own expense. If,
within thirty (30) days or such lesser period of time after
written notice as is specified in such notice and is
reasonable under the circumstances, Buyer fails to defend,
Seller has the right, but not the obligation to undertake the
defense of, and compromise. or settle, the claim or other
matters on behalf and for the account and at the risk of
Buyer, if Buyer would have responsibility to indemnify under
this Section. If the claim is one that cannot by its nature be
defended solely by Buyer without the assistance of Seller,
Seller shall make available all information and assistance (at
Buyer's expense) that Seller may reasonably request.
10. MISCELLANEOUS
10.1 NO BROKER. Each of the parties represents and warrants that it
has dealt with no broker or finder in connection with any of
the transactions contemplated by this
27
Agreement, and, insofar as it knows, no broker or other person
is entitled to any commission or finders' fee in connection
with any of these transactions.
10.2 EACH PARTY PAYS OWN COSTS. Each of the parties shall pay costs
and expenses incurred or to be incurred by it in negotiating
and preparing this Agreement and in closing and carrying out
the transactions contemplated by this Agreement.
10.3 HEADINGS. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for the purposes
of convenience only and shall not affect the construction or
interpretation of any of its provisions.
10.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter
contained in it and supersedes all prior and contemporaneous
agreements, representations and understandings of the parties.
No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by all of the
parties. No waiver of any of provisions of this Agreement
shall be deemed or shall continue a waiver of any other
provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
10.5 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument.
10.6 CHOICE OF LAW, INTERPRETATION, VENUE, AND ATTORNEY'S FEES. The
interpretation of this agreement shall be governed by the law
of the state of Florida, and venue for any action brought to
enforce or interpret any of the provisions hereof shall be
exclusively in Broward County, Florida and the prevailing
party in any such action shall be entitled to an award of
attorney's fees and court costs.
10.7 SUCCESSORS. This Agreement will be binding upon and will inure
to the benefit of the parties and their respective legal
representatives, heirs, successors and assigns, except as
otherwise expressly otherwise provided herein.
10.8 ASSIGNMENT. Neither Seller or Shareholders of Seller may
assign any of their rights or obligations hereunder to any
other person without the prior written consent of the -Buyer
which may be withheld without regard to reason.
10.9 SEVERABILITY. If any provision of this Agreement, or the
application of a provision to any person or circumstance, is
held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances
other than those to which it is held invalid, will not be
affected thereby.
10.10 PUBLICITY. Without the prior written consent of Buyer, Seller,
Shareholders of Seller, P1anMax, CSCMS and ACM/USA agree not
to disclose the existence of
28
this Agreement to any third party, except for attorneys,
accountants and other representatives employed by such Parties
in connection with this Agreement.
10.11 NO THIRD PARTY RIGHTS. The provisions of this Agreement are
for the exclusive benefit of the parties hereto and no other
party, including without limitation, any creditor of any
party, will have any right or claim by reason of this
Agreement or be entitled to enforce any provision of the
Agreement against any party.
10.12 FREE ACCESS. Between the date of execution hereof and the
Closing Date, Buyers representatives shall be given full
access to the books of account, minute books and reports of
the Companies.
10.13 NOTICES. All notices or other communications to a party
required or permitted by this Agreement will be in writing and
will be hand delivered by messenger or courier services,
tele-communicated, or mailed by registered or certified mail
(postage prepaid) return receipt requested, the party at the
address set forth below. Notices will be effective upon
receipt if delivered by hand or telecommunication, or on the
second day after mailing provided however that if delivery of
a notice is refused, the date of delivery will be the date on
which delivery is refused. Notices will be sent to the
following:
If to Buyer: Xx. Xxxx Xxxxxx, CEO
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000 000 0000
Facsimile: 000 000 0000
With a copy to: Xxxxxxx Xxxxxxx
General Counsel
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000 000 0000
Facsimile: 000 000 0000
If to Seller: Xxxx Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Telephone:
Facsimile:
With a copy to: Xxxxxxx X. Colo, Esq.
Attorney at Law
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Telephone: 000 000 0000
29
Facsimile: 000 000 0000
IN WITNESS WHEREOF, the parties hereto caused their duly authorized
officers to execute this agreement as of the date set forth above.
Xxxxxxxx.xxx, inc.
By: /s/ XXXX XXXXX
--------------------------------
Name: Xxxx Xxxxx
Title: Executive Vice President
MDCM Acquisition Corp.
By: /s/ XXXX XXXXX
--------------------------------
Name: Xxxx Xxxxx
Title: Executive Vice President
CSC Holdings, LLC
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name:
Title:
Capital Savings Company Inc.
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name:
Title:
PlanMax, Inc.
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name:
Title:
CSC Management Services, LLC.
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name:
Title:
30
ACM/USA, Inc.
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name:
Title:
SHAREHOLDERS OF SELLER:
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxxx
By: /s/ XX XXXXXXXXXX
--------------------------------
Name: Xx Xxxxxxxxxx
31
