EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement"), is
entered into as of this 17 day of December 1996, by and among Am-Pac
International, Inc., a Nevada corporation (hereinafter referred to as "Am-Pac");
Am-Pac Investments, Inc., a Florida corporation (hereinafter referred to as
"Investments"); and Xxxxxx Xxxxxxx, an individual, (hereinafter referred to as
"Xxxxxxx.") Xxxxxxx may also be referred to hereafter as the "Shareholder."
Premises
Whereas, Xxxxxxx owns certain real property and improvements described in
Exhibit 1, attached hereto and incorporated herein, (hereinafter referred to as
the "Commercial Lot") and commonly described as 00000 Xxxxxxxx Xxxxx Xxxx,
Xxxxxxx, Xxxxxxx, 00000, which is comprised of approximately 5 acres divided
into three parcels, including a building currently operated by T&P Investments,
Inc. (T&P) as a restaurant/club called the "Frat House;"
Whereas, Xxxxxxx also owns additional land and a residence adjacent to the
Commercial Lot, consisting of approximately three acres, and commonly referred
to as 00000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000 (This real property and all
improvements thereon will hereinafter be referred to as the "Residential Lot,"
and is more particular described in Exhibit 2, attached hereto and incorporated
herein.)
Whereas Am-Pac desires to acquire, and Xxxxxxx wishes to transfer, both the
Commercial Lot and the Residential Lot, collectively referred to as the "Real
Property,"
Whereas this Agreement contemplates that Xxxxxxx will transfer the Real Property
to Investments at or near the time of execution hereof, or as soon thereafter as
practical;
Whereas this Agreement provides for the acquisition by Am-Pac of 100% of the
issued and outstanding shares of Investments in exchange for $1,690,000 worth of
Am-Pac common stock, as defined herein, less the amount of a first lien mortgage
on the Residential Lot and certain title policy costs, on the terms and
conditions hereinafter provided, all for the purpose of effecting a so-called
"tax-free" reorganization pursuant to Sections 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
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ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF INVESTMENTS AND XXXXXXX
As an inducement to, and to obtain the reliance of Am-Pac, Investments and
Xxxxxxx represent and warrant as follows:
Section 1.01 - Organization.Prior to Closing, Investments shall be a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida and shall have the corporate power and be duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets to carry on the business of real estate development and
investment, and shall include qualification to do business as a foreign
corporation in the states or countries in which the character and location of
the assets owned by it or the nature of the business transacted by it required
qualification except where failure to be so qualified would not have a material
adverse effect on its business. Included in the Investments Schedules (as
hereinafter defined) are complete and correct copies of the articles of
incorporation, as amended, and bylaws of Investments as in effect on the date
hereof. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of Investments's articles of incorporation or bylaws. Investments has
taken, or will have taken prior to Closing, all actions required by law, its
articles of incorporation, or otherwise to authorize the execution and delivery
of this Agreement. Investments has, or will have prior to Closing, full power,
authority, and legal right and has, or will have prior to Closing, taken all
action required by law, its bylaws, articles of incorporation, memorandum and
articles of association, and otherwise to consummate the transactions herein
contemplated.
Section 1.02 - Capitalization and Outstanding Shares. The authorized
capitalization of Investments consists or will consist of ________ shares of
stock, par value of $____ per share, of which Xxxxxxx owns or will ______shares,
and which constitutes or shall constitute all of the outstanding and issued
shares of Investments to date of closing. Such shares are legally issued, fully
paid, and non-assessable and not issued in violation of the pre-emptive or other
rights of any person.
Section 1.03 - Subsidiaries and Predecessor Corporations. Investments does
not have any subsidiaries and does not own, beneficially or of record, any
shares of any other corporation.
Section 1.04 - Financial Statements.
(a) As a newly formed company, Investments has no prepared financials.
Investments only assets consist or will consist of the Real Property
to be transferred therein.
(b) Investments has or will have filed all income and/or franchise tax
returns required to be filed by it from inception to the date of
Closing.
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(c) Investments does not or will not owe any unpaid taxes (including
any deficiencies, interest, or penalties) through the date of
execution, for which Investments may be liable in its own right or as
a transferee of the assets of, or as a successor to, any other
corporation or entity.
(d) The books and records, financial and otherwise, of Investments are
in all material respects complete and correct; and Investments hereby
grants Am-Pac the full right of access to any and all of these books
or records.
(e) Investments has or will have good and marketable title to its
assets and, except as described herein, has or will have no material
contingent liabilities, direct or indirect, matured or unmatured.
Section 1.05 - Information. The information concerning Investments set
forth in this Agreement is complete and accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state a
material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 1.06 - Options or Warrants or Subscriptions. There are no existing
options, warrants, calls, subscriptions or commitments of any character relating
to the authorized and unissued Investments common stock, except options,
warrants, calls or commitments, if any, to which Investments is not a party and
by which it is not bound.
Section 1.07 - Absence of Certain Changes or Events. Except as set forth in
this Agreement or the Investments Schedules, since its incorporation:
(a) there has not been or will there be to the Date of Closing (i) any
material adverse change in the business, operations, properties, assets,
or condition of Investments; or (ii) any damage, destruction, or loss to
Investments (whether or not covered by insurance) materially and
adversely affecting the business, operations, properties, assets, or
condition of Investments.
(b) Investments has not or will have not prior to Closing (i) amended
its articles of incorporation or bylaws; (ii) declared or made, or
agreed to declare or make, any payment of dividends or distributions of
any assets of any kind whatsoever to stockholders or purchased or
redeemed, or agreed to purchase or redeem, any of its capital stock;
(iii) waived any rights of value which in the aggregate are
extraordinary or material considering the business of Investments; (iv)
made any material change in its method of management, operation or
accounting; (v) entered into any other material transaction other than
sales in the ordinary course of its business; (vi) made any accrual or
arrangement for payment of bonuses or special compensation of any kind
or any severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its
employees whose monthly compensation exceeds $1,000; or (viii) made any
increase in any profit sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or which its officers, directors, or
employees;
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(c) Except liabilities incurred in the transfer of the Real Property
from Xxxxxxx, Investments has not, nor will it have (i) borrowed or
agreed to borrow any funds or incurred, or become subject to, any
material obligation or liability (absolute or contingent);ordinary
course of business; (ii) paid or agreed to pay any material
obligations or liability (absolute or contingent) other than current
liabilities incurred since that date in the ordinary course of
business and professional and other fees and expenses in connection
with the preparation of this agreement and the consummation of the
transactions contemplated hereby; (iii) sold or transferred, or agreed
to sell or transfer, any of its assets, properties, or rights (except
assets, properties, or rights not used or useful in its business
which, is the aggregate have a value of less than $1,000), or
canceled, or agreed to cancel, any debts or claims (except debts or
claims which in the aggregate are of a value of less than $1,000);
(iv) made or permitted any amendment or termination of any contract,
agreement, or license to which it is a party if such amendment or
termination is material, considering the business or Investments; or
(v) issued, delivered, or agreed to issue or deliver any stock, bonds
or other corporate securities including debentures (whether authorized
and unissued or held as treasury stock); and
(d) to the best knowledge of Investments and Xxxxxxx, Investments has
not become subject to any law or regulation which materially and
adversely affects, or in the future may adversely affect the business,
operations, properties, assets, or condition of Investments.
Section 1.08 - Title and Related Matters. Investments has, or will have
upon Closing, good and marketable title to all of its properties, inventory,
interests in properties, and assets, real and personal, including but not
limited to the Real Property, free and clear of all liens, pledges, charges, or
encumbrances except (a) statutory liens or claims not yet delinquent; (b) such
imperfections of title and easements as do not and will not materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties and (c) as described below.
Section 1.09 - Real Property.
(a) Transfer to Investments. It is the parties intent, and a condition
to the closing herein, that Xxxxxxx transfer the Real Property to
Investments prior to closing, by warranty deed, free and clear of all
encumbrances except a first lien mortgage on the Commercial Lot of
approximately $387,000 held by Xxxxxxx Savings & Loan Mortgage (or
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successor or assign); and a first lien mortgage on Residential Lot of
approximately $55,000, held by Midland Mortgage (or successor or
assign.).
(b) Discharge of first mortgages. In order to discharge either or both
of the first mortgages set forth above, Am-Pac may:
1. Lend Investments, at the rate of ____%, the amount necessary to
discharge the mortgages, estimated to be $387,000, and $55,000,
and in such event shall receive a first lien on the Real Property
in the amount necessary to discharge said mortgages, and all of
the assets and accounts of Investments;
2. Obtain third party financing to discharge both first lien
mortgages on the Real Property, i.e. the Xxxxxxx Savings & Loan
Mortgage, and the Midland Mortgage, and in such event shall have
the right to mortgage the property in favor of the financing
source; or
3. Assume all financial obligations pursuant to both first lien
notes on the Real Property, i.e. held by Xxxxxxx Savings & Loan
Mortgage, and Midland Mortgage.
In any event, Am-Pac shall use its best efforts to relieve Xxxxxxx,
individually from liability under the first lien notes of the Real Property.
(c) Title Policy. Additionally, and regardless of which, if any, of the
above options which Am-Pac may choose to refinance the Real Property,
Xxxxxxx shall provide an Owner's Policy of Title Insurance, or in the
event that Am-Pac opts to refinance through third parties, a Lenders
Policy of Title Insurance, (title policy) issued by an authorized title
company in the amount of at least the appraised value(s), evidencing
clear title to the Real Property, prior to Closing, and which shall be
preceded by a Title Report or Commitment, accompanied by copies of all
recorded documents relating to easements, rights-of-way, etc., affecting
the Real Property. Am-Pac shall give Xxxxxxx written notice on or before
the expiration of ten (10) days after it receives the Title Report or
Commitment that the condition of title as set forth therein is or is not
satisfactory. Therefore, Xxxxxxx and Investments shall promptly
undertake to eliminate or modify all unacceptable matters to the
reasonable satisfaction of Am-Pac. In the event they are unable to do so
within ten (10) days after receipt of written notice, Am-Pac may
terminate this agreement; otherwise, this condition shall be deemed to
be acceptable and any objection thereto shall be deemed to have been
waived for all purposes. The costs of the title report,commitment and
policy shall be paid one-half by Am-Pac and one-half by Xxxxxxx and
deducted from the total amount of consideration provided in Article IV,
i.e. the $1,690,000. Xxxxxxx and Investments hereby authorize and
instruct Am-Pac to deduct such amount from the consideration set forth
in Article IV, issue a corresponding reduced number of Am-Pac shares to
Xxxxxxx, upon Closing.
(d) Parties in PossessionThere are no parties in possession of any
portion of the Real Property as lessees, tenants at sufferance, or
trespassers other than T&P Investments, Inc, which operates a business
known as "the Frat House." A description of T&P's leasehold interest is
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as follows: ___________________________________________.Xxxxxxx agrees
to transfer any such rights as Lessor to Investments prior to closing.
(e) Access. The Real Property has full and free access to and from
public highways, streets or roads and, there is no pending or threatened
governmental proceeding that would impair or result in the termination
of this access.
(f) Litigation or Proceedings. There is no pending or threatened
condemnation or similar proceeding or assessment affecting the Real
Property, or any part thereof, nor is any such proceeding or assessment
contemplated relating to the Real Property, or any part thereof.
Section 1.10 - Litigation and Proceedings. There are no actions, suits,
proceedings, or investigations pending or, to the knowledge of Investments after
reasonable investigation, threatened by or against Investments or affecting
Investments or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. Neither Xxxxxxx nor Investments has any knowledge of any
material default on its part with respect to any judgment, order, injunction,
decree, award, rule, or regulation or any court, arbitrator, or governmental
agency or instrumentality or of any circumstances which, after reasonable
investigation, would result in the discovery of such a default. Additionally,
there are no actions, suits, proceedings, or investigations pending or, to the
knowledge of Xxxxxxx after reasonable investigation, threatened by or against
Xxxxxxx or affecting Xxxxxxx or his properties, at law or in equity, before any
court or other governmental agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind. Xxxxxxx does not have any knowledge of any
material default on his part with respect to any judgment, order, injunction,
decree, award, rule, or regulation or any court, arbitrator, or governmental
agency or instrumentality or of any circumstances which, after reasonable
investigation, would result in the discovery of such a default. Xxxxxxx and
Investments represent and warrant that there are no claims regarding payment on
any of the mortgages described above; and that such mortgages and related notes
are current. However, the parties acknowledge a lawsuit between Xxxx Xxxx Xxxxxx
and T&P Investments, Inc., Cause no. C195/515 in Orange County, Florida,
alleging wrongful death claims. Since T&P investments may have been a lessee of
the Real Property transferred to Investments by Xxxxxxx, the parties, while
denying any and all liability, recognize a potential for premises liability and
other litigation. Because all parties acknowledge the potential cost and
inconvenience involved with litigation, and that a serious potential risk may be
involved, Xxxxxxx and Investments agree that Am-Pac may unilaterally terminate
this contract in accordance with section 4.07(c), after its investigation of the
claims and defenses associated with the Hannah lawsuit.
Section 1.11 - Contracts. There are no material contracts, agreements,
franchises, license agreements, or other commitments to which Investments is a
party or by which it or any of its assets, products, licenses, or properties are
bound other than the mortgages and related documents related to the financing
and leasing of the Real Property described herein.
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Section 1.12 - Material Contract Defaults. Investments is not, nor will it
be at the time of Closing, in default in any material respect under the terms of
any outstanding contract, agreement, lease, or other commitment which is
material to the business, operations properties, assets or condition of
Investments and there is no event of default in any material respect under any
such contract, agreement, lease, or other commitment in respect of which
Investments has not taken adequate steps to prevent such a default from
occurring.
Section 1.13 - No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which Investments
or Xxxxxxx are a party or to which any of their properties or operations are
subject. In the event that the transfer of the Real Property to Investments
constitutes an event of default or triggers any acceleration or "Due on Sale"
clause, Am-Pac may unilaterally terminate this agreement.
Section 1.14 - Governmental Authorizations. Except as set forth in the
Investments Schedules, Investments has or will have upon Closing, all licenses,
franchises, permits, and other governmental authorizations that are legally
required to enable it to conduct its business in all material respects as
conducted, and hold title to the Real Property on the date hereof. Except for
compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Investments of this
Agreement and the consummation by Investments of the transaction contemplated
hereby.
Section 1.15 - Compliance With Laws and Regulations. Investments has
complied with all applicable statues and regulations of any federal, state, or
other governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets, or condition of Investments or except to the
extent that noncompliance would not result in the occurrence of any material
liability for Investments.
Section 1.16 - Approval of Agreement. The board of directors and sole
shareholder of Investments has authorized the execution and delivery of this
Agreement by Investments and has approved the agreement and the transactions
contemplated hereby.
Section 1.17 - Investments Schedules. Within 30 days after execution
hereof, Investments and Xxxxxxx will deliver to Am-Pac the following schedules,
which are collectively referred to as the "Investments Schedules" and which
consist of separate schedules dated as of the date of execution of this
Agreement, all certified by the chief executive officer of Investments as
complete, true, and correct as of the date of this Agreement in all material
respects:
(a) a schedule containing complete and correct copies of the certificate
and articles of incorporation, as amended, and bylaws of Investments in
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effect as of the date of this Agreement;
(b) a schedule containing a list indicating the name and address of each
Shareholder of Investments together with the number of shares owned by
him, her or it;
(c) a schedule containing a description of all property owned by
Investments, and of the Real Property (which include the Commercial and
Residential Lots described above), together with a description of every
mortgage, deed of trust, pledge, lien, agreement, encumbrance, claim, or
equity interest of any nature whatsoever in such real property;
(d) copies of all licenses, permits, and other governmental
authorization (or requests or applications therefor) pursuant to which
Investments carries on or proposes to carry on its business (except
those which, in the aggregate, are immaterial to the present or proposed
business of Investments)
(e) proof, satisfactory to Am-Pac, that the Real Property has been
transferred to Investments,
(f) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the
Investments Schedules by sections 1.01 through 1.17.
Investments shall cause the Investments Schedules and the instruments and
data delivered to Am-Pac hereunder to be updated after the date hereof up to and
including the Closing Date. It is understood and agreed that not all of the
schedules referred to above have been completed or are available to be furnished
by Investments. Investments shall have a period of twenty (30) days after the
date hereof to provide such schedules. If Investments cannot or fails to do so,
or if Am-Pac finds the schedules unacceptable, Am-Pac may terminate this
agreement by giving written notice to Investments within thirty (30) days after
the schedules were due to be produced or were provided.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF THE SHAREHOLDER
As an inducement to, and to obtain the reliance of Am-Pac, Xxxxxxx
additionally, represents and warrants as follows:
Section 2.01 - Ownership of Investments Shares by Xxxxxxx. Xxxxxxx hereby
represents and warrants with respect to himself that he is the legal and
beneficial owner of _____ Investment shares (which constitute 100% of all of
Investments's outstanding shares), free and clear of any claims, charges,
equities, liens, security interests, and encumbrances whatsoever, including but
not limited to any marital or community property interest) and that he has full
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right, power, and authority to transfer, assign, convey, and deliver its
Investments shares; and delivery of such shares at the closing will convey to
Am-Pac good and marketable title to such shares and clear of any claims,
charges, equities, liens, security interests and encumbrances whatsoever.
Section 2.02 - Title to Real Property. Xxxxxxx owns good and marketable
title to the Real Property, excepting the first lien mortgages described in
section 1.09, and shall transfer the Real Property to Investments, subject to
those mortgages, within 30 days from execution hereof by Warranty Deed. Such
transfer will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which Investments
or Xxxxxxx are a party or to which any of their properties or operations are
subject. In the event that the transfer of the Real Property to Investments
constitutes an event of default or triggers any acceleration or "Due on Sale"
clause, Am-Pac may unilaterally terminate this agreement. Additionally, Xxxxxxx
shall provide title policy and the costs associated therewith shall be paid
one-half by Am-Pac and one-half by Xxxxxxx as provided in Section 1.09.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AM-PAC
As an inducement to, and to obtain the reliance of Investments and the
Investments Shareholder, Am-Pac represents and warrants as follows:
Section 3.01 - Organization.Am-Pac is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets to carry on its business in
all material respects as it is now being conducted, and there is no jurisdiction
in which it is not qualified in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification. Included in the Am-Pac Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation of Am-Pac as in
effect on the date hereof. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
violate any provision of Am-Pac's articles of incorporation or bylaws. Am-Pac
has taken all action required by law its articles of incorporation, its bylaws,
or otherwise to authorize the execution and delivery of this Agreement, and
Am-Pac has full power, authority, and legal right and has taken all action
required by law, it articles of incorporation, bylaws, or otherwise to
consummate the transactions herein contemplated.
Section 3.02 - Capitalization. Am-Pac's authorized capitalization consists
of 149,900,000 shares of common stock, and 100,000 shares of Preferred Stock,
par value $.001, of which 406,583 common shares are issued and outstanding. All
issued and outstanding shares are legally issued, fully paid, non-assessable and
not issued in violation of the pre-emptive or other rights of any person.
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Section 3.03 - Subsidiaries and Predecessor Corporation. Am-Pac
International is a newly formed company whose sole purpose was to merge with
Captain Tony's Pizza, Inc., (Captain Tony's) a New York Company whose
shareholders and directors elected to reincorporate in the state of Nevada.
Articles of Merger have been, or are concurrently being filed with the
appropriate state authorities. Pursuant to the plan of merger, Am-Pac shall
succeed to all the assets and liabilities of Captain Tony's. Am-Pac owns one
subsidiary, Leisureshare International Limited,. a British Virgin Island company
which is currently negotiating an acquisition with a Spanish land development
company. In the event that the acquisition of the Spanish company is
consummated, Am-Pac will be obligated to issue approximately 16,000 Series A
Convertible Preferred Shares, which shall be convertible at a rate of one
preferred share for 500 common shares, and approximately 2,500,000 shares of
Am-Pac common stock. Additionally, Captain Tony's executed an Acquisition
Agreement with the Shareholders of Pacific Foods Limited, a BVI corporation, to
acquire all of the shares of that company. Pursuant to that agreement, Am-Pac is
obligated to issue 7,000,000 shares of its common stock to the Pacific Foods
shareholders; and Xxxxxxx Xxxxxxxx is granted an option to purchase an 100,000
shares of Am-Pac common stock. Am-Pac is negotiating with Xxxxxxxx for an option
to purchase another 250,000 shares.
Section 3.04 - Financial Statements.
(a) Included in the Am-Pac Schedule are the audited balance sheets of
its predecessor company Captain Tony's Pizza, Inc. as of December 31,
1995, and the related audited statements of operations, stockholders'
equity and changes in financial position for the fiscal year ended
December 31, 1995, together with the notes to such statements and the
opinion of certified public accountants. Also included are Captain
Tony's most recently prepared quarterly report.
(b) All such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved. The Am-Pac balance sheets present
fairly as of their respective dates the financial condition of Am-Pac.
Am-Pac did not have as of the date of any such Am-Pac balance sheet,
except as and to the extent reflected or reserved against therein, any
liabilities or obligations (absolute or contingent) which should be
reflected in a balance sheet or the notes thereto. All assets
reflected therein are properly reported and present fairly the value
of the assets of Am-Pac, in accordance with generally accepted
accounting principles. The statements of operations, stockholders'
equity and changes in financial position reflect fairly the
information required to be set forth therein by generally accepted
accounting principles.
(c) Am-Pac has no liabilities with respect to the payment of any
federal, state, county local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(d) Am-Pac has filed all state, federal or local income and/or
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franchise tax returns required to be filed by it from inception to the
date hereof. None of such federal income tax returns have been
examined by the Internal Revenue Service. Each of such income tax
return reflects the taxes due for the period covered thereby, except
for amounts which, in the aggregate, are immaterial.
(e) Am-Pac's books and records, are in all material aspects complete,
correct and have been maintained in accordance with good business and
accounting practices.
Section 3.05 - Information. The information concerning Am-Pac set forth in
this Agreement and the Am-Pac Schedules is complete and accurate in all material
respects and does not contain any untrue statements of a material fact or omit
to state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 3.06 - Opinions or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued stock of Am-Pac, except options, warrants, calls or commitments, if
any, to which Am-Pac is not a party and by which it is not bound.; and the
obligations described herein.
Section 3.07 - Title and Related Matters. Am-Pac has good and marketable
title to all of its properties, inventory, interest in properties, and assets,
real and personal, which are reflected in Am-Pac's most recent balance sheet or
acquired after that date (except properties, interest in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business), free and clear of all liens, pledges, charges, or encumbrances except
(a) statutory liens or claims not yet delinquent; (b) such imperfections of
title and easements as do not and will not materially detract from or interfere
with the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; (c) as described in the Am-Pac Schedules.
Section 3.08 - Litigation and Proceedings. Am-Pac is involved as a
defendant in litigation with a plaintiff in Cleveland Ohio regarding claims in
excess of $25,000.
Section 3.09 - Compliance With Laws and Regulations. To the best of its
knowledge, Am-Pac has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or conditions of Am-Pac or
except to the extent that noncompliance would not result in the occurrence of
any material liability, except certain filing reports with the Securities and
Exchange Commission, as noted in the attached schedules.
Section 3.10 - Approval of Agreement. The board of directors of Am-Pac has
authorized the execution and delivery of this Agreement by Am-Pac and has
approved this Agreement and the transactions contemplated hereby.
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Section 3.11 - Continuity of Business Enterprises. Am-Pac has no commitment
or present intention to liquidate Investments or sell or otherwise dispose of a
material portion of Investments's business or assets following the consummation
of the transactions contemplated hereby.
Section 3.12 - Am-Pac Schedules. Am-Pac has delivered to Investments the
following schedules, which are collectively referred to as the "Am-Pac
Schedules" and which consist of separate schedules, which are dated the date of
this Agreement, all certified by the chief executive officer of Am-Pac to be
complete, true, and accurate:
(a) a schedule containing complete and accurate copies of the articles of
incorporation of Am-Pac as in effect as of the date of this Agreement;
(b) a schedule containing a complete and accurate copy of the Am-Pac
quarterly report on Form 10QSB for the three month period ending September
30, 1996, including the unaudited financial statements identified in
section 3.04(a)
(c) a schedule containing a copy of the Am-Pac annual report on Form 10-KSB
for the year ended December 31, 1995 which complies in all material
respects with the applicable requirements of the Securities Act of 1934, as
amended;
(d) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed to the Exchange in
the Am-Pac Schedules by Article III.
Am-Pac shall cause the Am-Pac Schedules and the instruments and data
delivered to Investments hereunder to be updated after the date hereof up to and
including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by Am-Pac. Am-Pac shall
have a period of twenty (20) days after the date hereof to provide such
schedules. If Am-Pac cannot or fails to do so, or if Investments finds the
schedules unacceptable, and after Investments gives Am-Pac written notice of
such failure or unacceptability and a 10 day period to cure, Investments may
terminate this agreement by giving written notice to Investments within thirty
(30) days after the schedules were due to be produced or were provided.
ARTICLE IV
PLAN OF EXCHANGE
Section 4.01 - The Exchange. Only after the Real Property has been
transferred to Investments, subject to the satisfaction of Am-Pac, and on the
terms and subject to the conditions set forth in this Agreement, Xxxxxxx hereby
agrees to assign, transfer, and deliver to Am-Pac, free and clear of all liens,
pledges, encumbrances, charges, restrictions or known claims of any kind,
nature, or description, the following number of shares of common stock of
12
Investments: ____ shares from Xxxxxxx, constituting 100% of the issued and
outstanding shares of common stock of Investments, and Am-Pac agrees to acquire
such shares on such date by issuing and delivering in exchange therefor shares
of Am-Pac restricted common stock, par value $.001, in the amount of $1,690,000
less: (1) the amount of the first lien mortgage on the Residential Lot at
Closing, (2)one- half the amount of the title report and policy pursuant to
section 1.09, and (3) $100,000 in Finders Fees as set forth in section 4.06,
worth of such shares as follows:
The number of Am-Pac shares to be received shall be determined by dividing
the dollar number by the Market Price at which Am-Pac shares are trading. Market
Price is defined as the average of the closing bid and ask prices of the Am-Pac
common stock for the five consecutive trading days immediately prior to the
Closing Date as reported by NASDAQ.
The $1,690,000, less (1) the amount of the first lien mortgage on the
Residential Lot at Closing, (2)one-half the amount of the title report and
policy pursuant to section 1.09, and (3) $100,000 in Finders Fees as set forth
in section 4.06, worth of Am-Pac shares to be received in accordance herewith
shall be referred to as the "Exchanged Am-Pac Stock." At the Closing, Xxxxxxx
shall, on surrender of its certificate or certificates, representing such 100%
of Investments shares to Am-Pac, be entitled to receive a certificate or
certificates evidencing $1,690,000 less (1) the amount of the first lien
mortgage on the Residential Lot at Closing, (2) the amount of the title report
and policy pursuant to section 1.09, and (3) $100,000 in Finders Fees as set
forth in section 4.06 by Am-Pac, worth of Am-Pac stock as determined in
accordance with this section 4.01.
Section 4.02 - Registration Rights.If at any time after the Closing Date,
Am-Pac files a registration statement (the "Registration Statement") with
respect to the sale of any of its shares of Common Stock, the Company shall give
written notice thereof to Xxxxxxx. If Xxxxxxx shall propose to offer or sell up
to $250,000 worth of his Exchanged Am-Pac Stock, (the number of such shares
shall be determined by dividing the dollar amount by the market price defined in
section 4.01), under circumstances requiring registration, Xxxxxxx may, within
ten days after the date of its receipt of such notice from Am-Pac, request in
writing that Am-Pac include in the Registration Statements shares of the
Company's stock proposed to be offered or sold by Xxxxxxx, which shall not
exceed the value of $250,000, as described herein, (hereinafter referred to as
the "Offered Securities") and Am-Pac shall use its best efforts to include the
Offered Securities in the registration.
Section 4.03 - Private Offering. If at any time for a period of one year
from the date of execution hereof, Am-Pac completes a Private Offering Placement
in excess of $2,500,000, then for a period not to exceed 30 days from the
receipt of the $2,500,000, Xxxxxxx shall have an option to exchange $250,000
worth of his Exchanged Am-Pac shares (the number of such shares shall be
determined by dividing the dollar amount by the market price defined in section
4.01) for $250,000 cash.
Section 4.04 - Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time and place as
the parties may mutually agree ("Closing Date".)
13
Section 4.05 - Closing Events. At the Closing, each of the respective
parties hereto shall execute, acknowledge, and deliver (or shall ensure to be
executed, acknowledged, and delivered) any and all certificates, opinions,
financial statements, schedules, agreements, resolutions, ruling or deeds or
other instruments required by this Agreement to be so delivered at or prior to
the Closing, together with such other items as may be reasonably requested by
the parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby. A Title policy shall issue as
provided herein.
Section 4.06 - Finder's Fees. Xxxxxxx agrees to pay a finder's fee to Xxxx
Xxxxxx and Xxxx Xxxxxx as follows: Upon closing, Xxxxxxx authorizes Am-Pac to
reduce the total number of shares which he is to receive under this agreement by
$50,000 worth and to issue such $50,000 worth of its common stock, the total
number of which shall be determined by dividing $50,000 by the market price as
defined in section 4.01, to Xxxx Xxxxxx. Additionally, Xxxxxxx authorizes Am-Pac
to reduce the total number of shares which he is entitled to receive under this
agreement by another $50,000 worth, and to issue such $50,000 worth of its
common stock, the total number of which shall be determined by dividing $50,000
by the market price as defined in section 4.01 to Xxxx Xxxxxx. All shares issued
pursuant to this section shall be restricted and bear a restrictive legend as
required by Am-Pac.
Section 4.07 - Termination.
(a) This Agreement may be terminated by the board of directors of either
Am-Pac or Investments at any time prior to the Closing Date if:
(i) there shall be any additional, i.e. actual or threatened action or
proceeding before any court or any governmental body which has not
been disclosed in this agreement and which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this
Agreement and which, in the judgment of such board of directors, made
in good faith and based upon the advice of its legal counsel, makes it
inadvisable to proceed with the exchange contemplated by this
Agreement;
(ii) any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate such
transactions or in the judgment of such board of directors, made in
good faith and based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will be
obtained only on a condition or conditions which would be unduly
burdensome, making it inadvisable to proceed with the exchange; or
(iii) there shall have been any change in the latest balance sheets of
Am-Pac, in the assets, properties, business, or financial condition of
14
Am-Pac, which could have a materially adverse affect on the value of
the business of Am-Pac, except any changes disclosed in the Am-Pac
Schedules, as the case may be, dated as of the date of the execution
of this Agreement; or
(iv) there shall have been any change in the assets, properties,
business, or financial condition of Investments, which could have a
materially adverse affect on the value of the business of Investments,
except any changes disclosed in the Investments Schedules, as the case
may be, dated as of the date of the execution of this Agreement; or
(v) the Board of Directors of Am-Pac or Investments or the Shareholder
determine in good faith that a condition to closing has not occurred
In the event of termination pursuant to this paragraph (a) of Section 4.06,
no obligation, right or liability shall arise hereunder, and each party shall
bear all of the expenses incurred by it in connection with the negotiation,
drafting, and execution of this Agreement and the transactions herein
contemplated.
(b) This Agreement may be terminated at any time prior to the Closing by
action of the board of directors of Am-Pac, if Investments or Xxxxxxx shall
fail to comply in any material respect with any of their covenants or
agreements contained in this Agreement or if any of the representations or
warranties of Investments or Xxxxxxx contained herein shall be inaccurate
in any material respect, including but not limited to:
(1) the real property to be transferred to Investments pursuant to
this agreement, shall be found to have additional encumbrances
other then those contemplated by this agreement; or
(2) a title policy shall fail to issue covering such real property.
If this Agreement is terminated pursuant to this paragraph (b) of Section
4.06, this Agreement shall be of no further force or effect, and no
obligation, right or liability shall arise hereunder, except that
Investments and Xxxxxxx shall bear their own costs as well as the
reasonable costs of Am-Pac in connection with the negotiations,
preparation, and execution of this Agreement, and matters connected
therewith; and qualifying the offer and sale of securities contemplated
hereby for execution from the registration requirements of state and
federal securities laws.
(c) The Board of Directors of Am-Pac may unilaterally terminate this
contract if in their sole judgment, they determine that the potential
liability of Investments in conjunction with the litigation involving Page
Hannah, and/or wrongful death claims does not justify the economic risk of
Am-Pac's investing in Investments. In the event of termination pursuant to
15
this paragraph (c) of Section 4.06, no obligation, right or liability shall
arise hereunder, and each party shall bear all of the expenses incurred by
it in connection with the negotiation, drafting, and execution of this
Agreement and the transactions herein contemplated.
(d) This Agreement may be terminated at any time prior to the Closing by
action of the board of directors of Investments or by the Shareholder if
Am-Pac shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of Am-Pac contained herein shall be
inaccurate in any material respect. If this Agreement is terminated
pursuant to this paragraph (d) of Section 4.06, this Agreement shall be of
no further force or effect, and no obligation, right or liability shall
arise hereunder, except that Am-Pac shall bear its own costs as well as the
reasonable costs of Investments incurred in connection with the
negotiation, preparation and execution of this Agreement.
ARTICLE V
SPECIAL COVENANTS
Section 5.01 - Access to Properties and Records. Am-Pac and Investments
will each afford to the officers and authorized representatives of the other
full access to the properties, books and records of Am-Pac or Investments as the
case may be, in order that each may have full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other,
and each will furnish the other with such additional financial and operating
data and other information as to the business and properties of Am-Pac or
Investments, as the case may be, as the other shall from time to time reasonably
request.
Section 5.02 - Delivery of Books and Records. At the Closing, Investments
shall deliver to Am-Pac the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of Investments now
in the possession of Investments or its representatives.
Section 5.03 - Special Covenants and Representations Regarding the
Exchanged Am-Pac Stock. The consummation of this Agreement and the transactions
herein contemplated, including the issuance of the Exchanged Stock to the
Shareholder of Investments as contemplated hereby, constitutes the offer and
sale of securities under the Securities and Exchange Act and applicable state
statutes. Xxxxxxx acknowledges that the shares of Am-Pac to be delivered to him
pursuant to this Agreement have not been registered under the Securities Act of
1993 as amended, referred to in this Agreement as the "Securities Act," or the
laws of any other jurisdiction, and that therefore the stock is not fully
transferable except as permitted under various exemptions, if any contained in
the Securities Act and the rules of the Securities and Exchange Commission
interpreting the act. Under US law, Am-Pac Common Stock cannot be sold or
transferred by the shareholder unless they are subsequently registered under
applicable law or an exemption from registration is available. Am-Pac is not
required to register or assist in the registration of the Am-Pac Common Stock
except as provided in section 4.02 or to make any exemption from registration
16
available. The provisions contained in this paragraph are intended to ensure
compliance with the Securities Act.. Xxxxxxx represents and warrants to Am-Pac
that he is acquiring the shares of Am-Pac common stock under this Agreement for
his own account for investment, and not for the purpose of resale or any other
distribution of such shares. Xxxxxxx also represents and warrants that he has no
present intention of disposing of all or any part of such shares at any
particular time, for any particular price or on the happening of any particular
circumstances. Xxxxxxx further represents that he has such knowledge and
experience in financial and business matters that he is capable of evaluating
the merits and risks of an investment in Am-Pac. Xxxxxxx acknowledges that
Am-Pac is relying on the truth and accuracy of these warranties and
representations in issuing the shares without first registering the shares under
the Securities Act. Xxxxxxx covenants and represents that none of the shares of
Am-Pac capital stock to be issued to him pursuant to this Agreement, will be
offered, sold, assigned, pledged, transferred, or otherwise disposed of except
after full compliance with all of the applicable provisions of the 1933 act and
the rules and regulations of the Securities and Exchange Commission under the
1933 act. Therefore Xxxxxxx agrees not to sell or otherwise dispose of any of
the shares of Am-Pac common stock received pursuant to this agreement unless
such is done pursuant to section 4.02 or Xxxxxxx: 1. has delivered to Am-Pac a
written legal opinion in form and substance satisfactory to counsel for Am-Pac
to the effect that the disposition is permissible under the terms of the
Securities Act and regulations interpreting the act; 2. has complied with the
registration and propectus requirements of the 1933 act relating to such
disposition; or 3. has presented Am-Pac satisfactory evidence that such a
disposition is exempt from registration under the act. Am-Pac shall place a stop
transfer order against transfers of shares until one of the conditions set forth
in this paragraph have been met. Furthermore Xxxxxxx agrees that the
certificates evidencing the shares that he will receive under this agreement
will contain the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR INVESTMENT. THE SECURITIES
MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS A REGISTRATION STATEMENT UNDER THE
FEDERAL SECURITIES ACT OF 1933, AS AMENDED IS IN EFFECT FOR THE SECURITIES, OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS IN FACT
APPLICABLE TO SUCH OFFER OR SALE, AND SUCH EXEMPTION IS EVIDENCED BY AN OPINION
OF COUNSEL SATISFACTORY TO THE ISSUER.
Section 5.04 Short Positions Prohibited. For a period beginning from the
closing date and ending on the second anniversary of the closing date neither
Xxxxxxx nor any of his affiliates, subsidiaries, officers, directors or agents,
shall directly or indirectly maintain, or assist in maintaining any short
position in the securities of Am-Pac.
Section 5.05 - Third Party Consents and Certificates. Am-Pac and
Investments agree to cooperate with each other in order to obtain any required
third party consents to this Agreement and the transactions herein and therein
contemplated.
17
Section 5.06 - Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing Date and
except as set forth in the Am-Pac or Investments Schedules or as
permitted or contemplated by this Agreement, Am-Pac, Investments and
Xxxxxxx, respectively, will each:
(i) carry on their business in substantially the same manner as
they had heretofore;
(ii) maintain and keep their properties in states of good repair
and condition as at present, except for depreciation due to
ordinary wear and tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by them
including sufficient insurance to cover the Real Property and the
improvements thereon;
(iv) perform in all material respects all of their obligations
under material contracts, leases, and instruments relating to or
affecting their assets, properties, and business;
(v) use their best efforts to maintain and preserve their
business organization intact, to retain its key employees, and to
maintain its relationship with its material suppliers and
customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on them by all federal and state
laws and all rules, regulations, and orders imposed by federal or
state governmental authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither Am-Pac, Xxxxxxx nor Investments will:
(i) make any changes in their articles of incorporation or
bylaws;
(ii) take any action described in Section 1.07 in the case of
Investments, or in Section 3.07, in the case of Am-Pac (except as
permitted therein or as disclosed in the applicable party's
schedules); or
(iii) enter into or amend any contract, agreement, or other
instruments of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary course
of business involving the sale of goods or services; and Am-Pac
may execute the exchange agreement with the Spanish development
company referenced herein and may continue to negotiate and seek
opportunities to acquire business, and enter contracts
accordingly.
18
Section 5.07 - Sales Under Rule 144 or 145, if Applicable.
(a) Am-Pac will use its best efforts to at all times comply with the
reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and NASD, including timely filing of all periodic
reports required under the provisions of the Exchange Act and the rules and
regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding restricted
stock of Am-Pac as of the date of this Agreement that such person intends
to sell any shares under Rule 144 or Rule 145 promulgated under the
Securities Act (including any rule adopted in substitution or replacement
thereof), Am-Pac will certify in writing to such person that it has filed
all of the reports required to be filed by it under the Exchange Act to
enable such person to sell such person's restricted stock under Rule 144 or
145, as may be applicable in the circumstances, or will inform such person
in writing that it has not filed any such report or reports.
(c) If any certificate representing any such restricted stock is presented
to Am-Pac's transfer agent for registration of transfer in connection with
any sale theretofore made under Rule 144 or 145, provided such certificate
is duly endorsed for transfer by the appropriate person(s) or accompanied
by a separate stock power duly executed by the appropriate person(s) in
each case with reasonable assurances that such endorsements are genuine and
effective, and is accompanied by an opinion of counsel satisfactory to
Am-Pac and its counsel that stock transfer has complied with the
requirements of Rule 144 or 145, as the case may be, Am-Pac will promptly
instruct its transfer agent to register such shares and to issue one or
more new certificates representing such shares to the transferee and, if
appropriate under the provisions of Rule 144 or 145, as the case may be,
free of any stop transfer order or restrictive legend. The provisions of
this Section 5.07 shall survive the Closing and the consummation of the
transactions contemplated by this Agreement.
Section 5.08 - Indemnification.
(a) Investments and Xxxxxxx hereby agree to indemnify Am-Pac and each of
the officers, agents and directors of Am-Pac as of the date of execution of
this Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they may
become subject arising out of or based on any inaccuracy appearing in or
misrepresentations made under Articles I and II of this Agreement.
Additionally, if any government authority shall tax the transfer of the
19
Real Property from Xxxxxxx to Investments, Xxxxxxx agrees to promptly pay
such tax and shall indemnify and hold Am-Pac and Investments harmless from
any liability resulting from said transfer. The indemnification provided
for in this paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement.
(b) Am-Pac hereby agrees to indemnify Investments and each of the officers,
agents, and directors of Investments as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they may
become subject arising out of or based on any inaccuracy appearing in or
misrepresentation made under Article III of this Agreement. The
indemnification provided for in this paragraph shall survive the Closing
and consummation of the interactions contemplated hereby and termination of
this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF AM-PAC
The obligations of Am-Pac under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 6.01 - Accuracy of Representations. The representations and
warranties made by Investments and the Investments Shareholder in this Agreement
were true when made and shall be true at the Closing Date with the same force
and effect as if such representations and warranties were made at and as of the
Closing Date (except for changes therein permitted by this Agreement),
Investments and the Investments Shareholder shall have performed or complied
with all covenants and conditions required by this Agreement to be performed or
complied with by Investments and the Investments Shareholder prior to or at the
Closing. Am-Pac shall be furnished with a certificate, signed by a duly
authorized executive officer of Investments and dated the Closing Date, to the
foregoing effect.
Section 6.02 - Officer's Certificate. Am-Pac shall have been furnished with
a certificate dated the Closing Date and signed by a duly authorized officer of
Investments to the effect that no litigation, proceeding, investigation, or
inquiry is pending, or to the best knowledge of Investments threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement, or, to the extent not disclosed in
the Investments Schedules, by or against Investments, which might result in any
material adverse change in any of the assets, properties, business, or
operations of Investments.
Section 6.03 - No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business, or operations of Investments nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
20
adverse change in the financial condition, business or operations of
Investments.
Section 6.04 - Good Standing. Am-Pac shall have received a certificate of
good standing from the Secretary of the State of Florida, dated as of a date
within ten days prior to the Closing Date certifying that Investments is in good
standing as a corporation in Florida.
Section 6.05 - Real estate. Am-Pac shall have received satisfactory
verification, that the Real Property has been transferred to Investments, in
accordance with this agreement, and that such Real Property, shall be subject
only to the first liens described in section 1.09. Am-Pac shall likewise have
received evidence that the lease agreement with T&P shall also have been
transferred to Investments. Subsequent to the transfer to Investments, and
before Closing, Am-Pac shall have received a title commitment ensuring good and
marketable title to the Real Property.
Section 6.06 - Other Items.
(a) Am-Pac shall have received a Shareholder list of Investments containing
the name, address, and number of shares held by each Investments
Shareholder, certified by an executive officer of Investments as being
true, complete and accurate,
(b) Am-Pac shall have received such further documents, certificates or
instruments relating to the transactions contemplated hereby as Am-Pac may
reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF INVESTMENTS
AND THE INVESTMENTS SHAREHOLDERS
The obligations of Investments and the Investments Shareholder under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 7.01 - Accuracy of Representations. The representations and
warranties made by Am-Pac in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Am-Pac shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Am-Pac prior to or at the Closing,
Investments shall have been furnished with a certificate, signed by a duly
authorized executive officer of Am-Pac and dated the Closing Date, to the
foregoing effect.
Section 7.02 - Officer's Certificate. Investments shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
executive officer of Am-Pac, to the effect that no litigation, proceeding,
investigation or inquiry is pending, other than those disclosed herein, or to
the best knowledge of Am-Pac threatened, which might result in an action to
21
enjoin or prevent the consummation of the transactions contemplated by this
Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 - Brokers. Am-Pac, Xxxxxxx and Investments agree that there
were no finders or brokers involved in bringing the parties together or who were
instrumental in the negotiation, execution or consummation of this Agreement,
other than Xxxx Xxxxxx and Xxxx Xxxxxx.
Section 8.02 - Governing Law. This Agreement shall be governed by, enforce,
and construed under and in accordance with the laws of the United States of
America and, with respect to the matters of state law, with the laws of Florida.
Section 8.03 - Notices. Any notice or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Am-Pac, to: Xxxxxx Xxxxxx.
000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxxx 00000
With copies to: Vanderkam and Xxxxxxx
Xxxx Xxxxxxxxx
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to Investments, toAm-Pac Investments Corp.
Xxxxxx Xxxxxxx
00000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxx 00000
If to Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx: 00000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
Section 8.04 - Attorney's Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorney's
fees, incurred in connection therewith and in enforcing or collecting any
22
judgment rendered therein.
Section 8.05 - Confidentiality. Each party hereto agrees with the other
parties that, unless and until the transactions contemplated by this Agreement
have been consummated, it and its representatives will hold in strict confidence
all data and information obtained with respect to another party or any
subsidiary thereof from any representative, officer, director or employee, or
from any books or records or from personal inspection, as such other party, and
shall not use such disclosure data or information or disclose the same to
others, except (i) to the extent such data or information is published, is a
matter of public knowledge, or is required by law to be published; and (ii) to
the extent that such disclosure data or information must be used or disclosed in
order to consummate the transactions contemplated by this Agreement. In the
event of the termination of this agreement, each party shall return to the other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, workpapers, abstracts or other materials
relating thereto, and each party will continue to comply with the
confidentiality provisions set forth herein.
Section 8.06 - Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 8.07 - Third Party Beneficiaries. This contract is strictly between
Am-Pac and Investments, and the Investments Shareholder and, except as
specifically provided, no director, officer, stockholder, employee, agent,
independent contractor or any other person or entity shall be deemed to be a
third party beneficiary of this Agreement.
Section 8.08 - Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof.
Section 8.09 - Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of three
months. All rights and obligations under this entire agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators and
assigns of the parties.
Section 8.10 - Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 8.11 - Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may enforced concurrently herewith, and no waiver by
any party of the performance of any obligation by the other shall be construed
as a waiver of the same of any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this Agreement may
by amended by a writing signed by all parties hereto, with respect to any of the
23
terms contained herein, and say term or condition of this Agreement may be
waived or the time for performance may be extended by a writing signed by the
party or parties for whose benefit the provision in intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be extended by their respective officers, hereunto duly authorized, as of the
date first-above written.
ATTEST: Am-Pac International, Inc..
/s/ illegible /s/ illegible
------------------- -----------------------
Secretary or Assistant Secretary By: Xxxxxx Xxxxxx
/s/ Xxxxx Xx President
-------------------
Xxxxx Xx
ATTEST: Am-Pac Investments, Inc.
/s/ illegible /s/ Xxxxxx Xxxxxxx
--------------------- ------------------------
Secretary of Assistant Secretary By: Xxxxxx Xxxxxxx
President
The Investments Shareholder
/s/ Xxxxxx Xxxxxxx
-------------------------
Xxxxxx Xxxxxxx
24
State of FLORIDA }
}
County of ORANGE }
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, for the
above stated purposes by Xxxxxx Xxxxxxx, the President and/or Promoter of Am-Pac
Investments, Inc., to certify which witness my hand and seal of office on this
the 17th of December, 1996.
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Notary Public in and for the
State of Florida
Commission #CC452632
Expires April 13, 1999
State of FLORIDA }
}
County of ORANGE }
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, for the
above stated purposes by Xxxxxx Xxxxxx, the President of "Am-Pac", to certify
which witness my hand and seal of office on this the 17th of December, 1996.
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Notary Public in and for the
State of Florida
Commission #CC452632
Expires April 13, 1999
State of FLORIDA }
}
County of ORANGE }
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, for the
above stated purposes by Xxxxxx Xxxxxxx, to certify which witness my hand and
seal of office on this the 17th of December, 1996.
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Notary Public in and for the
State of Florida
Commission #CC452632
Expires April 13, 1999
25
EXHIBIT 1
Legal Description of all Real Property and improvements commonly described as
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxx Xxxxxxx 00000, including but not limited to
the Commercial Lot
26
EXHIBIT 2
Legal Description of all Real Property and improvements commonly described as
00000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000, including but not limited to
the Residential Lot
27
