Exhibit 10.1
Agreement And Plan Of Reorganization
By And Between
Cottage Investments, Inc.
(a Nevada corporation)
-and-
The Paving Stone Co., Inc.
(a Florida corporation),
The Paving Stone Company of California, Inc.
(a California corporation),
The Paving Stone Company of Arizona, Inc.
(an Arizona corporation),
Paving Stone of Nevada, Inc.
(a Nevada corporation), and
Paving Stone Company of Atlanta, Inc.
(a Georgia corporation)
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of October 11, 2001,
by and between Cottage Investments, Inc., a Nevada corporation ("COTF")
having its offices at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, on
the one hand, and, on the other hand, each of The Paving Stone Co., Inc.,
a Florida corporation ("PSF"), The Paving Stone Company of California,
Inc., a California corporation ("PSC"), The Paving Stone Company of
Arizona, Inc., an Arizona corporation ("PSA"), Paving Stone of Nevada,
Inc. a Nevada corporation ("PSN"), and Paving Stone Company of Atlanta,
Inc., a Georgia corporation ("PSG") (collectively, "PS"), each having its
headquarters at1760 X.X. 00xx Xxxxx, Xxxxxxx Xxxxx, XX 00000, and Xxxxxxx
X. Xxxxxxx (the "PS Stockholder").
W I T N E S S E T H:
WHEREAS, COTF desires to acquire PS, and PS desires to be acquired
by COTF, through a share exchange and reorganization, pursuant to the
terms hereinafter set forth (the "Acquisition") with COTF being the
surviving parent corporation, and PS being the surviving, wholly-owned,
subsidiary corporations; and
WHEREAS, COTF and PS each intend, for Federal income tax purposes,
that the Acquisition contemplated thereby constitutes a reorganization
pursuant to Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code"); and
WHEREAS, the Board of Directors of COTF deems it advisable and in
the best interest of COTF for COTF to acquire PS upon the terms and
conditions hereinafter specified; and
WHEREAS, the Boards of Directors of PSF, PSC, PSA, PSN, and PSG deem
it advisable and in the best interest of PSF, PSC, PSA, PSN, and PSG,
respectively, for PS to be acquired by COTF upon the terms and conditions
hereinafter specified; and
WHEREAS, COTF has authorized 350,000,000 shares of common stock,
$0.00001 par value per share (the "COTF Common Stock"), of which
179,122,971 shares are currently issued and outstanding; and
WHEREAS, PSF has authorized 100 shares of common stock, $1.00 par
value per share (the "PSF Common Stock"), of which shares 100 are
currently issued and outstanding; and
WHEREAS, PSC has authorized 100 shares of common stock, $1.00 par
value per share (the "PSC Common Stock"), of which shares 100 are
currently issued and outstanding; and
WHEREAS, PSA has authorized 1,000 shares of common stock, $1.00 par
value per share (the "PSA Common Stock"), of which shares 100 are
currently issued and outstanding; and
WHEREAS, PSN has authorized 1,000 shares of common stock, $1.00 par
value per share (the "PSN Common Stock"), of which shares 1,000 shares
are currently issued and outstanding; and
WHEREAS, PSG has authorized 2,000 shares of common stock, $.01 par
value per share (the "PSG Common Stock," and with the PSF Common Stock,
the PSC Common Stock, the PSA Common Stock and the PSN Common Stock,
collectively referred to as the "PS Common Stock"), of which shares 300
are currently issued and outstanding; and
WHEREAS, the PS Stockholder is the sole owner and holder of all of
the issued and outstanding shares of PS Common Stock; and
WHEREAS, COTF has 777,536 shares of common stock reserved for the
exercise of warrants and options entitling the holders thereof to
purchase any shares of COTF Common Stock; and
WHEREAS, PS has no outstanding warrants or options entitling any
holders thereof to purchase any shares of PS Common Stock; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE 1
ADOPTION OF AGREEMENT AND PLAN OF REORGANIZATION
1.1 The Acquisition.
At the Effective Time (as defined in Section 1.2 herein), in
accordance with this Agreement and the relevant provisions of Nevada Law,
COTF shall acquire all of the issued and outstanding shares of PS Common
Stock from the PS Stockholder. COTF shall be the surviving parent
corporation (the "Surviving Parent Corporation"), and COTF shall
continue, and be deemed to continue, for all purposes after the
Acquisition. PS shall be the surviving, wholly-owned, subsidiary
corporations (the "Surviving Subsidiary Corporations."), and PS shall
continue, and be deemed to continue, with all rights and duties under
law, for all purposes after the Acquisition. PS shall become wholly-
owned subsidiaries of COTF at the Effective Time as a consequence of the
Acquisition.
1.2 Names of Surviving Corporations.
Upon the Acquisition, the Surviving Parent Corporation shall take
all necessary steps to cause its name to be changed to Paving Stone
Corporation, d/b/a The Paving Stone Company. PSA, PSC, PSF, PSG, and PSN
shall retain their pre-Acquisition names, but shall become wholly-owned
subsidiaries of the Surviving Parent Corporation. The Surviving Parent
Corporation shall be governed and incorporated under the laws of the
State of Nevada, and the Certificate of Incorporation and the By-Laws of
COTF will be the constituent documents of the Surviving Parent
Corporation.
1.3 Directors and Officers.
The directors and officers of the Surviving Parent Corporation
immediately following the Acquisition shall be as follows:
Name Positions
--------------- -----------------------------------
Xxxxxxx X. Xxxxxxx President, Chief Executive Officer and
Chairman of the Board of Directors
Xxxxxx X. Xxxxx Director, Outside Corporate Counsel
Xxxx Xxxxxxx Director, Executive Vice President
and Chief Financial Office
Xxxx Xxxxxx Director
Xxxxxx XxXxxxxx Director
COTF Appointers' designee Director
COTF Appointers' designee Director
Such directors and officers shall continue to hold office until the next
annual meetings of the stockholders and directors of the Surviving Parent
Corporation or until their successors shall have been duly elected and
shall have qualified; except that the two COTF Appointers' designees
shall not be removed from the Board for a period of eighteen months (the
"Eighteen Months") beginning from Effective Time. In the event of
vacancy during the Eighteen Months in one or both of the COTF Appointers'
designee positions, then Tower Hill Holding, Inc., The Enna Corporation,
LLC and Cottage Ventures, LLC (collectively, the "COTF Appointers") will
appoint individuals as the COTF designees by unanimous decision. The COTF
Appointers are not obligated to fill the COTF designee board positions
and may elect to leave those positions unfilled at their sole option. At
no point will Xxxxxx X. Xxxxxxx, Xx. or Xxxx Xxxx act as a director or
COTF Appointers' designee to the board of directors.
1.4 Plan of Exchange.
The method of effecting the Acquisition and the basis for exchanging
and converting the outstanding PS Common Stock into shares of Common
Stock of the Surviving Parent Corporation (the "Surviving Parent
Corporation Common Stock"), shall be as follows:
(a) The certificates representing any and all shares of PS Common Stock
shall be presented for surrender by the PS Stockholder to COTF duly
endorsed for transfer, free and clear of all mortgages, liens, pledges,
security interests, restrictions, encumbrances, or adverse claims of any
nature, except for restrictions against transfer required under
applicable state or federal securities laws, in consideration for which
COTF shall issue the PS Stockholder 16,040,000 shares of Surviving Parent
Corporation Common Stock
(b) In addition, in consideration for services rendered in connection
with the Acquisition, COTF shall issue the following persons the shares
of Surviving Parent Corporation Common Stock as set forth below:
a. 2,240,000 shares to Paving Stone Partners, LLC, a Georgia limited
liability company of which eWorld Capital, Inc., Emerging Growth
Partners, Inc., and MJM Capital, Inc. are members;
b. 200,000 shares to Xxxxxx X. Xxxxxxx;
c. 200,000 shares to Tower Hill Holdings, Inc.; and
d. 1,320,000 shares to Xxxx Xxxxxxx.
(c) PS shall pay to COTF a total of $30,000 in cash, in two
payments, consisting of $10,000 upon execution of this Agreement, and
$20,000 at the time of Closing, upon meeting all preconditions to the
Closing. The parties understand that the sum of $30,000 will be used by
COTF to settle its liabilities per this Agreement.
1.5 Exchange of Shares of PS Common Stock.
The manner of exchanging shares of PS Common Stock into shares of
Surviving Parent Corporation Common Stock in accordance with Section 1.5
above, shall be as follows:
(a) From and after the Effective Time, Olde Monmouth Stock
Transfer Company (the "Exchange Agent"), shall act as exchange agent in
effecting the exchange of certificates representing shares of PS Common
Stock pursuant to Section 1.4(a) hereof. As soon as practicable after the
Effective Time, and after surrender to the Exchange Agent by the PS
Stockholder of certificates which prior to the Effective Time represented
all issued and outstanding shares of PS Common Stock, the Surviving
Parent Corporation shall cause to be distributed to the PS Stockholder in
whose name such common stock certificates shall have been registered, or
in accordance with the written instructions transmitted to the Exchange
Agent by the PS Stockholder , certificates representing shares of
Surviving Parent Corporation Common Stock, all in accordance with the
provisions of Section 1.4(a) hereof. Upon the surrender by the PS
Stockholder of each certificate representing shares of PS Common Stock,
and the issuance and delivery by the Exchange Agent of certificates
representing shares of Surviving Parent Corporation Common Stock, the
certificates which prior to the Effective Time represented outstanding
shares of PS Common Stock shall forthwith be canceled. Until so
surrendered and exchanged, each such certificate representing shares of
PS Common Stock shall be deemed for all purposes to evidence only a right
to receive shares of Surviving Parent Corporation Common Stock, and the
holders of such certificates shall no longer be deemed, for any purpose,
to be stockholders in PS.
(b) Immediately after the Effective Time, the Surviving Parent
Corporation shall provide the Exchange Agent with certificates
representing the number of shares of Surviving Parent Corporation Common
Stock as the Surviving Corporation may be required to issue in accordance
with Section 1.4(a) hereof.
1.6 Execution of the Agreement
On October 11, 2001, the parties will execute the Agreement. Xxxxxx
X. Xxxxxxx, Xx. shall have received all necessary authority to enable him
to, and shall, sign on behalf of COTF. Xxxxxxx Xxxxxxx shall have
received all necessary authority to enable him to, and shall, sign on
behalf of PS. Each party will sign two original copies. On the date of
executing this Agreement, the parties will each send by facsimile a copy
of the executed Agreement to each other at the facsimile numbers
specified in the section providing for notice in Section 11.6 herein. In
addition, on the date of executing this Agreement, the parties will each
send by overnight mail an original copy of the executed Agreement to each
other at the addresses specified in the section providing for notice in
Section 11.6 herein.
ARTICLE II
CLOSING
2.1 Closing Date.
The closing of the Acquisition (the "Closing") and the other
transactions contemplated by this Agreement (the "Related Transactions")
shall take place at each parties' respective location with closing
document exchanged via overnight carrier, 00xx Xxxxx, Xxx Xxxx, XX 00000,
at 10:00 a.m., Eastern Standard Time, on November 12, 2001, or such other
date, time and place as the parties hereto may agree with the parties
understanding that closing will occur within 3 business days of when COTF
receives formal authorization to amend its Articles of Incorporation to
increase the number of authorized shares and change its name as per this
Agreement. (the "Closing Date").
2.2 Execution of Formal Closing Documents.
On the Closing Date, PS and COTF shall execute and deliver the
documents described in Article VIII herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PS
In order to induce COTF to enter into this Agreement and to
consummate the transactions, including the Acquisition, contemplated
hereby, PS and the PS Stockholder represent and warrant to COTF the
following representations and warranties:
3.1 Due Incorporation.
PSF, PSC, PSA, PSN, and PSG are corporations duly organized, validly
existing and in good standing under the laws of the States of Florida,
California, Arizona, Nevada and Georgia, respectively, with all requisite
power and authority to own, lease and operate its properties and to carry
on its business as they are now being owned, leased, operated and
conducted. PS is qualified or licensed to do business and is in good
standing as a foreign corporation in each jurisdiction where the nature
of the properties owned, leased or operated by it and the business
transacted by it requires such qualification or licensing, except where
the failure to be so qualified or licensed would not have a PS Material
Adverse Effect (as defined in Section 3.6 hereof). PS has no direct or
indirect subsidiaries or affiliates, either wholly or partially owned,
and PS does not hold any economic, voting or management interest in any
corporation, proprietorship, firm, partnership, limited partnership,
trust, association, individual or other entity (a "Person") or own any
security issued by any Person. True, correct and complete copies of the
current Certificates of Incorporation and By-laws, as amended, and
minutes of meetings (or written consents in lieu of meetings) of the
Boards of Directors (and all committees thereof) and stockholders of PSF,
PSC, PSA, PSN, and PSG, respectively, since inception have been, or prior
to the Closing Date will have been, delivered to COTF.
3.2 Due Authorization.
PS and the PS Stockholder have full power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by PS of this
Agreement and has been duly and validly approved and authorized by the
shareholders and the Board of Directors of PS, and, subject to obtaining
the necessary approval of the Acquisition by the stockholders of PS, no
other actions or proceedings on the part of PS are necessary to authorize
this Agreement and the transactions contemplated hereby and thereby. PS
has duly and validly executed and delivered this Agreement. Subject to
obtaining the consents set forth on Schedule 3.3, this Agreement
constitutes the legal, valid and binding obligation of PS, enforceable in
accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization or other laws from time to time in effect which affect
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
3.3 Consents and Approvals; Noncontravention.
(a) Except as set forth on Schedule 3.3, no permit,
consent, authorization or approval of, or filing or registration with,
any Governmental Authority or any other Person not a party to this
Agreement is necessary in connection with the execution, delivery and
performance by PS of this Agreement, or the consummation of the
transactions contemplated hereby or thereby, or for the lawful continued
operation by the Surviving Parent Corporation or as Surviving Subsidiary
Corporations following the Effective Time of the business currently
conducted by PS. "Governmental Authority" shall mean the government of
the United States or any foreign country or any state or political
subdivision thereof or any entity, body or authority exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
(b) Except as set forth on Schedule 3.3 and except as
would not result in a PS Material Adverse Effect, the execution, delivery
and performance by PS of this Agreement does not and will not (A) violate
any Law ("Law" meaning any law, statute, regulation, ordinance, rule,
order, decree, judgment, consent decree, settlement agreement or
governmental requirement enacted, promulgated, entered into, agreed or
imposed by any Governmental Authority); (B) violate or conflict with,
result in a breach or termination of, constitute a default (or a
circumstance which, with or without notice or lapse of time or both,
would constitute a default) or give any third party any additional right
(including a termination right) under, permit cancellation of, or result
in the creation of any mortgage, lien (except for any lien for taxes not
yet due and payable), charge, restriction, pledge, security interest,
option, lease or sublease, claim, right of any third party, easement,
encroachment or encumbrance (collectively, a "Lien") upon any of the
assets or properties of PS under any contract to which PS is a party or
by which PS or any of its assets or properties is bound; (C) permit the
acceleration of the maturity of any indebtedness of PS or indebtedness
secured by PS's assets or properties; or (D) violate or conflict with any
provision of the Certificate of Incorporation or By-laws of PS.
(c) PS has obtained and is in compliance with all governmental
permits, licenses, registrations, certificates of occupancy, approvals
and other authorizations (collectively, the "Permits") that are required
for the complete operation of the business of PS as currently operated,
except for any Permits the absence of which would not result in a PS
Material Adverse Effect. All of the Permits are currently valid and in
full force and, to PS's knowledge, no revocation, cancellation or
withdrawal thereof has been threatened. PS has filed such timely and
complete renewal applications as may be required with respect to the
Permits. Except as set forth on Schedule 3.3, to PS's knowledge, the
Permits, in their current state, will allow PS to continue to operate its
business following the Effective Time in substantially the same manner as
PS's business is currently operated and as currently contemplated.
3.4 Capitalization.
(a) The authorized capital structure is as follows:
(i) PSF has 100 shares of Common Stock issued and 100 authorized;
(ii) PSC has 100 shares of Common Stock issued and 100 authorized;
(iii) PSA has 100 shares of Common Stock issued and 1,000 authorized;
(iv) PSN has 1,000 shares of Common Stock issued and 1,000 authorized;
and
(v) PSG has 300 shares of Common Stock issued and 2,000 authorized.
(b) All of the issued and outstanding shares of PS Common Stock
are validly issued, fully paid and nonassessable, and the issuance
thereof was not subject to preemptive rights, and are owned by the PS
Stockholder.
(c) Except as set forth on Schedule 3.4, there are no shares of
PS Common Stock or other equity securities (whether or not such
securities have voting rights) of PS issued or outstanding or any
subscriptions, options, warrants, call rights, convertible securities or
other agreements or commitments of any character obligating PS to issue,
transfer or sell any shares of capital stock or other securities (whether
or not such securities have voting rights) of PS. Except as set forth on
Schedule 3.4, there are no outstanding contractual obligations of PS
which relate to the purchase, sale, issuance, repurchase, redemption,
acquisition, transfer, disposition, holding or voting of any shares of
capital stock or other securities of PS.
3.5 Financial Statements, Undisclosed Liabilities; Other Documents.
For purposes of this Agreement, "PS Financial Statements" shall mean
the audited financial statements of PS as of December 31, 2000 and the
unaudited financial statements of PS as of June 30, 2001, (including all
notes thereto) which have been previously delivered to COTF, consisting
of the balance sheets at such dates and the related statements of income
and cash flow for the twelve month period ended December 31, 1999, the
twelve-month period ended December 31, 2000, and the internal balance
sheet and income statement for the six-month period ended June 30, 2001.
The PS Financial Statements have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
and present fairly the financial position, assets and liabilities of PS
as at the dates thereof and the revenues, expenses, results of operations
and cash flows of PS for the periods covered then ended (subject, in the
case of any unaudited PS Financial Statements, to normal year-end audit
adjustments consistent with past practice and the absence of notes). The
PS Financial Statements are in accordance with the books and records of
PS, do not reflect any transactions which are not bona fide transactions
and do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements contained
therein, in light of the circumstances in which they were made, not
misleading. The PS Financial Statements make full and adequate disclosure
of, and provision for, all obligations and liabilities of PS as of the
date thereof. The PS Financial Statements may be audited in a timely
fashion to meet the reporting obligations of COTF on a timely basis. To
the extent required by applicable securities laws for a Form 10-K, Form
8-K or Schedule 14A, C or F to be filed by COTF with the Securities and
Exchange Commission concerning the Acquisition, PS shall cause its
auditor to review its financial statements and prepare any necessary
interim statements of cash flow and notes to financial statements.
3.6 No Adverse Effects or Changes.
Except as listed on Schedule 3.6, or as disclosed in or reflected in
the PS Financial Statements, or as contemplated by this Agreement, since
June 30, 2001, PS has not (i) taken any of the actions set forth in
Section 5.3, (ii) suffered any PS Material Adverse Effect, (iii) suffered
any damage, destruction or Loss to any of its assets or properties
(whether or not covered by insurance), or (iv) increased the compensation
of any executive officer of PS. "Loss" shall mean liabilities, losses,
costs, claims, damages (including consequential damages), penalties and
expenses (including attorneys' fees and costs of investigation and
litigation). For purposes of this Agreement, "PS Material Adverse Effect"
shall mean any effect on the then business, operations, assets,
liabilities, results of operations, cash flows, condition (financial or
otherwise) or business prospects of PS which is materially adverse to PS.
3.7 Title to Properties.
Except as disclosed on Schedule 3.7, PS (i) has good and marketable
title to, and is the lawful owner of, all of the material tangible and
intangible assets, properties, including real property, and rights
reflected as being owned by PS in the PS Financial Statements (other than
assets disposed of in the ordinary course of business since the date of
the PS Financial Statements), and (ii) at the Effective Time, will have
good and marketable title to, and will be the lawful owner of, all of
such tangible and intangible assets, properties, including real property,
and rights, in any case free and clear of any Lien, except for (x) any
Lien for current taxes not yet due and payable, and (y) minor Liens that
have arisen in the ordinary course of business and that do not (in any
case or in the aggregate) materially detract from the value of the assets
subject thereto or materially impair the operations of PS.
3.8 Liabilities.
Except to the extent reflected or reserved against on the balance
sheets of PS constituting a part of the PS Financial Statements, PS has
no debts, liabilities or obligations of any nature other than as set
forth on Schedule 3.8.
3.9 Intellectual Property.
(a) Schedule 3.9 is a true and complete list of all of the
United States and foreign material patents, patents pending, patent
applications, trademarks, trade names, service marks and rights
(collectively, the "Intellectual Property") used by PS in the conduct of
its business. Except as disclosed on Schedule 3.9:
(i) all of the Intellectual Property is either
owned or licensed by PS;
(ii) none of the Intellectual Property is the
subject of any pending or, to the knowledge of PS, threatened, litigation
or claim of infringement;
(iii) no license to which PS is a party is the
subject of a breach or default by PS or, to PS's knowledge, any other
party thereto, or the subject of any notice of termination given or
threatened in writing;
(iv) the products and services provided by PS
do not, to PS's knowledge, infringe any trademark, service xxxx, trade
name, copyright, trade secret, patent or confidential or proprietary
rights of another, and PS has not received any notice contesting its
right to use any Intellectual Property; and
(v) PS possesses adequate rights as the owner
or the licensee in and to all Intellectual Property necessary to conduct
its business as presently conducted.
(b) PS has no knowledge which, directly or indirectly,
indicates an infirmity in any claim of the material United States and
foreign patents, and patent applications (collectively "PS Patents") or
any basis for invalidity or unenforceability of any claim of the PS
Patents.
(c) PS has no knowledge which, directly or indirectly,
indicates that the licensor in each license agreement under which PS has
been granted rights does not own the entire unencumbered right, title and
interest in and to the Intellectual Property which is the subject of the
license.
3.10 Contracts.
"Contract" shall mean any material contract, lease, commitment or
understanding, sales order, purchase order, agreement, indenture,
mortgage, note, bond, instrument or license, whether written or verbal,
which is intended or purports to be a binding and enforceable agreement.
Schedule 3.10 lists all the material Contracts and arrangements of the
following types to which PS is a party or by which it is bound, or to
which any of its assets or properties is subject, including but not
limited to:
(a) any collective bargaining agreement;
(b) any Contract or arrangement of any kind with any employee,
consultant, medical advisor, officer or director of PS;
(c) any Contract or arrangement with a sales representative,
manufacturer's representative, distributor, dealer, broker, sales agency,
advertising agency or other Person engaged in sales, distributing or
promotional activities, or any Contract to act as one of the foregoing,
on behalf of any Person;
(d) any Contract or arrangement of any nature which involves
the payment or receipt of cash or other property, an unperformed
commitment, or goods or services, having a value in excess of $25,000;
(e) any Contract or arrangement pursuant to which PS has made
or will make loans or advances, or has or will have incurred debts or
become a guarantor or surety or pledged its credit on or otherwise become
responsible with respect to any undertaking of another (except for the
negotiation or collection of negotiable instruments in transactions in
the ordinary course of business);
(f) any indenture, credit agreement, loan agreement, note,
mortgage, security agreement, lease of real property or personal property
or agreement for financing;
(g) any Contract or arrangement involving a partnership, joint
venture or other cooperative undertaking;
(h) any Contract or arrangement involving any restrictions with
respect to the geographical area of operations or scope or type of
business of PS;
(i) any power of attorney or agency agreement or arrangement
with any Person pursuant to which such Person is granted the authority to
act for or on behalf of PS, or PS is granted the authority to act for or
on behalf of any Person;
(j) any Contract relating to any corporate acquisition or
disposition by PS, or any acquisition or disposition of any subsidiary,
division, line of business, or real property, during the five years prior
to the date of this Agreement; and
(k) any Contract not specified above that is material to PS.
PS has made available to COTF true and complete copies of each
document listed on Schedule 3.10, and a written description of each oral
arrangement so listed. Except as disclosed on Schedule 3.10, the
cancellation of any such Contracts at any time by the other party, would
not have a PS Material Adverse Effect.
3.11 Insurance.
Schedule 3.11 contains an accurate and complete list of all policies
of fire, liability, workers' compensation, product liability,
professional malpractice, title and other forms of insurance owned or
held by PS, and PS has heretofore delivered to COTF a true and complete
copy of all such policies. All such policies are in full force and
effect, all premiums with respect thereto covering all periods up to and
including the Closing Date have been, or prior to the Closing Date, will
be, paid, and no notice of cancellation or termination has been received
with respect to any such policy. Except as set forth in Schedule 3.11, PS
has not been refused any insurance with respect to its assets or
operations, and its coverage has not been limited by any insurance
carrier to which it has applied for any such insurance or with which it
has carried insurance, during the last two years. Such insurance policies
provide types and amounts of insurance
customarily obtained by businesses similar to the business of PS.
3.12 Employee Benefit Plans.
Neither PS nor any other member of the Controlled Group (as
hereinafter defined) (i) has at any time maintained, contributed to or
participated in, (ii) has or had at any time any obligation to maintain,
contribute to or participate in, or (iii) has any liability or contingent
liability, direct or indirect, with respect to: any employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), oral or written retirement
or deferred compensation plan, incentive compensation plan, unemployment
compensation plan, vacation pay plan, severance plan, bonus plan, stock
compensation plan or any other type or form of employee-related (or
independent contractor-related) arrangement, program, policy, plan or
agreement. For purposes of this Agreement, the term "Controlled Group"
shall refer to PS and each other corporation or other entity under common
control with PS (pursuant to the provisions of Sections 414(b), (c), (m)
or (o) of the Code) at any time during the 60-month period ending on the
Closing Date.
3.13 Employees; Labor Matters.
(a) PS has conducted and currently is conducting its business
in material compliance with all Laws relating to employment and
employment practices, terms and conditions of employment, wages and hours
and nondiscrimination in employment. In the opinion of management, the
relationship of PS with its employees is good and there is, and during
the past two years there has been, no labor strike, dispute, slow-down,
work stoppage or other labor difficulty pending or, to PS's knowledge,
threatened against or involving PS. None of the employees of PS is
covered by any collective bargaining agreement, no collective bargaining
agreement is currently being negotiated and no attempt is currently being
made, or during the past two years has been made, to organize any
employees of PS to form or enter a labor union or similar organization.
(b) Except as disclosed on balance sheets of PS forming a part
of the Financial Statements or on Schedule 3.13, PS has no material
liability for any vacation time, vacation pay, retirement benefits,
disability or other insurance benefits or severance pay attributable to
services rendered prior to the date of each such balance sheet.
3.14 Tax Matters.
(a) "Taxes", as used in this Agreement, means any Federal,
state, county, local or foreign taxes, charges, fees, levies, or other
assessments, including all net income, gross income, sales and use, ad
valorem, transfer, gains, profits, excise, franchise, real and personal
property, gross receipt, capital stock, production, business and
occupation, disability, employment, payroll, license, estimated, stamp,
custom duties, severance or withholding taxes or charges imposed by any
Governmental Authority, and includes any interest and penalties (civil or
criminal) on or additions to any such taxes and any expenses incurred in
connection with the determination, settlement or litigation of any tax
liability. "Tax Return", as used in this Agreement, means a report,
return or other information required to be supplied to a Governmental
Authority with respect to Taxes including, where permitted or required,
combined or consolidated returns for any group of entities.
(b) PS has duly filed all Tax Returns required to be filed by
it under applicable law or filed appropriate extensions which have not
yet expired and will file all Tax returns required to be filed by it at
or prior to the Effective Time under applicable law. All Tax Returns were
in all material respects (and, as to Tax Returns not filed as of the
execution of this Agreement, will be) true, complete and correct and
filed on a timely basis, or extended as permitted by law.
(c) PS has, within the time and in the manner prescribed by
law, paid (and until the Effective Time will pay within the time and in
the manner prescribed by law) all Taxes that are currently due and
payable except for those contested in good faith and for which adequate
reserves have been taken.
(d) There are no material liens for Taxes upon the assets of PS
except liens for Taxes not yet due.
(e) PS has complied (and until the Effective Time will comply)
in all material respects with the provisions of the Code relating to the
payment and withholding of Taxes and has, within the time and in the
manner prescribed by Law, withheld from employee wages and paid over to
the proper Governmental Authorities all amounts required.
(f) Except as disclosed on Schedule 3.14, no audits or other
administrative proceedings or court proceedings are presently pending
with regard to any Taxes or Tax Returns of PS.
(g) Except as disclosed on Schedule 3.14, PS has not received
any Tax Rulings (as defined below) or entered into any Closing Agreements
(as defined below) with any taxing authority that would have a continuing
adverse effect after the Effective Time. "Tax Ruling", as used in this
Agreement, shall mean a written ruling of a taxing authority relating to
Taxes. "Closing Agreement", as used in this Agreement, shall mean a
written and legally binding agreement with a taxing authority relating to
Taxes.
(h) Schedule 3.14 contains a list of states, territories and
jurisdictions (whether foreign or domestic) to which any Taxes are
properly payable by PS.
3.15 Environmental Regulations.
PS is in compliance in all material respects with all applicable
federal, state and local laws and regulations governing the environment,
public health and safety and employee health and safety (including all
provisions of the Occupational Safety and Health Act ("OSHA")) and no
charge, complaint, action, suit, proceeding, hearing, investigation,
claim, demand or notice has been filed or commenced against PS and, to
the knowledge of PS, no such charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand or notice is pending or threatened
in writing.
3.16 Litigation.
(a) Except as disclosed in Schedule 3.16, there are no actions,
suits, arbitrations, regulatory proceedings or other litigation,
proceedings or governmental investigations pending or, to PS's knowledge,
threatened against PS or any of PS's officers or directors in their
capacity as such, or any of their respective properties or businesses,
and PS is not aware of any facts or circumstances which may reasonably be
likely to give rise to any of the foregoing. Except as set forth on
Schedule 3.16, all of the proceedings pending against PS are covered and
being defended by insurers (subject to such deductibles as are set forth
in such Schedule). Except as disclosed on Schedule 3.16, PS is not
subject to any order, judgment, decree, injunction, stipulation or
consent order of or with any court or other Governmental Authority. PS
has not entered into any agreement to settle or compromise any proceeding
pending or threatened in writing against it which has involved any
obligation for which PS has any continuing obligation.
(b) There are no claims, actions, suits, proceedings, or
investigations pending or, to PS's knowledge, threatened in writing by or
against PS with respect to this Agreement, or in connection with the
transactions contemplated hereby or thereby, and PS has no reason to
believe there is a valid basis for any such claim, action, suit,
proceeding or investigation.
3.17 No Conflict of Interest.
Except as disclosed on Schedule 3.17, to PS's knowledge, no Person
has or claims to have any direct or indirect interest in any tangible or
intangible property used in the business of PS, except as a holder of
shares of PS Common Stock.
3.18 Bank Accounts.
Schedule 3.18 sets forth the names and locations of each bank or
other financial institution at which PS has either an account (giving the
account numbers) or safe deposit box and the names of all Persons
authorized to draw thereon or have access thereto, and the names of all
Persons, if any, now holding powers of attorney or comparable delegation
of authority from PS and a summary statement thereof.
3.19 Compliance with Laws.
Except as set forth on Schedule 3.19, PS is not in default under any
order of any court, Governmental Authority or other agency or arbitration
board or tribunal to which PS is or was subject within the past two years
or in violation of any laws, ordinances, governmental rules or
regulations (including, but not limited to, those relating to
environmental, safety, building, product safety or health standards or
labor or employment matters) to which PS is or was subject within the
past two years, except to the extent failure to comply would not have a
PS Material Adverse Effect. The business of PS is being, and at the
Closing will be, conducted in compliance with all applicable laws,
ordinances, rules and regulations applicable to it (including, but not
limited to, those relating to environmental, safety, building, product
safety or health standards or labor or employment matters, except to the
extent failure to comply would not have a PS Material Adverse Effect).
3.20 Broker's/Finder's Fees.
PS has not used any broker or finder in connection with the
transactions contemplated by this Agreement, and COTF has not and shall
not have any liability or otherwise suffer or incur any loss as a result
of or in connection with any brokerage or finder's fee or other
commission payable as a result of any actions taken by PS with respect to
any broker or finder in connection with the Acquisition contemplated by
this Agreement.
3.21 Board Recommendation.
The Boards of Directors of each of PSF, PSC, PSA, PSN and PSG, at
special meetings of such Boards held on October 3, 2001, approved this
Agreement, the Acquisition and the other transactions contemplated hereby
on the terms and conditions set forth herein and has determined to
recommend that the stockholders of PS approve this Agreement and the
Acquisition.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COTF
In order to induce PS to enter into this Agreement and to consummate
the transactions, including the Acquisition, contemplated hereby, COTF
represents and warrants to PS representations and warranties.
4.1 Due Incorporation.
COTF is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, with all requisite power
and authority to own, lease and operate its properties and to carry on
its business as it is now being owned, leased, operated and conducted.
COTF, in light of its current operations and properties, is not required
to qualify as a foreign corporation in any jurisdiction and is not
qualified to do business in any jurisdiction other than its jurisdiction
of incorporation. True, correct and complete copies of the current
Certificate of Incorporation and By-laws, have been, or prior to the
Closing Date will have been, delivered to PS.
4.2 Due Authorization.
COTF has full power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by COTF of this Agreement have
beenduly and validly approved and authorized by the Board of Directors,
and, no other actions or proceedings on the part of COTF are necessary to
authorize this Agreement and the transactions contemplated hereby and
thereby except that a majority of COTF stockholders must approve an
amendment to COTF's Articles of Incorporation to increase its authorized
shares of common stock and a change to its name. COTF has duly and
validly executed and delivered this Agreement and will duly and validly
execute and deliver the Acquisition. This Agreement constitutes the
legal, valid and binding obligation of COTF, enforceable in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization or other laws from time to time in effect which affect
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
4.3 Consents and Approvals; Noncontravention.
(a) Except as set forth on Schedule 4.3, no permit, consent,
authorization or approval of, or filing or registration with, any
Governmental Authority or any other Person not a party to this Agreement
is necessary in connection with the execution, delivery and performance
by COTF of this Agreement, or the consummation of the transactions
contemplated hereby or thereby.
(b) The execution, delivery and performance by COTF of this
Agreement do not and will not (A) violate any Law, (B) violate or
conflict with, result in a breach or termination of, constitute a default
(or a circumstance which, with or without notice or lapse of time or
both, would constitute a default) or give any third party any additional
right (including a termination right) under, permit cancellation of, or
result in the creation of any Lien (except for any Lien for taxes not yet
due and payable) upon any of the assets or properties of COTF under any
contract to which COTF is a party or by which COTF or any of its assets
or properties is bound; (C) permit the acceleration of the maturity of
any indebtedness of COTF or indebtedness secured by COTF's assets or
properties; or (D) violate or conflict with any provision of the
Certificate of Incorporation or By-laws of COTF.
4.4 Capitalization.
(a) The capital structure of COTF is as follows:
(i) 179,122,971 shares of COTF Common Stock issued and 350,000,000 shares
of COTF Common Stock authorized;
(ii) 321,504 warrants to purchase COTF Common Stock, with strike prices
between $0.65 and $1.03 (See Schedule 4.4);
(iii) 456,032 options to purchase COTF Common Stock, with strike prices
between $0.11 and $1.20 (See Schedule 4.4); and
(iv) $323,263.83 worth of convertible notes outstanding, which are
convertible into COTF Common Stock based on the market price at the time
of the conversion.
(b) All of the issued and outstanding shares of COTF Common Stock
are validly issued, fully paid and nonassessable and the issuance thereof
was not subject to preemptive rights.
(c) Except as set forth on Schedule 4.4 or otherwise provided
in this Agreement, there are no shares of COTF Common Stock or other
equity securities (whether or not such securities have voting rights) of
COTF issued or outstanding or any subscriptions, options, warrants, call
rights, convertible securities or other agreements or commitments of any
character obligating COTF to issue, transfer or sell any shares of
capital stock or other securities (whether or not such securities have
voting rights) of COTF. Except as set forth on Schedule 4.4 or otherwise
provided in this Agreement, there are no outstanding contractual
obligations of COTF which relate to the purchase, sale, issuance,
repurchase, redemption, acquisition, transfer, disposition, holding or
voting of any shares of capital stock or other securities of COTF.
4.5 Financial Statements, Undisclosed Liabilities; Other Documents.
For purposes of this Agreement, "COTF Financial Statements" shall
mean the audited financial statements of COTF as of December 31, 1999,
the audited financial statements of COTF as of December 31, 2000, and the
reviewed financial statements of COTF as of June 30, 2001, (including all
notes thereto), consisting of the balance sheets at such dates and the
related statements of income and cash flow for each such period. The COTF
Financial Statements have been prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied and present
fairly the financial position, assets and liabilities of COTF as at the
dates thereof and the revenues, expenses, results of operations and cash
flows of COTF for the periods covered then ended (subject, in the case of
any unaudited COTF Financial Statements, to normal year-end audit
adjustments consistent with past practice and the absence of notes). The
COTF Financial Statements are in accordance with the books and records of
COTF, do not reflect any transactions which are not bona fide
transactions and do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
contained therein, in light of the circumstances in which they were made,
not misleading. The COTF Financial Statements make full and adequate
disclosure of, and provision for, all obligations and liabilities of COTF
as of the date thereof. The COTF Financial Statements may be audited in a
timely fashion to meet the reporting obligations of COTF on a timely
basis.
4.6 No Adverse Effects or Changes.
Except as listed on Schedule 4.6, or as disclosed in or reflected in
the COTF Financial Statements, or as contemplated by this Agreement,
since June 30, 2001, COTF has not (i) taken any of the actions set forth
in Section 5.3, (ii) suffered any COTF Material Adverse Effect, (iii)
suffered any damage, destruction or Loss to any of its assets or
properties (whether or not covered by insurance), or (iv) increased the
compensation of any executive officer of COTF. "Loss" shall mean
liabilities, losses, costs, claims, damages (including consequential
damages), penalties and expenses (including attorneys' fees and costs of
investigation and litigation). For purposes of this Agreement, "COTF
Material Adverse Effect" shall mean any effect on the then business,
operations, assets, liabilities, results of operations, cash flows,
condition (financial or otherwise) or business prospects of COTF which is
materially adverse to COTF.
4.7 Title to Properties.
Except as disclosed on Schedule 4.7, COTF (i) has good and
marketable title to, and is the lawful owner of, all of the material
tangible and intangible assets, properties, including real property, and
rights reflected as being owned by COTF in the COTF Financial Statements
(other than assets disposed of in the ordinary course of business since
the date of the COTF Financial Statements), and (ii) at the Effective
Time, will have good and marketable title to, and will be the lawful
owner of, all of such tangible and intangible assets, properties,
including real property, and rights, in any case free and clear of any
Lien, except for (x) any Lien for current taxes not yet due and payable,
and (y) minor Liens that have arisen in the ordinary course of business
and that do not (in any case or in the aggregate) materially detract from
the value of the assets subject thereto or materially impair the
operations of COTF.
4.8 Liabilities.
Except to the extent reflected or reserved against on the balance
sheets of COTF constituting a part of the COTF Financial Statements, COTF
has no debts, liabilities or obligations of any nature other than as set
forth on Schedule 4.8.
4.9 Intellectual Property.
(a) Schedule 4.9 is a true and complete list of all of the
United States and foreign material patents, patents pending, patent
applications, trademarks, trade names, service marks and rights
(collectively, the "Intellectual Property") used by COTF in the conduct
of its business. Except as disclosed on Schedule 4.9:
(i) all of the Intellectual Property is either
owned or licensed by COTF;
(ii) none of the Intellectual Property is the
subject of any pending or, to the knowledge of COTF, threatened,
litigation or claim of infringement;
(iii) no license to which COTF is a party is
the subject of a breach or default by COTF or, to COTF's knowledge, any
other party thereto, or the subject of any notice of termination given or
threatened in writing;
(iv) the products and services provided by
COTF do not, to COTF's knowledge, infringe any trademark, service xxxx,
trade name, copyright, trade secret, patent or confidential or
proprietary rights of another, and COTF has not received any notice
contesting its right to use any Intellectual Property; and
(v) COTF possesses adequate rights as the
owner or the licensee in and to all Intellectual Property necessary to
conduct its business as presently conducted.
(b) COTF has no knowledge which, directly or indirectly,
indicates an infirmity in any claim of the material United States and
foreign patents, and patent applications (collectively "COTF Patents") or
any basis for invalidity or unenforceability of any claim of the COTF
Patents.
(c) COTF has no knowledge which, directly or indirectly,
indicates that the licensor in each license agreement under which COTF
has been granted rights does not own the entire unencumbered right, title
and interest in and to the Intellectual Property which is the subject of
the license.
4.10 Contracts.
"Contract" shall mean any material contract, lease, commitment or
understanding, sales order, purchase order, agreement, indenture,
mortgage, note, bond, instrument or license, whether written or verbal,
which is intended or purports to be a binding and enforceable agreement.
Schedule 4.10 lists all the material Contracts and arrangements of the
following types to which COTF is a party or by which it is bound, or to
which any of its assets or properties is subject, including but not
limited to:
(a) any collective bargaining agreement;
(b) any Contract or arrangement of any kind with any employee,
consultant, medical advisor, officer or director of COTF;
(c) any Contract or arrangement with a sales representative,
manufacturer's representative, distributor, dealer, broker, sales agency,
advertising agency or other Person engaged in sales, distributing or
promotional activities, or any Contract to act as one of the foregoing,
on behalf of any Person;
(d) any Contract or arrangement of any nature which involves
the payment or receipt of cash or other property, an unperformed
commitment, or goods or services, having a value in excess of $25,000;
(e) any Contract or arrangement pursuant to which COTF has made
or will make loans or advances, or has or will have incurred debts or
become a guarantor or surety or pledged its credit on or otherwise become
responsible with respect to any undertaking of another (except for the
negotiation or collection of negotiable instruments in transactions in
the ordinary course of business);
(f) any indenture, credit agreement, loan agreement, note,
mortgage, security agreement, lease of real property or personal property
or agreement for financing;
(g) any Contract or arrangement involving a partnership, joint
venture or other cooperative undertaking;
(h) any Contract or arrangement involving any restrictions with
respect to the geographical area of operations or scope or type of
business of COTF;
(i) any power of attorney or agency agreement or arrangement
with any Person pursuant to which such Person is granted the authority to
act for or on behalf of COTF, or COTF is granted the authority to act for
or on behalf of any Person;
(j) any Contract relating to any corporate acquisition or
disposition by COTF, or any acquisition or disposition of any subsidiary,
division, line of business, or real property, during the five years prior
to the date of this Agreement; and
(k) any Contract not specified above that is material to COTF.
COTF has made available to COTF true and complete copies of each
document listed on Schedule 4.10, and a written description of each oral
arrangement so listed. Except as disclosed on Schedule 4.10, the
cancellation of any such Contracts at any time by the other party, would
not have a COTF Material Adverse Effect.
4.11 Insurance.
Schedule 4.11 contains an accurate and complete list of all policies
of fire, liability, workers' compensation, product liability,
professional malpractice, title and other forms of insurance owned or
held by COTF, and COTF has heretofore delivered to PS a true and complete
copy of all such policies. All such policies are in full force and
effect, all premiums with respect thereto covering all periods up to and
including the Closing Date have been, or prior to the Closing Date, will
be, paid, and no notice of cancellation or termination has been received
with respect to any such policy. Except as set forth in Schedule 4.11,
COTF has not been refused any insurance with respect to its assets or
operations, and its coverage has not been limited by any insurance
carrier to which it has applied for any such insurance or with which it
has carried insurance, during the last two years. Such insurance policies
provide types and amounts of insurance customarily obtained by businesses
similar to the business of COTF.
4.12 Employee Benefit Plans.
COTF (i) has maintained, contributed to or participated in, (ii) has
or had at any time any obligation to maintain, contribute to or
participate in, or (iii) has a liability or contingent liability, direct
or indirect, with respect to: any employee benefit plan (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), oral or written retirement or deferred
compensation plan, incentive compensation plan, unemployment compensation
plan, vacation pay plan, severance plan, bonus plan, stock compensation
plan or any other type or form of employee-related (or independent
contractor-related) arrangement, program, policy, plan or agreement.
4.13 Employees; Labor Matters.
(a) COTF has conducted and currently is conducting its business
in material compliance with all Laws relating to employment and
employment practices, terms and conditions of employment, wages and hours
and nondiscrimination in employment. Except as disclosed in the COTF
Financial Statements, in the opinion of management, the relationship of
COTF with its employees is good and there is, and during the past two
years there has been, no labor strike, dispute, slow-down, work stoppage
or other labor difficulty pending or, to COTF's knowledge, threatened
against or involving COTF. None of the employees of COTF is covered by
any collective bargaining agreement, no collective bargaining agreement
is currently being negotiated and no attempt is currently being made, or
during the past two years has been made, to organize any employees of
COTF to form or enter a labor union or similar organization.
(b) Except as disclosed on balance sheets of COTF forming a
part of the Financial Statements or on Schedule 4.13, COTF has no
material liability for any vacation time, vacation pay, retirement
benefits, disability or other insurance benefits or severance pay
attributable to services rendered prior to the date of each such balance
sheet.
4.14 Tax Matters.
(a) "Taxes", as used in this Agreement, means any Federal,
state, county, local or foreign taxes, charges, fees, levies, or other
assessments, including all net income, gross income, sales and use, ad
valorem, transfer, gains, profits, excise, franchise, real and personal
property, gross receipt, capital stock, production, business and
occupation, disability, employment, payroll, license, estimated, stamp,
custom duties, severance or withholding taxes or charges imposed by any
Governmental Authority, and includes any interest and penalties (civil or
criminal) on or additions to any such taxes and any expenses incurred in
connection with the determination, settlement or litigation of any tax
liability. "Tax Return", as used in this Agreement, means a report,
return or other information required to be supplied to a Governmental
Authority with respect to Taxes including, where permitted or required,
combined or consolidated returns for any group of entities.
(b) COTF has duly filed all Tax Returns, except federal and
state income tax returns, required to be filed by it under applicable law
or filed appropriate extensions which have not yet expired and will file
all Tax Returns required to be filed by it at or prior to the Effective
Time under applicable law. All Tax Returns were in all material respects
(and, as to Tax Returns not filed as of the execution of this Agreement,
will be) true, complete and correct and filed on a timely basis, or
extended as permitted by law.
(c) COTF has, within the time and in the manner prescribed by
law, paid (and until the Effective Time will pay within the time and in
the manner prescribed by law) all Taxes that are currently due and
payable except for those contested in good faith and for which adequate
reserves have been taken.
(d) There are no material liens for Taxes upon the assets of
COTF except liens for Taxes not yet due.
(e) COTF has complied (and until the Effective Time will
comply) in all material respects with the provisions of the Code relating
to the payment and withholding of Taxes and has, within the time and in
the manner prescribed by Law, withheld from employee wages and paid over
to the proper Governmental Authorities all amounts required.
(f) Except as disclosed on Schedule 4.14, no audits or other
administrative proceedings or court proceedings are presently pending
with regard to any Taxes or Tax Returns of COTF.
(g) Except as disclosed on Schedule 4.14, COTF has not received
any Tax Rulings (as defined below) or entered into any Closing Agreements
(as defined below) with any taxing authority that would have a continuing
adverse effect after the Effective Time. "Tax Ruling", as used in this
Agreement, shall mean a written ruling of a taxing authority relating to
Taxes. "Closing Agreement", as used in this Agreement, shall mean a
written and legally binding agreement with a taxing authority relating to
Taxes.
(h) Schedule 4.14 contains a list of states, territories and
jurisdictions (whether foreign or domestic) to which any Taxes are
properly payable by COTF.
4.15 Environmental Regulations.
COTF is in compliance in all material respects with all applicable
federal, state and local laws and regulations governing the environment,
public health and safety and employee health and safety (including all
provisions of the Occupational Safety and Health Act ("OSHA")) and no
charge, complaint, action, suit, proceeding, hearing, investigation,
claim, demand or notice has been filed or commenced against COTF and, to
the knowledge of COTF, no such charge, complaint, action, suit,
proceeding, hearing, investigation, claim, demand or notice is pending or
threatened in writing.
4.16 Litigation.
(a) Except as disclosed in Schedule 4.16, there are no actions,
suits, arbitrations, regulatory proceedings or other litigation,
proceedings or governmental investigations pending or, to COTF's
knowledge, threatened against COTF or any of COTF's officers or directors
in their capacity as such, or any of their respective properties or
businesses, and COTF is not aware of any facts or circumstances which may
reasonably be likely to give rise to any of the foregoing. Except as set
forth on Schedule 4.16, all of the proceedings pending against COTF are
covered and being defended by insurers (subject to such deductibles as
are set forth in such Schedule). Except as disclosed on Schedule 4.16,
COTF is not subject to any order, judgment, decree, injunction,
stipulation or consent order of or with any court or other Governmental
Authority. COTF has not entered into any agreement to settle or
compromise any proceeding pending or threatened in writing against it
which has involved any obligation for which COTF has any continuing
obligation.
(b) There are no claims, actions, suits, proceedings, or
investigations pending or, to COTF's knowledge, threatened in writing by
or against COTF with respect to any attempt to enter into a business
combination or Acquisition with any entity, or with respect to this
Agreement, or in connection with the transactions contemplated hereby or
thereby, and COTF has no reason to believe there is a valid basis for any
such claim, action, suit, proceeding or investigation.
4.17 No Conflict of Interest.
Except as disclosed on Schedule 4.17, to COTF's knowledge, no Person
has or claims to have any direct or indirect interest in any tangible or
intangible property used in the business of COTF, except as a holder of
shares of COTF Common Stock.
4.18 Bank Accounts.
Schedule 4.18 sets forth the names and locations of each bank or
other financial institution at which COTF has either an account (giving
the account numbers) or safe deposit box and the names of all Persons
authorized to draw thereon or have access thereto, and the names of all
Persons, if any, now holding powers of attorney or comparable delegation
of authority from COTF and a summary statement thereof.
4.19 Compliance with Laws.
Except as set forth on Schedule 4.19, COTF is not in default under
any order of any court, Governmental Authority or other agency or
arbitration board or tribunal to which COTF is or was subject within the
past two years or in violation of any laws, ordinances, governmental
rules or regulations (including, but not limited to, those relating to
environmental, safety, building, product safety or health standards or
labor or employment matters) to which COTF is or was subject within the
past two years, except to the extent failure to comply would not have a
COTF Material Adverse Effect. The business of COTF is being, and at the
Closing will be, conducted in compliance with all applicable laws,
ordinances, rules and regulations applicable to it (including, but not
limited to, those relating to environmental, safety, building, product
safety or health standards or labor or employment matters, except to the
extent failure to comply would not have a COTF Material Adverse Effect).
4.20 Broker's/Finder's Fees.
COTF has not used any broker or finder in connection with the
transactions contemplated by this Agreement, and PS has not and shall not
have any liability or otherwise suffer or incur any loss as a result of
or in connection with any brokerage or finder's fee or other commission
payable as a result of any actions taken by COTF with respect to any
broker or finder in connection with the Acquisition contemplated by this
Agreement.
4.21 Board Recommendation.
The Board of Directors of COTF, at a special meeting of such Board
held on October 3, 2001, approved this Agreement, the Acquisition and the
other transactions contemplated hereby on the terms and conditions set
forth herein and has determined to recommend that the stockholders of
COTF approve or consent to this Agreement and the Acquisition.
4.22 SEC Filings.
PS has access to all documents as filed with the SEC (the "SEC
Filings"). Nothing has come to the attention of COTF that would indicate
that the SEC Filings were not timely filed with the SEC and as of their
respective filing dates contained any misstatement of a material fact or
an omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading.
4.23 Material Events Subsequent to SEC Reports.
Schedule 4.23 sets forth a description of material events which are
not reflected in the SEC Filings, as of the date of this Agreement.
ARTICLE V
COVENANTS
5.1 Implementing Agreement.
Subject to the terms and conditions hereof, each party hereto shall
use its commercially reasonable efforts to take all action required of it
to fulfill its obligations under the terms of this Agreement and to
facilitate the consummation of the transactions contemplated hereby and
thereby.
5.2 Access to Information and Facilities.
(a) From and after the date of this Agreement, PS shall allow
COTF and its representatives access during normal business hours to all
of the facilities, properties, books, Contracts, commitments and records
of PS and shall make the officers and employees of PS available to COTF
and its representatives as COTF or its representatives shall from time to
time reasonably request. COTF and its representatives will be furnished
with any and all information concerning PS, which COTF or its
representatives reasonably request.
(b) From and after the date of this Agreement, COTF shall give
PS and its representatives access during normal business hours to all of
the facilities, properties, books, Contracts, commitments and records of
COTF (and its subsidiaries and affiliates) and shall make the officers
and employees of COTF (and its subsidiaries and affiliates) available to
PS and its representatives as PS or its representatives shall from time
to time reasonably request. PS and its representatives will be furnished
with any and all information concerning COTF, which PS or its
representatives reasonably request.
5.3 Preservation of Business.
Subject to the terms of this Agreement, from the date of this
Agreement until the Closing Date, each of PS and COTF (which for the
purposes of their covenant includes its subsidiaries and affiliates), as
the case may be, shall operate only in the ordinary and usual course of
business consistent with past practice, and shall use reasonable
commercial efforts to (a) preserve intact the present business
organization of PS and COTF, as the case may be, (b) preserve the good
will and advantageous relationships of PS and COTF, as the case may be,
with employees and other Persons material to the operation of their
respective businesses, and (c) not permit any action or omission within
its control which would cause any of the representations or warranties of
PS and COTF, as the case may be, contained herein to become inaccurate in
any material respect or any of the covenants of PS and COTF, as the case
may be, to be breached in any material respect. Without limiting the
generality of the foregoing, except as set forth on Schedule 3.6 with
respect to PS, (including entry by PS into a bridge loan, convertible
debenture, or equity sale for at least $750,000), prior to the Closing,
neither PS nor COTF will, without having obtained the prior written
consent of the other:
(a) incur any obligation or enter into any Contract which
either (x) requires a payment by any party in excess of, or a series of
payments which in the aggregate exceed, $40,000 or provides for the
delivery of goods or performance of services, or any combination thereof,
having a value in excess of $10,000, or (y) has a term of, or requires
the performance of any obligations by PS or COTF, as the case may be,
over a period in excess of, six months;
(b) take any action, or enter into or authorize any Contract or
transaction other than in the ordinary course of business and consistent
with past practice;
(c) as applicable, sell, transfer, convey, assign or otherwise
dispose of any of its assets or properties, except in the ordinary course
of business, except that COTF may dispose of noncore assets unrelated to
the ongoing business of the Surviving Parent Corporation;
(d) waive, release or cancel any claims against third parties
or debts owing to it, or any rights which have any value in an amount
greater than $25,000 other than actions taken consistent with normal past
business practices, except that COTF may use cancellations of debt as
repayment of current obligations;
(e) make any changes in its accounting systems, policies,
principles or practices;
(f) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell or deliver (whether through the issuance or
granting of options, warrants, convertible or exchangeable securities,
commitments, subscriptions, rights to purchase or otherwise) any shares
of its capital stock or any other securities, or amend any of the terms
of any such securities, except that COTF may issue shares of its common
stock to satisfy its obligations;
(g) split, combine, or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in
respect of its capital stock, or redeem or otherwise acquire any of its
securities, except as required under this Agreement;
(h) make any borrowings, incur any debt (other than trade
payables in the ordinary course of business or equipment leases entered
into in the ordinary course of business), or assume, guarantee, endorse
or otherwise become liable (whether directly, contingently or otherwise)
for the obligations of any other Person other than a subsidiary, or make
any unscheduled payment or repayment of principal in respect of any Short
Term Debt or Long Term Debt. "Long Term Debt" shall mean the aggregate
original principal amount (less any cash repayments of principal
previously made) of, and any and all accrued interest on, all
indebtedness with respect to borrowed money and all other obligations (or
series of related obligations) to pay money with respect to extensions of
credit, including capitalized lease and deferred compensation
obligations, except indebtedness or obligations for which all
installments are payable within six months from the date of the
advancement of funds or extension of credit. The term "Short Term Debt"
shall include any amount listed or to be listed as a current liability on
financial statements which reflects the current portion or final
installments of obligations originally reflected as noncurrent
liabilities;
(i) make any new loans, advances or capital contributions to,
or new investments in, any other Person other than to a subsidiary
consistent with normal business practices;
(j) except as contemplated by this Agreement, enter into,
adopt, amend or terminate any bonus, profit sharing, compensation,
termination, stock option, stock appreciation right, restricted stock,
performance unit, pension, retirement, deferred compensation, employment,
severance or other employee benefit agreements, trusts, plans, funds or
other arrangements for the benefit or welfare of any director, officer or
employee, or increase in any manner the compensation or fringe benefits
of any director, officer or employee or pay any benefit not required by
any existing plan and arrangement or enter into any contract, agreement,
commitment or arrangement to do any of the foregoing other than actions
taken in the ordinary course of business consistent with prior
business practices;
(k) except for capital expenditures contemplated by (xii)
below, acquire, lease or encumber any assets outside the ordinary course
of business or any assets which are material to its operations;
(l) authorize or make any capital expenditures which
individually or in the aggregate are in excess of $10,000 other than
planned expenditures for the development, establishment or expansion of
clinics and other operations consistent with past business practices;
(m) make any Tax election or settle or compromise any federal,
state, local or foreign income Tax liability, or waive or extend the
statute of limitations in respect of any such Taxes;
(n) pay or agree to pay any amount in settlement or compromise
of any suits or claims of liability against it or its directors,
officers, employees or agents in an amount more than $25,000; or
(o) except to comply with the terms of Section 7.8, terminate,
modify, amend or otherwise alter or change any of the terms or provisions
of any Contract other than in accordance with ordinary business
practices, or pay any amount not required by Law or by any Contract in an
amount more than $25,000.
5.4 PS Stockholders' Action.
(a) PS, promptly following the execution of this Agreement,
shall call and hold a special meeting of its stockholders or take action
to obtain the written consent of its stockholders (the "PS Stockholders'
Meeting") as promptly as practicable, for the purpose of voting on and
approving of the Acquisition.
5.5 COTF Disclosure.
(a) As soon as practicable after the execution of this
Agreement, COTF shall file a Current Report on Form 8-K disclosing this
Agreement and the terms of the Acquisition.
(b) The information specifically designated as being supplied
by PS for inclusion in the Current Report shall not, at the time of
filing, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein, not misleading.
(c) If, at any time prior to the Effective Date, any event or
circumstance relating to PS or its officers or directors should be
discovered by PS which should be set forth in an amendment to the Current
Report, PS shall promptly inform COTF of the same, and COTF shall
promptly file such amendment to the Current Report.
5.6 Consents and Approvals.
(a) PS shall use its best efforts to obtain all consents,
approvals, certificates and other documents required in connection with
the performance by it of this Agreement and the consummation of the
transactions contemplated hereby, including all such consents and
approvals by each party to any of the Contracts referred to on Schedule
3.3. PS shall make all filings, applications, statements and reports to
all Governmental Authorities and other Persons which are required to be
made prior to the Closing Date by or on behalf of PS pursuant to any
applicable Law or Contract in connection with this Agreement and the
transactions contemplated hereby.
(b) COTF shall use commercially reasonable efforts to obtain
all consents, approvals, certificates and other documents required in
connection with the performance by it of this Agreement and the
consummation of the transactions contemplated hereby, including, but not
limited to all such consents and approvals by each party to any of the
Contracts referred to on Schedule 4.3. COTF shall make all filings,
applications, statements and reports to all Governmental Authorities and
other Persons which are required to be made prior to the Closing Date by
or on behalf of COTF pursuant to any applicable Law or Contract in
connection with this Agreement and the transactions contemplated hereby.
5.7 No Other Negotiations.
Until the earlier of the Closing or the termination of this Agreement,
neither COTF nor PS and their respective affiliates, subsidiaries, agents
or representatives will
(i) solicit, encourage, directly or indirectly, any inquiries,
discussions or proposals for,
(ii) continue, propose or enter into any negotiations or discussions
looking toward,
(iii) enter into any agreement or understanding providing for any
acquisition of any capital stock of the respective corporation or any
part of the assets or the businesses of the respective corporation, other
than as contemplated or authorized herein.
(b) In addition, neither COTF nor PS and their respective
affiliates, subsidiaries, agents or representatives will provide any
information to any Person (other than as contemplated by this Agreement)
for the purpose of evaluating or determining whether to make or pursue
any such inquiries or proposals with respect to any such acquisition or
sale of capital stock, assets or business. Each of COTF on the one hand
and PS on the other hand will notify the other immediately of any such
inquiries or proposals or requests for information.
(c) Notwithstanding the foregoing subparagraph,
(i)in the event that there is an unsolicited proposal to enter into a
Acquisition, business combination, purchase of substantially all the
assets or similar transaction of or with COTF, COTF at its discretion,
may furnish to and communicate with the party or parties public and non-
public information requested by them and such party may negotiate with
these parties, if
(A)the board of directors of COTF determines in good faith, based upon
the advice of its financial advisors, that such business combination
proposal would, if consummated, result in a transaction that is more
favorable to the corporation's stockholders from a financial point of
view, than the transaction contemplated by this Agreement, and based on
the advice of its outside counsel, that, as a result, such action is
necessary for the board of directors to act in a manner consistent with
its fiduciary duties under applicable law, and
(B)prior to furnishing such information to or entering into negotiations
with such third party, COTF, (x) provides prompt notice to PS to the
effect that it is furnishing information to or entering into discussions
or negotiations with such third party and (y) receives from such third
party an executed confidentiality agreement, and
(ii) COTF may comply with Rule 14e-2 promulgated under the Exchange Act
with regard to a tender or exchange offer. COTF shall notify PS and in
writing of any such inquiries, offers or proposals (including the terms
and conditions of any such proposal and the identity of the person making
it) within 24 hours of the receipt thereof, shall keep PS informed of the
status and details of any such inquiry, offer or proposal, and shall give
PS five days' advance notice of any agreement to be entered into with or
any information to be supplied to any person making such inquiry, offer
or proposal.
5.8 Schedules.
PS on the one hand and COTF on the other hand have made a good faith
effort to provide information for which they are responsible on each
schedule to this Agreement and appropriate to the representation and
warranty of the related schedule; however, to the extent information is
provided on one schedule which should also have been presented on another
schedule, disclosure on the one schedule will be deemed disclosure on the
other schedules where appropriate.
5.9 Supplemental Information.
From time to time prior to the Closing, PS, on the one hand, and
COTF, on the other hand, will promptly disclose in writing to the other
any matter hereafter arising which, if existing, occurring or known at
the date of this Agreement would have been required to be disclosed to
the other parties hereto or which would render inaccurate any of the
representations, warranties or statements set forth in Articles III and
IV, respectively, hereof.
5.10 Ancillary Agreements.
Each of PS and COTF will execute and deliver at the Closing each of
the agreements to which it is a party or take such action as is required
to complete the actions specified in Section 8.3 of this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF COTF
The obligations of COTF under this Agreement are subject to the
satisfaction or waiver by COTF of the following conditions precedent on
or before the Closing Date:
6.1 Representations and Warranties.
Without supplementation after the date of this Agreement, the
representations and warranties of PS and the PS Stockholder contained in
this Agreement shall be, with respect to those representations and
warranties qualified by any materiality standard, true and correct in all
respects, as of the Closing Date, and with respect to all other
representations and warranties, true and correct in all material
respects, as of the Closing Date, with the same force and effect as if
made as of the Closing Date.
6.2 Compliance With Agreements and Covenants.
PS and the PS Stockholder shall have performed and complied with all
of its covenants, obligations and agreements contained in this Agreement
to be performed and complied with by it on or prior to the Closing Date.
6.3 Consents and Approvals.
PS and the PS Stockholder, shall have received written evidence
satisfactory to them that all consents and approvals required for the
consummation of the transactions contemplated hereby have been obtained,
and all required filings have been made, including (without limitation)
those set forth on Schedule 3.3 hereto.
6.4 Documents.
COTF shall have received all of the agreements, documents and items
specified in Section 8.1 below and all deliveries pursuant to Section 8.3
shall have been made.
6.5 No Material Adverse Change.
At the Closing Date, there shall have been no material adverse
change in the assets, liabilities, financial condition, business or
prospects of PS since June 30, 2001 ("PS Material Adverse Change") as
described herein. Between the date of this Agreement and the Closing
Date, there shall not have occurred an event, which would reasonably be
expected to constitute a PS Material Adverse Effect.
6.6 Actions or Proceedings.
No action or proceeding by any Governmental Authority or other
Person shall have been instituted or threatened which (a) is likely to
have a PS Material Adverse Effect, or (b) could enjoin, restrain or
prohibit, or could result in substantial damages in respect of, any
provision of this Agreement or the consummation of the transactions
contemplated hereby.
6.7 Approval of Acquisition.
The stockholders of PS shall have approved this Agreement and the
Acquisition contemplated hereby in accordance with its certificate of
incorporation and by-laws.
6.8 Termination of PS Stock Incentive Plan and Advisors Incentive
Plan.
The board of directors of PS will have taken all necessary action to
terminate any Stock Incentive Plan and Advisors Incentive Plan of PS.
6.9 Audit of Financial Statements
Prior to the Closing, PS will have retained an outside auditor and
completed the audit of its financial statements for the years ended
December 31, 1999 and December 31, 2000 with an unqualified auditors
report, which does not include a "going concern" opinion. Additionally,
PS will provided COTF with interim unaudited financial statements for the
period ending June 30, 2001, which have been reviewed by PS's outside
auditor and which are in the form required by Item 310 ofRegulation S-B.
6.10Execution of Ancillary Agreements
Prior to Closing, PS, their shareholders, representatives, and/or
agents (including, without limitation, Paving Stone Partners, LLC, eWorld
Capital Inc., MJM Capital Inc., and Emerging Growth Partners, Inc., and
their successors, assigns, and/or agents), will have executed all
contemplated lock up, leak out, share exchange, anti-dilution and
registration rights agreements.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF PS
The obligations of PS under this Agreement are subject to the
satisfaction or waiver by PS of the following conditions precedent on or
before the Closing Date:
7.1 Representations and Warranties.
Without supplementation after the date of this Agreement, the
representations and warranties of COTF contained in this Agreement shall
be, with respect to those representations and warranties qualified by any
materiality standard, true and correct in all respects, as of the Closing
Date, and with respect to all other representations and warranties, true
and correct in all material respects, as of the Closing Date, with the
same force and effect as if made as of the Closing Date.
7.2 Compliance with Agreements and Covenants.
COTF shall have performed and complied with all of its covenants,
obligations and agreements contained in this Agreement to be performed
and complied with by it on or prior to the Closing Date.
7.3 Consents and Approvals.
COTF shall have received written evidence satisfactory to them that
all consents and approvals required for the consummation of the
transactions contemplated hereby have been obtained, and all required
filings have been made, including (without limitation) those set forth on
Schedule 4.3 hereto.
7.4 Documents.
PS shall have received all of the agreements, documents and items
specified in Section 8.2 and all deliveries pursuant to Section 8.3 shall
have been made.
7.5 No Material Adverse Change.
At the Closing Date, there shall have been no material adverse
change in the assets, liabilities, financial condition, business or
prospects of COTF since June 30, 2001 ("COTF Material Adverse Change").
Between the date of this Agreement and the Closing Date, there shall not
have occurred an event which would reasonably be expected to
constitute a COTF Material Adverse Effect.
7.6 Actions or Proceedings.
No action or proceeding by any Governmental Authority or other
Person shall have been instituted or threatened which could enjoin,
restrain or prohibit, or could result in substantial damages in respect
of, any provision of this Agreement or the consummation of the
transactions contemplated hereby.
7.7 Approval of Acquisition.
To the extent required by Nevada law, the necessary stockholders of
COTF shall have approved or consented to this Agreement and the
Acquisition contemplated hereby in accordance with its certificate of
incorporation and by-laws, Nevada law and federal law.
7.8 Satisfactions, Releases and Waivers of Liabilities and Other
Obligations
Prior to Closing, COTF will have obtained the release, settlement,
satisfaction, or waiver of all liabilities of the COTF, except that if
the amount due to the auditors of COTF has not been settled through
available resources, including the amount payable at or before Closing by
PS, as described herein, then COTF must obtain the agreement of such
auditors to accept the balance owed in four quarterly installments, with
the first installment being due three months after the date of the
Closing.
7.9 Capital Structure Modification
Prior to the Closing, COTF will have:
(a) effected a reverse split of its common stock sufficient to reduce the
number of outstanding shares of its common stock to no more than
2,000,000 shares, after taking into consideration any shares issued or
issuable to satisfy liabilities of COTF or to persons rendering advice
and assistance to COTF in connection with this transaction, but not
including the warrants and options listed in schedule 4.4, at a ratio of
1 share of common stock to be reverse split by approximately 129.2 (but
which may ultimately range anywhere between 120 and 140);
(b) increased its authorized shares as necessary to allow for the
issuance of shares agreed to in this Agreement, including reserves for
exercise of options or warrants described herein, and at least 35,000,000
shares for an ESOP plan which may be implemented after the Transaction
(even though COTF shall have canceled its preexisting plan prior to
signing this Agreement); and
(c) obtained all necessary consents, approvals and resolutions from board
members and shareholders, amended the charter and by-laws of COTF as
appropriate, and made all necessary filings and paid all necessary filing
fees with appropriate governmental bodies, to effectuate modifications to
the capital structure.
7.10 Expansion of Board of Directors
Prior to the Closing, COTF will have expanded its Board of Directors
to be authorized to include at least seven members, and obtained all
necessary consents, approvals and resolutions from board members and
shareholders, amended the charter and by-laws of COTF as appropriate, and
made all necessary filings and paid all necessary filing fees with
appropriate governmental bodies, to effectuate modifications to the size
of the Board of Directors. Upon Closing the transaction, all directors
except for two designees of COTF will resign, and COTF will use all
efforts to have the five designees of PS appointed to the board of
directors of the Surviving Parent Corporation, including Xxxxxxx Xxxxxxx
as its chairperson.
7.11 Execution of Ancillary Agreements
Prior to Closing, COTF, its shareholders, representatives, and/or
agents (including, without limitation, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx,
Xxxx Xxxx, COTF convertible note or debenture holders, and COTF
affiliates), will have executed all contemplated lock up, leak out, share
exchange and registration rights agreements.
7.12 Employment Agreements
PS shall have no obligation to pay any cash amounts, nor to close,
unless and until the Employment Agreements of Xxxxxxx Xxxxxxx and Xxxx
Xxxxxxx, attached hereto as Exhibits A and B, are executed and their
terms are agreed to by the present Board of Directors of COTF.
7.13 Use of $10,000 Payment
COTF will, subject to Paragraph 7.8 herein, use the funds of $30,000
obtained from PS pursuant to this Agreement to satisfy outstanding
obligations, including to the auditor and transfer agent; and will pay
the transfer agent, in full, any outstanding balances from the initial
$10,000 paid by PS to COTF.
ARTICLE VIII
DELIVERIES AT CLOSING
8.1 Deliveries by PS.
At the Closing, in addition to any other documents or agreements
required under this Agreement, PS and the PS Stockholder shall deliver to
COTF the following:
(a) Evidence, in form satisfactory to COTF, that all filings, approvals
and other matters set forth on Schedule 3.3 have been obtained;
(b) A certificate, dated the Closing Date, of an officer of PS,
certifying as to the compliance by it with Sections 6.1 and 6.2 hereof;
(c) A certificate of the secretary (the "Secretary") of
each of PSF, PSC, PSA, PSN, and PSG, certifying resolutions of the Boards
of Directors and stockholders of each of PSF, PSC, PSA, PSN, and PSG,
respectively approving and authorizing the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby and thereby, including the Acquisition;
(d) The Certificates of Incorporation of PSF, PSC, PSA, PSN,
and PSG, certified by the Secretaries of States of Florida, California,
Arizona, Nevada and Georgia, respectively, and the by-laws of PSF, PSC,
PSA, PSN, and PSG, certified by the Secretaries of PSF, PSC, PSA, PSN,
and PSG, respectively;
(e) Certificates of Good Standing for PSF, PSC,
PSA, PSN, and PSG, from the States of Florida, California, Arizona,
Nevada, and Georgia, respectively, and all the other jurisdictions set
forth on Schedule 3.1 hereof;
(f) Evidence of termination of any stock option and advisor
plan of PS;
(g) Certificates representing any and all issued
and outstanding shares of PS Common Stock duly endorsed for transfer,
free and clear of all mortgages, liens, pledges, security interests,
restrictions, encumbrances, or adverse claims of any nature, except for
restrictions against transfer required under applicable state or federal
securities laws;
(i) Payment of a total $30,000 to COTF, including a check for the
payment of a balance of $20,000 due to COTF at Closing;
(j) Executed, satisfactory agreements by PS, their shareholders,
representatives, and/or agents (including, without limitation, eWorld
Capital Inc., MJM Capital Inc. and Emerging Growth Partners, Inc., and
their successors, assigns, and/or agents), regarding share lock up, leak
out, share exchange and registration rights agreements, including without
limitation that Registration Rights Agreement in the form attached hereto
as Exhibit D;
(k) Executed, satisfactory employment agreements between Xxxxxxx
Xxxxxxx and COTF, in the form of employment agreement attached hereto as
Exhibit C;
(l) Executed, satisfactory employment agreements between Xxxx
Xxxxxxx and COTF, in the form of employment agreement attached hereto as
Exhibit D;
(m) A certified set of board minutes and resolutions of PS board and
shareholder meetings; and
(n) A certified set of representations and warranties.
8.2 Deliveries by COTF.
At the Closing, in addition to any other documents or agreements
required under this Agreement, COTF shall deliver to PS the following:
(a) Evidence, in form satisfactory to PS, that all filings,
approvals and other matters contemplated in Section 4.3 have been
obtained;
(b) A certificate, dated the Closing Date, of an officer of
COTF, certifying as to compliance by COTF with Sections 7.1 and 7.2
hereof;
(c) A certificate of the Secretary of COTF certifying the
bylaws of COTF and the resolutions of the Board of Directors of COTF
approving and authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby
and thereby, including the Acquisition (together with an incumbency and
signature certificate regarding the officer(s) signing on behalf of
COTF);
(d) The Certificate of Incorporation of COTF and any amendments
thereto, certified by the Secretary of State of Nevada];
(e) A Certificate of Good Standing for COTF from the State of
Nevada;
(f) Certificates representing shares of Surviving Parent Company Common
Stock in the amounts and to the persons described in Paragraph 1.4
herein, which shares shall be duly issued, nonassessable, and subject to
a restrictive legend in accordance with Rule 502(d) promulgated under the
Securities Act of 1933, as amended;
(g) Executed, satisfactory agreements by COTF, its shareholders,
representatives, and/or agents (including, without limitation, Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxx, COTF debenture holders, and COTF
affiliates), regarding share lock up, leak out, share exchange and
registration rights agreements;
(h) Proof of satisfaction, release or waiver of outstanding liabilities
in accordance with terms described herein;
(i) A certified set of board minutes and resolutions of COTF board
and shareholder meetings;
(j) A certified set of representations and warranties;
(k) The audit report for the last two years (if available in hard form in
light of the World Trade Center destruction on September 11, 2001);
(l) Proof that Xxxxxx X. Xxxxxxx, Xx. is authorized to sign on behalf of
COTF.
.
8.3 Deliveries to or by Third Parties.
At the Closing, in addition to any other documents required under
this Agreement, the following deliveries will have been or be made:
(a) COTF will deliver at the Closing Shares of COTF Common Stock to
Paving Stone Partners, LLC (comprised of eWorld Capital Inc., MJM Capital
Inc., and Emerging Growth Partners, Inc.), and their successors, agents,
and/or assigns, in the amounts set forth in Paragraph 1.4 herein in
satisfaction of amounts due them under their agreements with PS;
(b) Xxxxxxx Xxxxxxx and COTF will have executed and delivered a copy of
the form of employment agreement attached hereto as Exhibit A;
(c) Xxxx Xxxxxxx and COTF will have executed and delivered a copy of the
form of employment agreement attached hereto as Exhibit B;
(d) Executed, satisfactory agreements by COTF's and PS's shareholders,
representatives, and/or agents (including, without limitation, eWorld
Capital Inc., MJM Capital Inc., Emerging Growth Partners, Inc., and/or
their successors, assigns, and or agents; and Xxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxx, Xxxx Xxxx, COTF debenture holders, and COTF affiliates),
regarding share lock up, leak out, share exchange and registration rights
agreements;
ARTICLE IX
TERMINATION; TERMINATION FEE
9.1 Termination.
Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated and the Acquisition contemplated hereby may
be abandoned at any time prior to the Closing Date, as follows:
(a)by mutual written agreement of COTF and PS;
(b)by COTF (if COTF is not then in material breach of its obligations
under this Agreement) if
(i) a material default or breach shall be made by PS with respect to the
due and timely performance of any of its covenants and agreements
contained herein and such default is not cured within ten days, or
(ii) if PS makes an amendment or supplement to any Schedule hereto and
such amendment or supplement reflects a PS Material Adverse Effect after
the date of this Agreement, or
(iii) a PS Material Adverse Change shall have occurred after the date of
this Agreement, or
(iv) PS board of directors withdraws its recommendation of the
Acquisition or recommends to the PS stockholders the approval of any
transaction other than the Acquisition;
(c) by PS (if PS is not then in material breach of its obligations under
this Agreement) if
(i) a material default or breach shall be made by COTF with respect to
the due and timely performance of any of its covenants and agreements
contained herein and such default is not cured within ten days, or
(ii) if COTF makes an amendment or supplement to any Schedule hereto
after the date hereof and such amendment or supplement reflects a
material change in the financial condition of COTF after the date hereof
or reflects a material change in the representations and warranties set
forth in Section 4.6 (a "COTF Material Adverse Effect"),
(iii) COTF enters into any agreement to effect any transaction described
in Section 5.7(b) of this Agreement,
(v) a COTF Material Adverse Change shall have occurred after the date of
this Agreement, or
(iv) COTF board of directors withdraws its recommendation of the
Acquisition or recommends to the PS stockholders the approval of any
transaction other than the Acquisition;
(d) by COTF on the one hand and by PS on the other hand if the
Effective Time has not occurred within two months following the Date of
this Agreement for any reason unless the Parties agree to an extension in
writing, provided that the right to terminate this Agreement under this
subparagraph 9.1(d) shall not be available to a party that is in breach
of any representation, warranty or covenant in this Agreement, which
breach would entitle any other party to terminate this Agreement.
(e) by COTF on the one hand and by PS on the other hand if
prior to the Effective Time a third party successfully brings an action
resulting in a permanent injunction preventing the consummation of the
Acquisition pursuant to this Agreement.
9.2 Effect of Termination.
In the event of termination pursuant to Section 9.1 hereof, written
notice thereof shall be given to the other parties and all obligations
(except as set forth in this Section 9.2) of the parties shall terminate
and no party shall have any right against any other party hereto for any
loss, damage, expense (including out-of-pocket expenses) or liability,
including, without limitation, reasonable attorneys' fees and
disbursements arising out of the preparation and execution of this
Agreement, fulfilling in whole or in part any obligations under this
Agreement or otherwise incurred by a party in any action or proceeding
between such party and the other party hereto or between such party and a
third party, which is determined to have been sustained, suffered or
incurred by a party and to have arisen from or in connection with an
event or state of facts which is subject to claim under this Agreement.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Participating Stockholders.
The PS Stockholder and Xxxx Xxxxxxx (collectively, the "PS
Participating Stockholders") shall severally (in proportion to their
ownership of the shares of Common Stock of the Surviving Parent
Corporation received in the Acquisition) indemnify and hold harmless the
Surviving Parent Corporation and the Surviving Subsidiary Corporations
(collectively, the "Indemnified Parties") from and against, and shall
reimburse the Indemnified Parties for any Damages ("Damages") which may
be sustained, suffered or incurred by them, whether as a result of any
third party claim or otherwise, and which arise or result from a breach
of any of the PS representations, warranties, agreements, obligations or
undertakings contained in this Agreement. Likewise, the COTF Officers,
Directors and Affiliates (collectively, the "COTF Stockholders") shall
severally (in proportion to their ownership of the shares of Common Stock
of COTF) indemnify and hold harmless the Indemnified Parties from and
against, and shall reimburse the Indemnified Parties for any Damages
which may be sustained, suffered or incurred by them, whether as a result
of any third party claim or otherwise, and which arise or result from a
breach of any of the COTF representations, warranties, agreements,
obligations or undertakings contained in this Agreement. The indemnities
contained in this Article X will survive the Closing. Claims made for
indemnity hereunder must be made prior to the two year Anniversary of the
Closing Date. Any claim for indemnity asserted within the relevant period
under this section shall survive until resolved.
10.2 Procedure.
(a) Third Party Claims. In the event that any Indemnified
Party, the PS Participating Stockholders or the COTF Stockholders become
aware of a third party claim (a "Third Party Claim") for which liability
would arise hereunder, they shall give reasonably prompt notice in
writing to the persons who have indemnified the Indemnified Parties
against such liability as provided in this Agreement. The notice will
identify the basis for the claim or demand, and the amount or the
estimated amount thereof to the extent then determinable, which estimate
will not be conclusive of the final amount of the claim whether or not
the claim is a third party claim ("Claim Notice"). Any delay in giving
the Claim Notice will not be deemed a waiver or result in any
discontinuation of any rights. The Surviving Parent Corporation will
retain counsel to represent the Surviving Parent Corporation or the
Surviving Subsidiary Corporations and shall pay the reasonable fees and
disbursements of such counsel with regard thereto; provided, however,
that the Surviving Parent Corporation or Surviving Subsidiary
Corporations are hereby authorized, prior to the date on which they
receives written notice designating such counsel, to retain counsel, to
file any motion, answer or other pleading and take such other action
which it reasonably deems necessary to protect its interests or those of
the Surviving Parent Corporation or Surviving Subsidiary Corporations
until the date on which notice is received. The Surviving Parent
Corporation or the Surviving Subsidiary Corporations shall have the right
to retain their own counsel. Each side to cooperate in contesting any
third party claim. A third party claim may not be settled without the
prior written consent of the Surviving Parent Corporation or the
Surviving Subsidiary Corporations.
(b) Direct Claims.
In the event the Surviving Parent Corporation has a direct claim
against PS or the PS Participating Stockholders, the Surviving
Corporation will send a Claim Notice to PS on behalf of the PS
Participating Stockholders. Likewise, if the Surviving Subsidiary
Corporations have a direct claim against COTF or the COTF Stockholders,
they will send a Claim Notice to Xxxxxxx Xxxxxxx on behalf of COTF and
the COTF Stockholders.
(c) Retention of Records.
After delivery of a Claim Notice, so long as any right to indemnification
exists pursuant to this Article X, the affected parties each agree to
retain all books and records related to the Claim Notice. In each
instance, the Indemnified Parties and the person who sent the Claim
Notice will have the right to be kept fully informed with respect to any
legal proceeding. Any information or documents made available to any
party hereunder and designated as confidential by the party providing
such information or documents and which is not otherwise generally
available to the public and not already within the knowledge of the party
to whom the information is provided (unless otherwise covered by the
confidentiality provisions of any other agreement among the parties
hereto, or any of them), and except as may be required by applicable law,
shall not be disclosed to any third party (except for the representatives
of the party being provided with the information in which event the party
being provided with the information shall request its representatives not
to disclose any such information which it otherwise is required hereunder
to be kept confidential).
10.3 Adjustment to Acquisition Consideration.
Any indemnification payment made pursuant to this Article X will be
deemed to be an adjustment to the Acquisition consideration.
10.4 Payment and Ceiling.
The payment of Damages from an indemnified claim will be made solely
by the delivery of shares of Surviving Parent Corporation Common Stock by
the PS Participating Stockholders or the COTF Stockholders, as
applicable, free and clear of all liens, valued for this purpose at the
last sale price of the Surviving Parent Corporation Common Stock on the
last trading day prior to the date the Claim Notice is given ("Sale
Price"). The payment of Damages by the PS Participating Stockholders will
be up to a maximum of 2,500,000 shares of Surviving Parent Corporation
Common Stock issued in the Acquisition. The payment of Damages by the
COTF Stockholders will be up to a maximum of the number of shares of
Surviving Parent Corporation Common Stock issued to each individual in
the Acquisition, deliverable pro rata from all the COTF Stockholders in
respect of the Damages incurred by the Indemnified Parties. The number
of shares of Surviving Parent Corporation deliverable as payment of
Damages will be proportionately increased or decreased to account for any
stock dividend, subdivision, reclassification, stock split or combination
of Surviving Parent Corporation Common Stock or any Acquisition,
combination or consolidation in which the Surviving Parent Corporation is
not the surviving entity.
10.5 Representations and Warranties.
For purposes of indemnity under this Article X for breach of a
representation or warranty of PS under this Agreement, the
representations and warranties shall be the representations and
warranties of PS made herein, as supplemented, modified or amended by any
schedule thereto as of the Closing Date. For purposes of indemnity under
this Article X for breach of a representation or warranty of COTF under
this Agreement, the representations and warranties shall be the
representations and warranties of COTF made herein, as supplemented,
modified or amended by any schedule thereto as of the Closing Date.
10.6 Sole Remedy.
After the Closing Date, the sole remedy for recovery of Damages
under this Agreement will be in accordance with this Article X.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses.
Each party hereto shall bear its own expenses with respect to the
transactions contemplated hereby.
11.2 Amendment.
This Agreement may be amended, modified or supplemented but only in
writing signed by the parties hereto.
11.3 Confidentiality and Return of Information to PS.
(a) On and after the date of this Agreement, COTF will keep
secret and confidential
(i)all information heretofore or hereafter acquired by it and deemed to
be confidential by PS, and
(ii)all other information provided by PS to COTF relating to the
business, operations, employees, customers and distributors of PS,
including, but not limited to, any customer or distributor lists,
documentation regarding Intellectual Property, marketing arrangements,
business plans, sales plans, promotional sales materials, pricing
information, manuals, correspondence, notes, financial data or employee
information (all such information described in clauses (i) and (ii) above
is hereinafter collectively referred to as "PS Confidential
Information").
(b) Upon any termination of this Agreement pursuant to Article
IX hereof, COTF shall return to PS all documents and copies of documents
in its possession relating to any PS Confidential Information, and no
director, officer, employee or representative of COTF shall make or
retain any copy or extract of any of the foregoing.
11.4 Confidentiality and Return of Information to COTF.
(a) On and after the date of this Agreement, PS will keep
secret and confidential
(i) all information heretofore or hereafter acquired by it and deemed to
be confidential by COTF, and
(ii) all other information provided by COTF to PS relating to the
business, operations, and employees of COTF, including, but not limited
to, any documentation regarding Intellectual Property, marketing
arrangements, business plans, sales plans, promotional sales materials,
pricing information, manuals, correspondence, notes, financial data or
employee information (all such information described in clauses (i) and
(ii) above is hereinafter collectively referred to as "COTF Confidential
Information").
(b) Upon any termination of this Agreement pursuant to Article
IX hereof, PS shall return to COTF all documents and copies of documents
in its possession relating to any COTF Confidential Information, and no
director, officer, employee or representative of PS shall make or retain
any copy or extract of any of the foregoing.
11.5 Press Release: Public Announcements.
Promptly after execution of this Agreement, PS and COTF may issue
press releases in the form attached hereto as Exhibit C. The parties
shall not make any other public announcements in respect of this
Agreement or the transactions contemplated herein without prior
consultation and approval by the other party as to the form and content
thereof, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, any party may make any disclosure which
its counsel advises is required by applicable law or regulation, in which
case the other party shall be given such reasonable advance notice as is
practicable in the circumstances and the parties shall use their best
efforts to cause a mutually agreeable release or announcement to be
issued.
11.6 Notices.
Any notice, request, instruction or other document to be given
hereunder by a party hereto shall be in writing and shall be deemed to
have been given (a) when received if given in person, (b) on the date of
transmission if sent by telex, facsimile or other wire transmission or
(c) three business days after being deposited in the U.S. mail, certified
or registered mail, postage prepaid:
(a) If to PS:
Xxxxxxx X. Xxxxxxx
The Paving Stone Company
0000 X.X. 00xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxxxx X. Xxxxxxx, Esq.
Law Offices of Xxxxxxxx X. Xxxxxxx, P.C.
000-00 Xxxxx Xxxxxxx Xxxxxxx, #0X
Xxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(b) If to COTF:
Cottage Investments, Inc.
(Attn: Xxxxxxx Xxxxxxx)
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxxx, Xxxx, Xxxxxxx and Xxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
or to such other individual or address as a party hereto may designate
for itself by notice given as herein provided.
11.7 Waivers.
The failure of a party hereto at any time or times to require
performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any
condition or of any breach of any term, covenant, representation or
warranty contained in this Agreement shall be effective unless in
writing, and no waiver in any one or more instances shall be deemed to be
a further or continuing waiver of any such condition or breach in other
instances or a waiver of any other condition or breach of any other term,
covenant, representation or warranty.
11.8 Interpretation.
The headings preceding the text of Articles and Sections included in
this Agreement and the headings to Schedules attached to this Agreement
are for convenience only and shall not be deemed part of this Agreement
or be given any effect in interpreting this Agreement. The use of the
masculine, feminine or neuter gender herein shall not limit any provision
of this Agreement. The use of the terms "including" or "include" shall in
all cases herein mean "including, without limitation" or "include,
without limitation,"
respectively.
11.9 Applicable Law.
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without
giving effect to the principles of conflicts of law thereof.
11.10 Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided,
however, that no assignment of any rights or obligations shall be made by
any party without the prior written consent of all the other parties
hereto.
11.11 No Third Party Beneficiaries.
This Agreement is solely for the benefit of the parties hereto and,
to the extent provided herein, their respective directors, officers,
employees, agents and representatives, and no provision of this Agreement
shall be deemed to confer upon other third parties any remedy, claim,
liability, reimbursement, cause of action or other right; provided,
however, that the foregoing shall not prevent the provisions of Article X
from being enforced derivatively on behalf of an Indemnified Party by the
PS Stockholder, COTF Stockholders or stockholders of the Surviving Parent
Corporation.
11.12 Further Assurances.
Upon the request of the parties hereto, the other parties hereto
will, on and after the Closing Date, execute and deliver such other
documents, releases, assignments and other instruments as may be required
to effectuate completely the transactions contemplated by this Agreement.
11.13 Severability.
If any provision of this Agreement shall be held invalid, illegal or
unenforceable, the validity, legality or enforceability of the other
provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
11.14 Survivability.
If the Acquisition is consummated, the representations and
warranties of the parties will be deemed to survive for two years after
the Closing Date subject to Article X hereof.
11.15 Consent to Venue and Service.
PS and COTF each hereby (a) agrees that any suit, action or
proceeding arising out of or relating to this Agreement shall be
instituted exclusively in the Superior Courts of the State of Georgia ,
or in the United States District Court for the District of Georgia in
Atlanta, (b) waives any objection to the venue of any such suit, action
or proceeding and the right to assert that such forum is not a convenient
forum for such suit, action or proceeding, and (c) irrevocably consents
to the jurisdiction of the Georgia State Court and the United States
District Court for the District of Georgia in Atlanta. In any such suit,
action or proceeding and each of PS and COTF further agrees to accept and
acknowledge service of any and all process that may be served in any
suit, action or proceeding in Nevada State Court, or in the United States
District Court for the District of Nevada and agrees that service of
process upon it mailed by certified mail to its address shall be deemed
in every respect effective service of process upon it in any suit, action
or proceeding.
11.16 Remedies Cumulative.
The remedies provided in this Agreement shall be cumulative and
shall not preclude the assertion or exercise of any other rights or
remedies available by law, in equity or otherwise.
11.17 Entire Understanding.
This Agreement (including the Schedules and Exhibits) and the
Certificate of Acquisition set forth the entire agreement and
understanding of the parties hereto and supersede all prior agreements,
arrangements and understandings between the parties.
11.18 Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on the date first above written.
COTTAGE INVESTMENTS, INC.
/s/ ________________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
THE PAVING STONE CO., INC.
/s/ __________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
THE PAVING STONE COMPANY OF CALIFORNIA, INC.
/s/ __________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
THE PAVING STONE COMPANY OF ARIZONA, INC.
/s/ __________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
PAVING STONE OF NEVADA, INC.
/s/ __________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
PAVING STONE COMPANY OF ATLANTA, INC.
/s/ __________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
/s/ __________________________________
Name: Xxxxxxx X. Xxxxxxx, Individually
