EXHIBIT 1
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement") is dated as of October __,
1996, by and between Zentex Corporation, a Delaware corporation (the "Company"),
and Xxxxx Xxxxxxx ("Xxxxxxx"), on the one hand; and The Brighton Industries
Corporation, a Delaware corporation, and Brighton Electronics Corporation, Ltd.,
a Hong Kong corporation (collectively, the "Brighton Group"), and Kit Kung and
Hong Yun, as all the shareholders of the Brighton Group (collectively the
"Brighton Shareholders"), on the other hand.
RECITALS
WHEREAS, the Brighton Shareholders own all of the issued and outstanding
capital stock of the Brighton Group (the "Brighton Shares");
WHEREAS, the Company desires to acquire all of the Brighton Shares (the
"Acquisition"), and the Brighton Shareholders desire to exchange all of the
Brighton Shares for new shares in the Company on the terms and conditions set
forth herein;
WHEREAS, the Company is presently engaged in a private placement (the
"Private Placement") pursuant to the sale to accredited investors of an
aggregate of 100,000 shares of its Common Stock (the "Private Placement Shares")
for $500,000 (the "Private Placement Purchase Price");
WHEREAS, the parties' interest in consummating the Acquisition is
conditioned in part upon the Brighton Shareholders' approval of the divestiture,
immediately after consummation of the Acquisition, of the Company's current
business assets and operations in exchange for the assumption of all liabilities
and indemnification coverage, in accordance with the terms and conditions set
forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representation and warranties
hereinafter set forth, the parties agree as follows:
1. EXCHANGE OF THE SHARES AND CONSIDERATION
1.1. SHARES BEING EXCHANGED. Effective at the closing of this
Agreement (the "Closing"), and subject to the terms and conditions of this
Agreement. the Brighton Shareholders shall assign, transfer and deliver to
the Company all of the Brighton Shares.
1.2. CONSIDERATION. Subject to the terms and conditions of this
Agreement, and in consideration of the assignment and delivery of the
Brighton Shares to the Company, the Company shall at Closing issue to the
Brighton Shareholders and/or their designees as set forth on Schedule 1.2,
27,000,000 shares of the Common Stock of the Company (the "Company Shares")
which shall represent 87.625% of all issued and outstanding stock in the
Company on a fully diluted basis and the issuance of the Company Shares, the
Private Placement Shares and all consultant and other shares to be issued on
behalf of the Company in connection with the Acquisition.
1.3. CLOSING. The Closing of the Acquisition and other transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Loeb & Loeb LLP, 0000 Xxxxxxxx Xxxx., Xxx Xxxxxxx, XX 00000, or other such
place as mutually agreed upon, on or before October 21, 1996.
1.4. METHOD OF CLOSING. The method of closing shall require the
parties to satisfy the conditions specified in Section 6.
2. REPRESENTATIONS AND WARRANTIES OF THE BRIGHTON GROUP AND THE BRIGHTON
SHAREHOLDERS
2.1. ORGANIZATION. The Brighton Industries Corporation ("BIC") is a
corporation duly organized, validly existing, and in good standing under the
laws of Delaware. Brighton Electronics Corporation Ltd. ("BEC") is a
corporation duly organized, validly existing, and in good standing under the
laws of Hong Kong. Each of BIC and BEC and their consolidated subsidiaries
have the corporate power and authority to carry on their business as
presently conducted; and each of BIC and BEC and their consolidated
subsidiaries are qualified to do business in all jurisdictions where the
failure to be so qualified would have a material adverse effect on their
business.
2.2. CAPITALIZATION.
(a) All of the issued and outstanding shares of each of BIC and
BEC are duly authorized, validly issued, fully paid and nonassessable. The
Brighton Shares being transferred to the Company pursuant to Section 1.1 hereof
constitute all of the issued and outstanding capital stock of all classes of
each of BIC and BEC, are free from any claims, liens or other encumbrances, and
the Brighton Shareholders are the sole owners thereof, have good title thereto,
and the unqualified right to transfer and dispose of such shares.
(b) There are no outstanding options, warrants, or rights to
purchase any securities of BIC and BEC.
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2.3. SUBSIDIARIES AND INVESTMENTS. Except as set forth in Schedule 2.3,
the Brighton Group does not own any capital stock or have any interest in any
corporation, partnership, or other form of business organization.
2.4. FINANCIAL STATEMENTS. The Brighton Group has provided financial
statements for each of BEC and BIC consisting of (a) an unaudited
consolidated Balance Sheet as of June 30, 1996 and consolidated Statement of
Income for BEC for the six months ended June 30, 1996, as reviewed by BDO
Binder, Hong Kong, and (b) an unaudited Balance Sheet as of June 30, 1996 and
Statements of Retained Earnings, Income and Cash Flows for the six months
ended June 30, 1996 for BIC (collectively, the "Brighton Group Financial
Statements") The Brighton Group Financial Statements (a) were prepared in
accordance with the books and records of the Brighton Group and its
consolidated subsidiaries; (b) were prepared in accordance with generally
accepted accounting principles consistently applied; (c) are accurate and
fairly present the financial condition and the results of operations as of
the relevant date thereof and for the entities and period covered thereby;
(d) contain and reflect all necessary adjustments and accruals for a fair
presentation of the financial condition and the results of operations for the
entities and period covered by said financial statements; and (e) contain and
reflect adequate provisions for all reasonably anticipated liabilities with
respect to the period then ended.
2.5. ABSENCE OF MATERIAL CHANGES. Except as disclosed in writing to
the Company, since June 30, 1996, there has not been any material adverse
change in the condition (financial or otherwise) of the properties, assets,
liabilities or business of the Brighton Group or its consolidated
subsidiaries, except changes in the ordinary course of business which,
individually and in the aggregate, have not been materially adverse.
2.6. LITIGATION. There is no litigation, proceeding, or investigation
pending or threatened against the Brighton Group or its consolidated
subsidiaries affecting any of their properties or assets, or against any
officer, director, or stockholder, or consultant of the Brighton Group or its
consolidated subsidiaries that might result, either in any case or in the
aggregate, in any material adverse change in the business, operations,
affairs, or financial condition of the Brighton Group or its consolidated
subsidiaries or their properties or assets, or that might call into question
the validity of this Agreement, or any action taken or to be taken pursuant
hereto.
2.7. TITLE TO ASSETS. The Brighton Group and its consolidated
subsidiaries have good and marketable title to all of the assets and
properties now carried on their books as disclosed in their financial
statements, free and clear of all liens, claims, charges, security interests
or other encumbrances, except as described in their financial statements.
2.8. CONTRACTS AND UNDERTAKINGS. The Brighton Group and its
consolidated subsidiaries have no contracts, agreements, leases, licenses,
arrangements, commitments
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and other undertakings (collectively "Contracts") to which any of them is a
party or to which they or their property are subject, with respect to which
they are in material default, or alleged to be in material default, and, to
the knowledge of the Brighton Shareholders, no other party to any Contract to
which the Brighton Group or its consolidated subsidiaries are a party is in
default thereunder nor, to the knowledge of the Brighton Shareholders, does
there exist any condition or event which, after notice or lapse of time or
both, would constitute a default by any party to any such Contract.
2.9. TRANSACTIONS WITH AFFILIATES, DIRECTORS AND SHAREHOLDERS. There
are no contracts, agreements, arrangements or other transactions between the
Brighton Group or any of its consolidated subsidiaries and any officer,
director, or 5% stockholder thereof, or any corporation or other entity
controlled by any such officer, director of 5% stockholder, a member of any
such officer, director of 5% stockholder's family, or any affiliate of any
such officer, director or 5% stockholder.
2.10. NO CONFLICT. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in a breach of any term or provision of, or constitute a default under,
the charter documents of the Brighton Group or any agreement, contract or
instrument to which the Brighton Group is a party or by which it or any of its
assets are bound.
2.11. AUTHORITY. The Brighton Group and the Brighton Shareholders have
full power and authority to enter into this Agreement and to carry out the
transactions contemplated herein. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, have
been duly authorized and approved by The Brighton Group and no other
corporate proceedings on the part of The Brighton Group are necessary to
authorize this Agreement and the transactions contemplated hereby.
2.12. SECURITIES LAWS. The Brighton Shareholders understand that the
Company Shares are not being registered under the Securities Act of 1933, as
amended (the "Securities Act"), on the ground that the offer and sale of the
Company Shares are believed to be exempt from the registration provisions of
Section 5 of the Securities Act pursuant to Section 4(2) thereof, as
transactions by an issuer not involving any public offering, and/or may be
deemed not to involve an offer or sale within the meaning of Section 5 of the
Securities Act pursuant to Regulation S promulgated thereunder for offers and
sales of securities that occur outside the United States, and that the
Company Shares may not be offered or sold in any transaction subject to
Section 5 of the Securities Act unless registered or an exemption from
registration is available for such offer or sale, and that the certificates
representing the Company Shares will bear a legend to that effect,
substantially in the form set forth on Schedule A.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND BARTOSZ
The Company and Bartosz hereby represent and warrant to the Brighton Group
and the Brighton Shareholders as follows:
3.1. ORGANIZATION
(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware, has
the corporate power and authority to carry on its business as presently
conducted, and is qualified to do business in all jurisdictions where the
failure to be so qualified would have a material adverse effect on the
business of the Company.
(b) The copies of the Certificate of Incorporation of the
Company, as certified by the Secretary of State of Delaware, and the Bylaws
of the Company heretofore furnished to the Brighton Shareholders are complete
and correct copies of the Certificate of Incorporation and the Bylaws of the
Company as amended and in effect on the date hereof. All minutes of meetings
and actions in writing without a meeting of the Board of Directors and
stockholders of the Company are contained in the minute book of the Company
and no minutes or actions in writing without a meeting have been excluded in
such minute book.
3.2. CAPITALIZATION OF THE COMPANY. The authorized capital stock of
the Company consists of 100,000,000 shares of Common Stock, par value $0.001
per share, of which 3,513,000 are presently, and will be at the Closing,
outstanding exclusive only of the issuance of the Private Placement Shares
but prior to issuance of Company Shares; and 5,000,000 shares of Preferred
Stock, par value $0.001 per share, none of which is outstanding. All
outstanding shares are duly authorized, validly issued, fully paid and
non-assessable, and, at the Closing, the Company Shares will be duly
authorized, validly issued, fully paid and non-assessable. Except for such
outstanding Shares, there are no outstanding shares of capital stock or other
securities or other equity interests of the Company or rights of any kind to
acquire such stock, other securities or other equity interests. There are no
outstanding agreements which impose an obligation to file a registration
statement or register any of the capital stock of the Company.
3.3. AUTHORITY. The Company has full power and authority to enter into
this Agreement and to carry out the transactions contemplated herein. The
execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the issuance of the Company Shares in
accordance with the terms hereof, have been duly authorized and approved by
the Board of Directors of the Company and no other
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corporate proceedings on the part of Company are necessary to authorize this
Agreement, the transactions contemplated hereby and the issuance of the
Company Shares in accordance with the terms hereof.
3.4. NO LIABILITIES. The Company on a consolidated basis is not
subject to any liability, debt or obligation of any nature, whether absolute,
accrued, contingent, or otherwise and whether due or to become due.
3.5. LITIGATION. There is no litigation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against the Company
affecting any of its properties or assets, or, to the knowledge of the
Company, against any officer, director, or stockholder of the Company that
might result, either in any case or in the aggregate, in any material adverse
change in the business, operations, affairs or condition of the Company or
any of its properties or assets, or that might call into question the
validity of this Agreement, or any action taken or to be taken pursuant
hereto.
3.6. TITLE TO ASSETS. The Company has good and marketable title to all
of its assets and properties now carried on its books including those
reflected in the balance sheet contained in the Company's financial
statements, free and clear of all liens, claims, charges, security interests
or other encumbrances, except as described in the balance sheet included in
the Company's financial statements or on any Exhibits attached hereto. As of
the Closing, the only assets of the Company are set forth on Exhibit 3.6,
which assets will be disposed of pursuant to Section 6.1(c).
3.7. CONTRACTS AND UNDERTAKINGS. The Company has no contracts,
agreements, leases, licenses, arrangements, commitments and other
undertakings (collectively "Contracts") to which the Company or any such
subsidiary is a party or by which it or its property is bound other than what
is described in Exhibit 3.7, all of which will be assigned to a third party
pursuant to Section 6.1(c). The Company is not in material default, or
alleged to be in material default, under any Contract and, to the knowledge
of the Company, no other party to any Contract to which the Company is a
party is in default thereunder nor, to the knowledge of the Company, does
there exist any condition or event which, after notice or lapse of time or
both, would constitute a default by any party to any such Contract.
3.8. TRANSACTIONS WITH AFFILIATES, DIRECTORS AND SHAREHOLDERS. Except
as set forth on Exhibit 3.8 there are no contracts, agreements, arrangements
or other transactions between the Company and any officer, director, or 5%
stockholder, a member of any such officer, director or 5% stockholder's
family, or any affiliate of any such officer, director of 5% stockholder.
3.9. NO CONFLICT. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in
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a breach of any term or provision of, or constitute a default under, the
Certificate of Incorporation or Bylaws of the Company, or any agreement,
contract or instrument to which the Company is a party or by which it or any
of its assets are bound.
3.10. DISCLOSURE. Neither this Agreement nor any other agreement,
document, certificate or written or oral statement furnished to the Brighton
Group by or on behalf of the Company in connection with the transactions
contemplated hereby, contains any untrue statement of a material fact or when
taken as a whole omits to state a material fact necessary in order to make
the statements contained herein or therein not misleading.
3.11. FINANCIAL STATEMENTS. The audited consolidated Balance Sheet of
the Company as of December 31, 1995 and the consolidated Statements of Income
and Cash Flows for the year ended December 31, 1995 (the "Company Financial
Statements") (a) were prepared in accordance with the books and records of
the Company; (b) were prepared in accordance with generally accepted
accounting principles consistently applied; (c) are accurate and fairly
present the Company's financial condition and the results of its operations
as of the relevant date thereof and for the period covered thereby; (d)
contain and reflect all necessary adjustments and accruals for a fair
presentation of the Company's financial condition and the results of its
operations for the period covered by said Financial Statements; and (e)
contain and reflect adequate provisions for all reasonably anticipated
liabilities with respect to the period then ended.
3.12. ABSENCE OF MATERIAL CHANGES. Since December 31, 1995, there has not
been:
(a) any material change in the condition (financial or
otherwise) of the properties, assets, liabilities or business of Company,
except changes in the ordinary course of business which, individually and in
the aggregate, have not been materially adverse.
(b) any undisclosed redemption, purchase or other acquisition
of any shares of the capital stock of Company, or any issuance of any shares
of capital stock or the granting, issuance or execution of any rights,
warrants, options or commitments by the Company relating to their authorized
or issued capital stock.
3.13. COMPLIANCE WITH LAW. The Company has in all material respects
complied with and it is now in all material respects in compliance with, all
Federal, State and Canadian laws applicable to the Company. The Company Shares
will be issued in full compliance with all state and federal securities laws.
3.14. SUBSIDIARIES AND INVESTMENTS. The Company does not own any capital
stock or have any interest in any corporation, partnership or other form of
business organization, other than its interests as described in the recitals.
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4. COVENANTS AND AGREEMENTS OF THE PARTIES EFFECTIVE PRIOR TO CLOSING
4.1. CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing,
each party shall be entitled, through its employees and representatives, to
make such investigations and examinations of the books, records and financial
condition of the Company or The Brighton Group as each party may request. In
order that each party may have the full opportunity to do so, the Company and
the Brighton Group shall furnish each party and its representatives during
such period with all such information concerning the affairs of the Company
or the Brighton Group and its consolidated subsidiaries as each party or its
representatives may reasonably request and cause the Company's or the
Brighton Group and its consolidated subsidiaries' officers, employee,
consultants, agents, accountants and attorneys to cooperate fully with each
party's representatives in connection with such review and examination and to
make full disclosure of all information and documents requested by each party
and/or its representatives. Any such investigations and examinations shall
be conducted at reasonable times and under reasonable circumstances, it being
agreed that any examination or original documents will be at each party's
premises, with copies thereof to be provided to each party and/or its
representatives upon request.
4.2. COOPERATION; CONSENTS. Prior to the Closing, each party shall
cooperate with the other parties to the end that the parties shall (i) in a
timely manner make all necessary filings with, and conduct negotiations with,
all authorities and other persons the consent or approval of which, or the
license or permit from which is required for the consummation of the
transactions contemplated by this Agreement and (ii) provide to each other
party such information as the other party may reasonably request in order to
enable it to prepare such filings and to conduct such negotiations.
4.3. CONDUCT OF BUSINESS. From the date hereof through the Closing,
each party shall (i) conduct its business in the ordinary course and in such
a manner so that the representations and warranties contained herein shall
continue to be true and correct as of the Closing as if made at and as of the
Closing and (ii) not enter into any transaction not envisioned or required by
this transaction, or incur any liability, without first obtaining the written
consent of each party. Without the prior written consent of the Company or
any Brighton Shareholder, except as expressly set forth herein, each party
shall not undertake or fail to undertake any action if such action or failure
would render any of said warranties and representations untrue as of the
Closing.
4.4. LITIGATION. From the date hereof through the Closing, each party
hereto shall promptly notify the other parties of any lawsuits, claims,
proceedings or investigations which after the date hereof are threatened or
commenced against such party or any of its affiliates or any officer,
director, employee, consultant, agent or shareholder thereof, in their
capacities as such, which, if decided adversely, could reasonably be
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expected to have a material adverse effect upon the condition (financial or
otherwise), assets, liabilities, business, operations or prospects of such
party of any of its subsidiaries.
4.5. NOTICE OF DEFAULT. From the date hereof through the Closing, each
party hereto shall give to the other parties prompt written notice of the
occurrence or existence of any event, condition or circumstance occurring
which would constitute a violation or breach of this Agreement by such party
of which would render inaccurate in any material respect any of such party's
representations or warranties herein.
4.6. PRIVATE PLACEMENT. Each of the parties shall cooperate and use their
best efforts to complete the Private Placement which shall close immediately
after the Closing. The Private Placement shall be effected through an escrow
with Loeb & Loeb LLP, Los Angeles, California.
5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
All representations, warranties and covenants of the parties hereto
contained herein shall survive the consummation of the transactions contemplated
herein and remain in full force and effect.
6. CONDITIONS TO CLOSING
6.1. CONDITIONS TO OBLIGATION OF THE BRIGHTON GROUP AND THE BRIGHTON
SHAREHOLDERS. The obligations of the Brighton Group and the Brighton
Shareholders under this Agreement shall be subject to each of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES OF COMPANY TO BE TRUE. The
representations and warranties of the Company herein contained shall be true
in all material respects at the Closing with the same effect as though made
at such time. The Company shall have performed in all material respect all
obligations and complied in all material respects, to its actual knowledge,
with all covenants and conditions required by this Agreement to be performed
or complied with by it at or prior to the Closing.
(b) NO LEGAL PROCEEDINGS. No injunction or restraining order
shall be in effect prohibiting this Agreement, and no action or proceeding
shall have been instituted and, at what would otherwise have been the
Closing, remain pending before the court to restrain or prohibit the
transactions contemplated by this Agreement.
(c) STATUTORY REQUIREMENTS. All statutory requirements for the
valid consummation by the Company of the transactions contemplated by this
Agreement shall have been fulfilled. All authorizations, consents and
approvals of all governments and other persons required to be obtained in
order to permit consummation by the Company of the transactions contemplated
by this Agreement shall have been obtained.
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(d) DIRECTOR RESIGNATION. Prior to the Closing, all of the
directors and officers of the Company shall have submitted their contingent
resignations to Loeb & Loeb to be held in escrow and to become effective at
the Closing. All resignations shall contain a statement that each of the
directors and officers has no claim whatsoever against the Company. Before
the resignations take effect, the resigning directors shall appoint the
persons nominated by the Brighton Shareholders to become new directors of the
Company.
(e) ASSET TRANSFER AND ASSUMPTION OF LIABILITIES. The Brighton
Shareholders and the persons nominated by them to become new directors of the
Company, in their capacities as new management and controlling shareholders
of the Company, acting for and on behalf of the Company, shall have reached
an agreement with Bartosz and Stajen Warness as transferee, and shall have
approved on behalf of the Company the terms of such agreement with such
transferee, to cause the Company to sell and transfer to such transferee and
such transferee shall have agreed to purchase and assume, immediately upon
consummation of the Acquisition, all of the operating assets of the Company
and all of the liabilities of the Company existing immediately prior to the
Acquisition, including but not limited to all costs as described in clause
7.2 of this Agreement. Such transfer and assumption shall take place
immediately following the transfer to the Company of the Brighton Shares. In
connection with the foregoing, all affiliates and/or related parties shall
have released the Company from any obligations or liability existing as of
the Closing.
(f) INDEMNIFICATION. Bartosz shall have agreed to indemnify
and hold the Company harmless with respect to all the liabilities of the
Company existing immediately prior to the Acquisition which are being assumed
by Bartosz and Stajen Warness to paragraph (e).
(g) PRIVATE PLACEMENT. The Private Placement Purchase Price
shall have been deposited into escrow so that the Private Placement can close
immediately after the Closing.
6.2. CONDITIONS TO OBLIGATIONS OF COMPANY. The obligation of the
Company under this Agreement shall be subject to the following conditions:
(a) REPRESENTATIONS AND WARRANTIES OF THE BRIGHTON GROUP AND THE
BRIGHTON SHAREHOLDERS TO BE TRUE. The representations and warranties of The
Brighton Group and the Brighton Shareholders herein contained shall be true in
all material respects as of the Closing and shall have the same effect as though
made at the Closing; The Brighton Group and the Brighton Shareholders shall have
performed in all material respects all obligations and complied in all material
respects, with all covenants and conditions required by this Agreement to be
performed or complied with by them prior to the Closing.
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(b) NO LEGAL PROCEEDINGS. No injunction or restraining order
shall be in effect, and no action or proceeding shall have been instituted and,
at what would otherwise have been the Closing, remain pending before the court
to restrain or prohibit the transactions contemplated by this Agreement.
(c) STATUTORY REQUIREMENTS. All statutory requirements for the
valid consummation by the Brighton Group and the Brighton Shareholders of the
transactions contemplated by this Agreement shall have been fulfilled. All
authorization, consents and approvals of all governments and other persons
required to be obtained in order to permit consummation by the Brighton Group
and the Brighton Shareholders of the transactions contemplated by this
Agreement shall have been obtained.
7. MISCELLANEOUS
7.1. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each of the parties will execute
and deliver to the others such documents and take such action as the other
party may reasonably request in order to consummate more effectively the
transactions contemplated hereby.
7.2. EXPENSES OF SALE. Except as otherwise provided herein, each party
shall bear its own direct and indirect expenses incurred in connection with
the negotiation and preparation of this Agreement and the consummation and
performance of the transactions contemplated herein. Without limitation,
such expenses shall include the fees and expenses of all attorneys, brokers,
investment bankers, accountants, agents and finders and other professionals
incurred in connection herewith, acting on behalf of such party. The parties
shall indemnify each other against any claims, costs, losses, expenses or
liabilities arising from any claim or commissions, finder's fees or other
compensation in connection with the contemplated transactions which may be
asserted by any person based on any agreement or arrangement for payment by
the other party.
7.3. USE AND CONFIDENTIALITY. All of the information, records, books,
and data to which the parties are given access as set forth herein shall be
used by the parties solely for the purpose of confirming the representations
and warranties set forth herein. Subject to any obligation to comply with
(i) any law (ii) any rule or regulation of any authority or securities
exchange of (iii) any subpoena or other legal process to make information
available to the persons entitled thereto, whether or not the transactions
contemplated herein shall be concluded, all information obtained by any party
about the other, and all of the terms and conditions of this Agreement, shall
be kept in confidence by each party, and each party shall cause its
shareholders, directors, trustees, officers, employees, agents and attorneys
to hold such information confidential. Such confidentiality shall be
maintained to the same degree as such party maintains its own confidential
information and shall be maintained until such time, if any, as any such data
or information either is, or becomes, published or a matter of public
knowledge; provided, however, that the
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foregoing shall not apply to any information obtained by either party through
its own independent investigations of the other party or received by such
party from a third party not under any obligation to keep such information
confidential nor to any information obtained by such party which is generally
known to others engaged in the trade or business; and provided, further, that
from and after the Closing, such party shall be under no obligation to
maintain confidential any such information concerning the other party. If
this Agreement shall be terminated for any reason, each party shall return or
cause to be returned to the other all written data, information, files,
records and copies of documents, worksheets and other materials obtained by
such party in connection with the transactions contemplated herein.
7.4. NOTICES. All notices, requests and other communications
thereunder shall be in writing and shall be delivered by courier or other
means of personal service (including by means of a nationally recognized
courier service or professional messenger service), or sent by telex or
telecopy or mailed first class, postage prepaid, by certified mail, return
receipt requested, or by Federal Express or other reputable overnight
delivery service, in all cases, addressed to:
TO THE BRIGHTON GROUP:
The Brighton Industries Corporation
0 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Kit Kung
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxx X. Xxxxxxxx, Esq.
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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TO THE COMPANY:
#00, 0000 - 00 Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxx X. Xxxxxx & Associates
000 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Van X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgment or
other evidence of actual receipt or delivery to the address. In case of service
by telecopy, a copy of such notice shall be personally delivered or sent by
registered or certified mail, in the manner set forth above, within three (3)
business days thereafter. Either party hereto may from time to time by notice
in writing served as set forth above designate a different address or a
different or additional person to which all such notices or communications
thereafter are to be given.
7.5. PARTIES IN INTEREST. Except as otherwise expressly provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
heirs, beneficiaries, personal and legal representatives, successors and
assigns of the parties hereto.
7.6. ENTIRE AGREEMENT, AMENDMENTS. This Agreement, including the
Schedules, Exhibits and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to this subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties or their respective successors or assigns.
13
7.7. HEADINGS, ETC. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretations of this Agreement.
7.8. PRONOUNS. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
7.9. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.10. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Delaware.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto as of the date first above written.
Zentex Corporation, a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
The Brighton Industries Corporation, a
Delaware corporation
By: /s/ Kit Kung
---------------------------------------
Name: Kit Kung
Title:
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Brighton Electronics Corporation, Ltd., a
Hong Kong corporation
By: /s/ Kit Kung
---------------------------------------
Name:
Title:
/s/ Kit Kung
------------------------------------------
Kit Kung
/s/ Hong Yun
------------------------------------------
Hong Yun
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SCHEDULE A
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS PROHIBITED EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF THE SECURITIES ACT OF 1933 (THE "ACT").
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED OR SOLD IN ANY TRANSACTION SUBJECT
TO THE REGISTRATION REQUIREMENTS OF THE ACT UNLESS SUCH SECURITIES ARE
REGISTERED UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT IS AVAILABLE.
16
SCHEDULE B
CERTIFICATE
Reference is made to that certain Agreement (the "Acquisition Agreement")
between Zentex Corporation (the "Company") and Xxxxx Xxxxxxx ("Bartosz"), on
the one hand, and The Brighton Industries Corporation and Brighton
Electronics Corporation Ltd., and Kit Kung and Hong Yun (the "Brighton
Shareholders"), on the other hand. Terms not defined herein shall have the
same meaning as ascribed to them in the Acquisition Agreement.
In connection with the Closing, the Brighton Shareholders have requested that
Bartosz provide this Certificate to the Brighton Shareholders.
Bartosz hereby assumes responsibility for all liabilities of the Company
existing immediately prior to the Acquisition and hereby indemnifies the
Brighton Shareholders and will hold them harmless from and against all loss,
cost, expense or liability associated therewith or arising therefrom, or from
any material breach of the representations and warranties of the Company and
Bartosz set forth in the Acquisition Agreement.
Dated: October 18, 1996
/s/ Xxxxx Xxxxxxx
-----------------------------------------
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EXHIBIT 1.2
(SHARES ISSUED TO SHAREHOLDER AND/OR ITS DESIGNEE(S))
Hong Yun 1,500,000
Kit Kung 25,500,000
00 Xxxxx Xxxx Xxxxx
Xxxxxx XX 00000
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EXHIBIT 2.7
Reference is made to that certain Agreement (the "Acquisition Agreement")
between Zentex Corporation, a Delaware corporation and Xxxxx Xxxxxxx, on the
one hand; and The Brighton Industries Corporation, a Delaware corporation,
and Brighton Electronics Corporation, Ltd., a Hong Kong corporation
(collectively, the "Brighton Group"), and Kit Kung and Hong Yun, as all the
shareholders of the Brighton Group, on the other hand. Terms not defined
herein shall have the same meaning as ascribed to them in the Acquisition
Agreement.
The assets and liabilities of the Brighton Group and its consolidated
subsidiaries are set forth below.
All of the Stock of Brighton Electronics Corporation, Ltd. and Brighton
Electronics Corporation Ltd.
Assets and liabilities as set forth on the Financial Statements.
19
EXHIBIT 3.6
Reference is made to that certain Agreement (the "Acquisition Agreement")
between Zentex Corporation, a Delaware corporation (the "Company") and Xxxxx
Xxxxxxx, on the one hand; and The Brighton Industries Corporation, a Delaware
corporation, and Brighton Electronics Corporation, Ltd., a Hong Kong
corporation, and Kit Kung and Hong Yun, as all the shareholders of the
Brighton Group, on the other hand. Terms not defined herein shall have the
same meaning as ascribed to them in the Acquisition Agreement.
The only assets of the Company are set forth below and will be disposed of
pursuant to Section 6.1 (e).
All of the shares of Yarel Biological Corporation.
20
EXHIBIT 3.7
Reference is made to that certain Agreement (the "Acquisition Agreement")
between Zentex Corporation, a Delaware corporation (the "Company") and Xxxxx
Xxxxxxx, on the one hand; and The Brighton Industries Corporation, a Delaware
corporation, and Brighton Electronics Corporation, Ltd., a Hong Kong
corporation, and Kit Kung and Hong Yun, as all the shareholders of the
Brighton Group, on the other hand. Terms not defined herein shall have the
same meaning as ascribed to them in the Acquisition Agreement.
The only contracts to which the Company is a party or by which it is bound at
the Closing are as follows:
21
EXHIBIT 3.8
Reference is made to that certain Agreement (the "Acquisition Agreement")
between Zentex Corporation, a Delaware corporation (the "Company") and Xxxxx
Xxxxxxx, on the one hand; and The Brighton Industries Corporation, a Delaware
corporation, and Brighton Electronics Corporation, Ltd., a Hong Kong
corporation, and Kit Kung and Hong Yun, as all the shareholders of the
Brighton Group, on the other hand. Terms not defined herein shall have the
same meaning as ascribed to them in the Acquisition Agreement.
Except for the transaction defined in Paragraph 6.1(e), Asset Transfer and
Assumption of Liabilities, there are no contracts, agreements, arrangements
or other transactions between the Company, and any officer, director, or 5%
stockholder of the Company, or any corporation or other entity controlled by
any such officer, director or 5% stockholder, a member of any such officer,
director or 5% stockholder's family, or any affiliate of any such officer,
director or 5% stockholder.
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