EXHIBIT 10.12
CORPORATE COMBINATION AGREEMENT
This Corporate Combination Agreement (the "Agreement") effective
October 28th, 1999, is by and between JR Consulting, Inc., a Nevada corporation
("JRCI"), having its principal offices at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Providential Securities, Inc., a California corporation
("PROVIDENTIAL"), and the holders of 1,000,000 or more shares of PROVIDENTIAL
common stock as of October 25, 1999 (the "Majority Shareholders"), all of which
are listed on Exhibit A to this Agreement.
RECITALS:
A. JRCI desires to acquire all of the issued and outstanding capital
stock of Providential and the Majority Shareholders of PROVIDENTIAL desire to
exchange all of their shares of PROVIDENTIAL capital stock for shares of JRCI
authorized but unissued shares of stock as hereinafter provided.
B. It is the intention of the parties hereto that: (i) JRCI shall
acquire all of the issued and outstanding capital stock of PROVIDENTIAL in
exchange solely for the number of shares of JRCI's authorized but unissued
shares of common stock, par value $.001 ("Common Stock"), set forth below (the
"Exchange"); and (ii) and the Exchange shall qualify as a transaction in
securities exempt from registration or qualification under the Securities Act of
1933, as amended, and under the applicable securities laws of each state or
jurisdiction where all of the shareholders of PROVIDENTIAL (the "Shareholders")
reside.
C. The board of directors of JRCI deems it to be in the best interest
of JRCI and its shareholders to acquire all of the issued and outstanding
capital stock of PROVIDENTIAL.
D. The board of directors of PROVIDENTIAL and the Majority Shareholders
deem it to be in the best interest of the Shareholders to exchange all of the
capital stock of PROVIDENTIAL for shares of JRCI, as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
1.1 EXCHANGE OF SHARES. JRCI and the Majority Shareholders hereby agree
that the Shareholders shall, on the Closing Date (as hereinafter defined),
exchange all of the issued and outstanding shares of PROVIDENTIAL for 30,000,000
shares of JRCI (the "JRCI Shares"), which number of JRCI Shares assumes the
effectuation of a 2-for-1 reverse stock split as described herein. The JRCI
SHARES will be restricted against resale pursuant to the provisions of Federal
and state securities laws. Notwithstanding the foregoing, certain
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minority shareholders of PROVIDENTIAL may, for whatever reason, not tender their
shares for exchange. Any shares not tendered will remain issued and outstanding
as to PROVIDENTIAL, which will in turn become a subsidiary of JRCI. The
PROVIDENTIAL stock to be tendered (20,000,000 shares) will represent all of the
issued and outstanding stock of PROVIDENTIAL, plus any shares subscribed for or
committed by virtue of a private placement to take place on October 27, 1999,
and any shares reserved for issuance to the holders of preferred shares
(cumulatively, the "Providential Shares"). The PROVIDENTIAL Shares owned by each
Shareholder and the number of JRCI Shares which each will receive in the
Exchange are set forth in Exhibit A hereto. To the extent any holders of
PROVIDENTIAL shares do not tender their PROVIDENTIAL shares for exchange, the
number of JRCI Shares to be issued shall be reduced.
1.2 DELIVERY OF SHARES. On the Closing Date, the Shareholders wishing
to exchange PROVIDENTIAL Shares for JRCI Shares (the "Exchanging Shareholders")
will deliver to JRCI the certificates representing the Providential Shares, duly
endorsed (or with executed stock powers) so as to make JRCI the sole owner
thereof. Within 5 business days of the Closing Date, JRCI will deliver
certificates representing the JRCI Shares to the exchanging Shareholders.
1.3 RESTRICTED SECURITIES. The JRCI Shares have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be resold unless the resale thereof is registered under the Securities Act or an
exemption from such registration is available. Each certificate representing the
JRCI Shares will have a legend thereon in substantially the following form:
THE SHARES REPRESENTED BY THE CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SHARES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE RESALE OF
THE SHARES UNDER THE ACT UNLESS IN THE OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY, REGISTRATION IS NOT REQUIRED UNDER THE ACT.
1.4 REGISTRATION RIGHTS AND AGREEMENTS. The JRCI Shares being issued to
the Shareholders will carry "piggyback" registration rights, such that if any
registration of JRCI stock occurs during the first year after Closing, then 20%
of the JRCI Shares will be registered. If no such registration is filed during
the first year, then 40% of the total number of JRCI Shares still held by
PROVIDENTIAL Shareholders will be registered (or become unrestricted) during the
ensuing year, solely for the benefit of the former PROVIDENTIAL Shareholders.
During the second subsequent year, 60% of the unregistered, or restricted, JRCI
Shares of the Shareholders will be registered. In any year in which a
registration statement is filed, PROVIDENTIAL Shareholders will have a
percentage of their shares registered that is equal or greater than the
registration of any other then-existing shareholders of JRCI. The number of
shares to be registered in any such registration statement shall be allocated
pro rata among the Shareholders. Thus, if in the first year, 20%
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of the JRCI Shares are to be registered, then each Shareholder shall be entitled
to include in the registration statement 20% of the JRCI Shares owned by that
Shareholder. If any of the registrations are not timely accomplished, then the
PROVIDENTIAL Shareholders may cause the registration to occur at JRCI expense.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PROVIDENTIAL AND THE
MAJORITY SHAREHOLDERS
PROVIDENTIAL and the Majority Shareholders, jointly and not severally,
hereby represent and warrant as follows:
2.1 ORGANIZATION AND GOOD STANDING. PROVIDENTIAL is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California. PROVIDENTIAL has the corporate power and authority to carry on its
business as presently conducted. PROVIDENTIAL is qualified to do business in all
jurisdictions where the failure to be so qualified would have a material adverse
effect on its business.
2.2 CORPORATE AUTHORITY. PROVIDENTIAL has the corporate power to enter
into this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transaction contemplated
hereby have been duly authorized by the Board of Directors and a majority of the
Shareholders of PROVIDENTIAL. The execution and performance of this Agreement
will not constitute a material breach of any agreement, indenture, mortgage,
license or other instrument or document to which PROVIDENTIAL is a party and
will not violate any judgment, decree, order, writ, rule, statute, or regulation
applicable to PROVIDENTIAL or its properties. The execution and performance of
this Agreement will not violate or conflict with any provision of the
Certificate of Incorporation or by-laws of PROVIDENTIAL.
2.3 OWNERSHIP OF SHARES. The Shareholders described on Exhibit A are
the owners of record and beneficially of all of the issued and outstanding
shares of capital stock of PROVIDENTIAL. Each Majority Shareholder represents
and warrants that he, she or it owns such shares free and clear of all rights,
claims, liens and encumbrances, and the shares have not been sold, pledged,
assigned or otherwise transferred except pursuant to this Agreement.
2.4 RECEIPT OF CORPORATE INFORMATION; INDEPENDENT INVESTIGATION;
ACCESS. All requested publicly-available documents, records and books pertaining
to JRCI and the JRCI Shares have been delivered to the Shareholder and/or its
advisors. All of the Shareholder's questions and requests for information have
been answered to the Shareholder's satisfaction. Shareholder acknowledges that
Shareholder, in making the decision to exchange the Providential Shares for JRCI
Shares, has relied upon independent investigations made by it and its
representatives, if any, and Shareholder and such representatives, if any, have,
prior to the Closing Date, been given access to and the opportunity to examine
all material
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contracts and documents relating to this offering and an opportunity to ask
questions of, and to receive information from, JRCI or any person acting on its
behalf concerning the terms and conditions of this Agreement. Shareholder and
its advisors, if any, have been furnished with access to all publicly available
materials relating to the business, finances and operation of JRCI and materials
relating to the offer and sale of the JRCI Shares which have been requested.
Shareholder and its advisors, if any, have received complete and satisfactory
answers to any such inquiries.
2.5 RISKS. The Shareholder acknowledges and understands that the
purchase of the JRCI Shares involves a high degree of risk and is suitable only
for persons of adequate financial means who have no need for liquidity in this
investment in that (i) the Shareholder may not be able to liquidate the
investment in the event of an emergency; (ii) transferability is extremely
limited; and (iii) in the event of a disposition, the Shareholder could sustain
a complete loss of its entire investment. The Shareholder is sufficiently
experienced in financial and business matters to be capable of evaluating the
merits and risks of an investment in JRCI; has evaluated such merits and risks,
including risks particular to the Shareholder's situation; and the Shareholder
has determined that this investment is suitable for the Shareholder. The
Shareholder has adequate financial resources and can bear a complete loss of the
Shareholder's investment.
2.6 INVESTMENT INTENT. The Shareholder hereby represents that the JRCI
Shares are being acquired for the Shareholder's own account with no intention of
distributing such securities to others. The Shareholder has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
otherwise distribute to any person or to have any person sell, transfer or
otherwise distribute the Shares for the Shareholder. The Shareholder is
presently not engaged, nor does the Shareholder plan to engage within the
presently foreseeable future, in any discussion with any person regarding such a
sale, transfer or other distribution of the Shares or any interest therein.
2.7 COMPLIANCE WITH FEDERAL AND STATE SECURITIES LAWS. The Shareholder
understands that the JRCI Shares have not been registered under the Securities
Act. The Shareholder understands that the JRCI Shares must be held indefinitely
unless the sale or other transfer thereof is subsequently registered under the
Securities Act or an exemption from such registration is available. Moreover,
the Shareholder understands that its right to transfer the JRCI Shares will be
subject to certain restrictions, which include restrictions against transfer
under the Securities Act and applicable state securities laws. In addition to
such restrictions, the Shareholder realizes that it may not be able to sell or
dispose of the JRCI Shares as there may be no public or other market for them.
The Shareholder understands that certificates evidencing the Shares shall bear a
legend substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY APPLICABLE STATE LAW.
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THEY MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR PLEDGED UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE LAW OR
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS
2.8 APPROVALS. No approval, authorization, consent, order or other
action of, or filing with, any person, firm or corporation or any court,
administrative agency or other governmental authority is required in connection
with the execution and delivery of this Agreement by the Shareholder or the
consummation of the transactions described herein.
2.9 NO GENERAL SOLICITATION. Shareholder is not purchasing the JRCI
Shares because of or following any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or presented at any seminar or meeting, or any
solicitation or a subscription by a person other than a representative of JRCI.
2.10 BROKER/DEALER COMPLIANCE.
(a) CONSENTS. Schedule 2.10(a) sets forth a complete list of all
consents of governmental or other regulatory agencies, foreign or domestic, and
of other third parties required to be received by or on the part of PROVIDENTIAL
to enable it to enter into and carry out this Agreement and the transactions
contemplated hereby. All such requisite consents have been, or prior to the
Closing will have been, obtained.
(b) REGISTRATION. PROVIDENTIAL is (i) registered as a broker-dealer in
securities with the SEC, (ii) registered as a broker-dealer in securities in the
States listed on Schedule 2.10(b), and (iii) is a member organization in good
standing with the NASD, SIPC and the MSRB, if currently a member thereof.
(c) REGULATORY FILINGS. PROVIDENTIAL's tax returns, Form BD, amendments
thereto, supervisory procedures, compliance manual, FOCUS Reports, audited
financial statements, Forms U-4, Forms U-5, NASD and SIPC reports and
assessments, SIC Agreement Form for Indirect Inquiries, Registration Form for
the Lost and Stolen Securities Program, fidelity bond, and all other forms,
reports, statements, documents, books and records were properly and timely filed
with the appropriate regulatory authority where the failure to do so may result
in a censure, sanction, violation, penalty, fine, assessment, "acceptance,
waiver and consent" or other disciplinary charge, allegation or finding of
wrongdoing by such regulatory or governmental authority, or which may otherwise
require disclosure on any application, form, report, letter, opinion, agreement,
contract, instrument, note, document or paper which may be filed with any such
regulatory authority, insurance carrier, surety, bank or other financial or
securities-related institution now, or hereafter.
(d) APPROVAL AND NET CAPITAL REQUIREMENTS. PROVIDENTIAL has secured all
necessary approvals from all appropriate regulatory authorities to conduct its
business as a securities
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broker-dealer; and PROVIDENTIAL has always had, except for the incident
described in Schedule 2.10(e), and continues to be in compliance with, its
minimum net capital requirement in accordance with Rules 15c3-1 and 17a-11 under
the Exchange Act and its Restriction Agreement with the NASD, as amended from
time to time, through and including the Closing Date; and PROVIDENTIAL since it
originally applied for registration as a broker-dealer through the Closing Date,
PROVIDENTIAL has maintained the minimum net capital it has been required to
maintain under such Rules, its NASD Restriction Agreement and each amendment
thereto, and the applicable rules and regulations of the State of California and
every other jurisdiction in which the Corporation is currently registered as a
broker-dealer.
(e) COMPLIANCE WITH REPORTING REQUIREMENTS. PROVIDENTIAL has always
been and continues to be in compliance with the financial reporting and filing
requirements of the SEC, NASD, the States of California and every other
jurisdiction in which it is currently registered as a broker-dealer, through and
including the Closing Date, and has filed timely all required FOCUS Reports,
audited financial statements, amendments to Form BD, Forms U-4, Forms U-5, NASD
and SIPC reports and assessments, its SIC Agreement Form for Indirect Inquiries,
Registration Form for the Lost and Stolen Securities Program, and all other
forms, reports, statements and documents which were required to be so filed with
the SEC, NASD, the State of California and all other jurisdictions in which it
is currently registered as a broker-dealer, and all other regulatory authorities
which had, or do have jurisdiction over PROVIDENTIAL and its business, where the
failure to do so may result in a regulatory authority imposing, levying or
determining grounds for a censure, sanction, violation, penalty, fine,
assessment, "acceptance, waiver and consent" or other disciplinary charge or
allegation of wrongdoing, or which may otherwise require disclosure on any
application, form, report, letter, opinion, agreement, contract, instrument,
note, document, or paper which may be filed with any such regulatory or
governmental authority, insurance carrier, surety, bank, other financial or
securities-related institution, now or hereafter; PROVIDENTIAL has paid all
requisite fees, assessments, late charges, fines and penalties, if any, in
connection therewith; and the information contained in such forms, reports,
statements and documents was and is true and correct in all respects.
(f) BOOKS AND RECORDS. PROVIDENTIAL has established, maintained and
preserved all books and records required to be so established, maintained and
preserved in accordance with Rules 17a-3, 17a-4 and 17a-5 under the Exchange
Act.
(g) SECURITIES TRANSACTIONS. PROVIDENTIAL has not effected or attempted
to effect any securities transaction for its own account or any customer,
including, but not limited to, a shareholder, director, officer, employee or
agent of Providential, except in accordance with the laws and applicable rules
and regulations of the Regulators.
(h) INVESTMENT ADVISORY SERVICES. PROVIDENTIAL has not performed any
investment advisory services for any person or entity.
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(i) YEAR 2000 COMPLIANCE. PROVIDENTIAL has resolved any and all Year
2000 issues related to its own systems and those of its major customers and
providers and will not experience any material system failures or
miscalculations causing disruptions to its activities and operations.
PROVIDENTIAL has submitted to the NASD the appropriate documents demonstrating
that PROVIDENTIAL's computer systems are Year 2000 compliant.
2.11 FINANCIAL STATEMENTS, BOOKS AND RECORDS. Attached as Exhibit 2.11
are the audited financial statements (balance sheet, income statement, notes) of
PROVIDENTIAL as of December 31, 1998 and for the previous fiscal year, and
unaudited quarterly statements through June 30, 1999 (the "Financial
Statements"). The Financial Statements fairly represent the financial position
of PROVIDENTIAL as at such dates and the results of its operations for the
periods then ended. The Financial Statements were prepared in accordance with
generally accepted accounting principles applied on a consistent basis with
prior periods except as otherwise stated therein. The books of account and other
financial records of PROVIDENTIAL are in all respects complete and correct in
all material respects and are maintained in accordance with good business and
accounting practices.
2.12 NO MATERIAL ADVERSE CHANGES. Since June 30, 1999 there has not
been:
(i) any material adverse change in the financial
position of PROVIDENTIAL except changes arising in the
ordinary course of business, which changes will in no event
materially and adversely affect the financial position of
PROVIDENTIAL;
(ii) any damage, destruction or loss materially
affecting the assets, prospective business, operations or
condition (financial or otherwise) of PROVIDENTIAL whether or
not covered by insurance;
(iii) any declaration, setting aside or payment of
any dividend or distribution with respect to any redemption or
repurchase of PROVIDENTIAL capital stock, except for the
Private Placement conducted October 27, 1999;
(iv) any sale of an asset (other than in the ordinary
course of business) or any mortgage or pledge by PROVIDENTIAL
of any properties or assets; or
(v) adoption of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or
arrangement.
2.13 TAXES. PROVIDENTIAL has filed all material tax, governmental
and/or related forms and reports (or extensions thereof) due or required to be
filed and has paid or made adequate provisions for all taxes or assessments
which had become due as of the Closing Date, and there are no deficiency notices
outstanding. No extensions of time for the
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assessment of deficiencies for any year is in effect. No deficiency notice is
proposed or, to the knowledge of the Major Shareholders after reasonable
inquiry, threatened against PROVIDENTIAL. The tax returns of PROVIDENTIAL have
never been audited.
2.14 COMPLIANCE WITH LAWS. PROVIDENTIAL has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect the business
of PROVIDENTIAL.
2.15 NO BREACH. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Certificate of
Incorporation or By-Laws of PROVIDENTIAL;
(ii) violate, conflict with or result in the breach
of any of the terms of, result in a material modification of,
otherwise give any other contracting party the right to
terminate, or constitute (or with notice or lapse of time, or
both constitute) a default under any contract or other
agreement to which PROVIDENTIAL is a party or by or to which
it or any of its assets or properties may be bound or subject;
(iii) violate any order, judgment, injunction, award
or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, PROVIDENTIAL or upon
the properties or business of PROVIDENTIAL; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated
herein which could have a material, adverse effect on the
business or operations of PROVIDENTIAL.
2.16 ACTIONS AND PROCEEDINGS. PROVIDENTIAL is not a party to any
material pending litigation or, to the knowledge of the Majority Shareholders,
after reasonable inquiry, any governmental investigation or proceeding not
reflected in the PROVIDENTIAL Financial Statements and, to their best knowledge,
no material litigation, claims, assessments or non-governmental proceedings are
threatened against PROVIDENTIAL except as set forth on Schedule 2.16 attached
hereto and made a part hereof.
2.17 AGREEMENTS. Schedule 2.17 sets forth any material contract or
arrangement to which PROVIDENTIAL is a party or by or to which it or its assets,
properties or business are bound or subject, whether written or oral.
2.18 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
PROVIDENTIAL in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by PROVIDENTIAL or
any of its
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Shareholders.
2.19 REAL ESTATE. Except as set forth on Schedule 2.19, PROVIDENTIAL
owns no real property nor is a party to any leasehold agreement. All uses of the
real property by Providential or its subsidiaries conform in all material
respects to all applicable building and zoning ordinances, laws and regulations.
2.20 OSHA AND ENVIRONMENTAL COMPLIANCE. Providential has duly complied
with, and its offices, real property, business, assets, leaseholds and equipment
are in compliance in all material respects with, the provisions of the Federal
Occupational Safety and Health Act, the Environmental Protection Act, and all
other environmental laws. There have been no outstanding citations, notices or
orders of non-compliance issued to PROVIDENTIAL or relating to its business,
assets, property, leaseholders or equipment under such laws, rules or
regulations.
PROVIDENTIAL has been issued all required federal, state and
local licenses, certificates or permits relating to all applicable environmental
laws. There are no visible signs of releases, spills, discharges, leaks or
disposal (collectively, referred to as "Releases") of hazardous substances at,
upon, under or within the real property owned by Providential. There are no
underground storage tanks or polycholorinated biphenyls on the real property. To
the best of the Majority Shareholders' knowledge, after reasonable inquiry, the
real property has never been used as a treatment, storage or disposal facility
of hazardous waste. To the best of the Majority Shareholders' knowledge, after
reasonable inquiry, no hazardous substances are present on the real property or
any premises leased by Providential excepting such quantities as are handled in
accordance with all applicable manufacturer's instructions and governmental
regulations and in the proper storage containers and as are necessary for the
operation of the commercial business of Providential.
2.21 TANGIBLE ASSETS. PROVIDENTIAL has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, projects,
owned or leased by PROVIDENTIAL, any related capitalized items or other tangible
property material to the business of PROVIDENTIAL (the "Tangible Assets"). Other
than as set forth in Section 2.21. PROVIDENTIAL holds all rights, title and
interest in all the Tangible Assets owned by it on the Balance Sheet or acquired
by it after the date on the Balance Sheet free and clear of all liens, pledges,
mortgages, security interests, conditional sales contracts or any other
encumbrances. All of the Tangible Assets are in good operating condition and
repair and are usable in the ordinary course of business of PROVIDENTIAL and
conform to all applicable laws, ordinances and government orders, rules and
regulations relating to their construction and operation, except as set forth on
Schedule 2.21 hereto. Providential has clear title to all of its fictional
business names, trading names, registered and unregistered trademarks, service
marks and applications (collectively, the "Marks") and these items of
"Intellectual Property" are included as Tangible Assets
2.22 LIABILITIES. PROVIDENTIAL did not have any direct or indirect
indebtedness,
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liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including, without limitation, any
liability on account of taxes, any governmental charge or lawsuit (all of the
foregoing collectively defined to as "Liabilities"), which are not fully, fairly
and adequately reflected on the Financial Statement, except for a specific
Liabilities set forth on Schedule 2.22 attached hereto and made a part hereof.
As of the date of Closing, PROVIDENTIAL will not have any Liabilities, other
than Liabilities fully and adequately reflected on the Financial Statements
except for Liabilities incurred in the ordinary course of business and as set
forth in Schedule 2.22. To the best knowledge of the Shareholders, there is no
circumstance, condition, event or arrangement which may hereafter give rise to
any Liabilities not in the ordinary course of business.
2.23 OPERATIONS OF PROVIDENTIAL. From the date of the Financial
Statements through the date of Closing, PROVIDENTIAL has not and will not have:
(i) incurred any indebtedness or borrowed money;
(ii) declared or paid any dividend or declared or
made any distribution of any kind to any shareholder, or made
any direct or indirect redemption, retirement, purchase or
other acquisition of any shares in its capital stock, other
than the Private Placement occurring on October 27, 1999,
wherein 3,000,000 shares of restricted common stock will be
issued in exchange for $3,750,000 in cash and marketable
securities;
(iii) made any loan or advance to any shareholder,
officer, director, employee, consultant, agent or other
representative or made any other loan or advance otherwise
than in the ordinary course of business;
(iv) except in the ordinary course of business,
incurred or assumed any indebtedness or liability (whether or
not currently due and payable);
(v) disposed of any assets of PROVIDENTIAL except in
the ordinary course of business;
(vi) materially increased the annual level of
compensation of any executive employee of PROVIDENTIAL;
(vii) increased, terminated, amended or otherwise
modified any plan for the benefit of employees of
PROVIDENTIAL;
(viii) issued any equity securities or rights to
acquire such equity securities; or
(ix) except in the ordinary course of business,
entered into or
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modified any contract, agreement or transaction.
2.24 CAPITALIZATION. The authorized capital stock of PROVIDENTIAL
consists of 40,000,000 shares of common stock, no par value, of which 20,000,000
shares are presently issued and outstanding (or committed to be issued), and
20,000,000 shares of preferred stock, with a par value of $5.00 per share, all
of which have been designated Class A Cumulative Preferred Stock, 10,000,000 of
which have been designated Series I Class A Convertible Cumulative Preferred
Stock ("Series I Stock") and 10,000,000 of which have been designated Series II
Class A Cumulative Convertible Preferred Stock ("Series II Stock"), and of which
103,000 shares of Series I Stock and no (0) shares of Series II Stock are
currently issued and outstanding. PROVIDENTIAL is current with respect to all
dividend obligations. Immediately prior to the Closing Date, all of the holders
of Preferred Stock will either convert their shares into shares of Common Stock
on the basis of one share of Common Stock for each share of Preferred Stock, or
will enter into a convertible promissory note, in the amount of their original
investment resulting in the issuance of Preferred Stock, having a right to
convert into Common Stock at the conversion price of $5.00 per share, with a
conversion right limited to two years from the date of Closing. PROVIDENTIAL has
not granted, issued or agreed to grant, issue or make any warrants, options,
subscription rights or any other commitments of any character relating to the
issued or unissued shares of capital stock of PROVIDENTIAL except as set forth
on Schedule 2.24 attached hereto and made a part hereof. PROVIDENTIAL has no
subsidiaries.
2.25 ACCESS TO RECORDS. The corporate financial records, minute books
and other documents and records of PROVIDENTIAL have been made available to JRCI
prior to the Closing hereof.
2.26 FULL DISCLOSURE. No representation or warranty by PROVIDENTIAL or
the Majority Shareholders in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished by PROVIDENTIAL pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to a complete and correct presentation of
all material aspects of the business of PROVIDENTIAL, and/or the status of the
PROVIDENTIAL Shares.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF JRCI
JRCI hereby represents and warrants as follows:
3.1 ORGANIZATION AND GOOD STANDING. JRCI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. It has the corporate power to own its own property and to carry on its
business as now being
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conducted and is duly qualified to do business in any jurisdiction where so
required except where the failure to so qualify would have no material adverse
effect on its business.
3.2 CORPORATE AUTHORITY. JRCI has the corporate power to enter into
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby has been, or will be prior to the Closing Date, duly authorized by the
Board of Directors of JRCI and a majority of the shareholders as required by
Nevada law. The execution and performance of this Agreement will not constitute
a material breach of any agreement, indenture, mortgage, license or other
instrument or document to which JRCI is a party and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to JRCI
or its properties. The execution and performance of this Agreement will not
violate or conflict with any provision of the Articles of Incorporation or
by-laws of JRCI.
3.3 THE JRCI SHARES. At the Closing, the JRCI Shares to be issued and
delivered to the Shareholders hereunder will when so issued and delivered,
constitute valid and legally issued shares of JRCI Common Stock, fully paid and
nonassessable.
3.4 FINANCIAL STATEMENT: BOOKS AND RECORDS. Attached as Exhibit 3.4 are
the audited financial statements (balance sheet, income statement and Notes) of
JRCI for the fiscal year ended June 30, 1998 and unaudited draft financial
statements for the fiscal year ended at June 30, 1999 (collectively the
"Financial Statements"), which are not on file with the XXXXX system. The
Financial Statements fairly represent the financial position of JRCI as at such
date and the results of their operations for the periods then ended. The
Financial Statements were prepared in accordance with generally accepted
accounting principles applied on a consistent basis with prior periods except as
otherwise stated therein. The books of account and other financial records of
JRCI are in all respects complete and correct in all material respects and are
maintained in accordance with good business and accounting practices.
3.5 NO MATERIAL ADVERSE CHANGES.
Except as described on Schedule 3.5, since June 30, 1999, there has not
been:
(i) any material adverse changes in the financial
position of JRCI except changes arising in the ordinary course
of business, which changes will in no event materially and
adversely affect the financial position of JRCI.
(ii) any damage, destruction or loss materially
affecting the assets, prospective business, operations or
condition (financial or otherwise) of JRCI whether or not
covered by insurance;
(iii) any declaration setting aside or payment of any
dividend or distribution with respect to any redemption or
repurchase of JRCI capital
12
stock, other than as agreed upon among the parties, with the
acknowledgement that all existing subsidiaries of JRCI will be
sold on or before the Closing on terms to be discussed but
requiring no further commitment of resources by PROVIDENTIAL
OR JRCI following closing;
(iv) any sale of an asset (other than as described in
(iii) above, or in the ordinary course of business) or any
mortgage pledge by JRCI of any properties or assets; or
(v) adoption or modification of any pension, profit
sharing, retirement, stock bonus, stock option or similar plan
or arrangement.
(vi) except in the ordinary course of business,
incurred or assumed any indebtedness or liability, whether or
not currently due and payable;
(vii) any loan or advance to any shareholder,
officer, director, employee, consultant, agent or other
representative or made any other loan or advance otherwise
than in the ordinary course of business;
(viii) any material increase in the annual level of
compensation of any executive employee of JRCI;
(ix) except in the ordinary course of business,
entered into or modified any contract, agreement or
transaction;
(x) issued any equity securities or rights to acquire
equity securities, other than as set forth in Schedule 3.5,
which will include the 2-for-1 reverse agreed upon as a
condition preceding Closing.
3.6 TAXES. JRCI has not filed any tax, governmental and/or related
forms and reports (or extensions thereof) due or required to be filed. JRCI's
accountants are in the process of filing JRCI's tax returns. To the best of
managements' knowledge, JRCI's tax returns will reflect losses for such periods
and any taxes due as a result of such returns will not have a material adverse
effect on JRCI.
3.7 COMPLIANCE WITH LAWS. Except as described on Schedule 3.7, JRCI has
complied with all federal, state, county and local laws, ordinances,
regulations, inspections, orders, judgments, injunctions, awards or decrees
applicable to it or its business, which, if not complied with, would materially
and adversely affect the business of JRCI.
3.8 ACTIONS AND PROCEEDINGS. JRCI is not a party to any material
pending litigation or, to its knowledge, any governmental proceedings are
threatened against JRCI, except as set forth in JRCI's periodic reports filed
with the SEC.
13
3.9 PERIODIC REPORTS. JRCI'S periodic reports filed pursuant to the
Securities Exchange Act of 1934, as amended, as of their respective dates, did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstance under which they were made, not misleading.
3.10 CAPITALIZATION. As of the Closing Date, and after the 2-for-1
reverse, there are approximately 1774 shareholders of record that are the owners
of 6,690,629 shares of JRCI Common Stock, none of which owns in excess of 5% of
the issued and outstanding shares, except as may be set forth in JRCI'S periodic
reports filed with the SEC. There are no outstanding warrants, issued stock
options, stock rights or other commitments of any character relating to the
issued or unissued shares of either Common Stock or Preferred Stock of JRCI.
3.11 ACCESS TO RECORDS. The corporate financial records, minute books,
and other documents and records of JRCI have been made available to PROVIDENTIAL
prior to the Closing hereof.
3.12 NO BREACH. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of
Incorporation or By-Laws of JRCI;
(ii) violate, conflict with or result in the breach
of any of the material terms of, result in a material
modification of, otherwise give any other contracting party
the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or
other agreement to which JRCI is a party or by or to which it
or any of its assets or properties may be bound or subject;
(iii) violate any order, judgment, injunction, award
or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, JRCI or upon the
securities, properties or business to JRCI; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated
herein, which violation could have a material adverse effect
on the business or operations of JRCI.
3.13 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
JRCI in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions of JRCI.
3.14 CORPORATE AUTHORITY. JRCI has the corporate power to enter into
this
14
Agreement and to perform its respective obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transaction contemplated
hereby have been duly authorized by the Board of Directors and a majority of the
Shareholders of JRCI. The execution and performance of this Agreement will not
constitute a material breach of any agreement, indenture, mortgage, license or
other instrument or document to which JRCI is a party and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to JRCI
or its properties. The execution and performance of this Agreement will not
violate or conflict with any provision of the Certificate of Incorporation or
by-laws of JRCI.
3.15 FULL DISCLOSURE. No representation or warranty by JRCI in this
Agreement or in any document or schedule to be delivered by them pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished by JRCI pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to complete and correct presentation of all material aspects of the business of
JRCI.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF PROVIDENTIAL
SHAREHOLDERS. All obligations of the Majority Shareholders under this Agreement
are subject to the fulfillment, prior to or as of the Closing Date, as indicated
below, of each of the following conditions:
(a) The representations and warranties by or on
behalf of JRCI contained in this Agreement or in any
certificate or document delivered pursuant to the provisions
hereof shall be true in all material respects at and as of
Closing Date as though such representations and warranties
were made at and as of such time.
(b) JRCI shall have performed and complied in all
material respects, with all covenants, agreements, and
conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or
complied with or executed and delivered by them prior to or at
the Closing.
(c) On or before the Closing, the Board of Directors
and a majority of the shareholders of JRCI shall have
approved, in accordance with Nevada law, the execution,
delivery and performance of this Agreement and the
consummation of the transaction contemplated herein and
authorized all of the necessary and proper action to enable
JRCI to comply with the terms of the Agreement, to include a
2-for-1 reverse split of the issued and outstanding common
stock.
15
(d) JRCI shall have sufficient shares of JRCI Common
Stock authorized but unissued to complete the Exchange.
(e) All instruments and documents delivered to
PROVIDENTIAL and the Shareholders pursuant to provisions
hereof shall be reasonably satisfactory to legal counsel for
PROVIDENTIAL.
(f) The liability to The Long Island Savings Bank
F.S.B. described in the litigation matter styled THE LONG
ISLAND SAVINGS BANK F.S.B. ("LISB") V. PRIMA MANAGEMENT, PRIMA
EASTWEST MODEL MANAGEMENT, INC., XXXXXXX XXXX, XXXXXX X. XXXXX
AND XXXXXX DASH, Supreme Court of the State of New York County
of Suffolk, Index No. 3904-97, and XXXXXXX XXXX V. THE LONG
ISLAND SAVINGS BANK F.S.B., JR CONSULTING, INC., PEMM
ACQUISITION CORPORATION AND PRIMA EASTWEST MODEL MANAGEMENT,
INC., United States District Court, Eastern District of New
York, Case No CV-97-0756 (IS), will be satisfied and, in
connection therewith, releases and/or Satisfactions of
Judgment shall have been exchanged among the appropriate
parties.
4.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF JRCI AND JRCI
SHAREHOLDERS. All obligations of JRCI under this Agreement are subject to the
fulfillment, prior to or at Closing, of each of the following conditions:
(a) The representations and warranties by
PROVIDENTIAL and its Majority Shareholders, contained in this
Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material
respects at and as of the Closing as though such
representations and warranties were made at and as of such
time;
(b) PROVIDENTIAL and its Shareholders shall have
performed and complied with, in all material respects, with
all covenants, agreements, and conditions set forth in, and
shall have executed and delivered all documents required by
this Agreement to be performed or complied or executed and
delivered by them prior to or at the Closing;
(c) Providential shall have tendered a minimum of
$60,000 and a maximum of $100,000 to JRCI, to be utilized for
purposes of payment of legal and accounting fees incident to
this merger agreement and the reporting obligations of JRCI.
These funds will be the property of JRCI, such that any excess
will remain in JRCI and not be transferred during or
concomitant with the sale of the any subsidiaries. These funds
will also be non-returnable, such that if the transaction
contemplated by this Agreement is not consummated, no portion
of the funds will be returned.
(d) Consent of the National Association of Securities
Dealers, Inc.,
16
pursuant to Rules 2710, 2720 and 1018 of the NASD Membership
and Registration Rules shall have been obtained.
(e) Each of the exchanging shareholders will execute
a representation letter in the form attached hereto as exhibit
4(e).
(f) JRCI will have effected aa 2-for-1 reverse stock
split of its common stock.
SECTION 5. COVENANTS
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing
Date, the parties acknowledge that they have been entitled, through their
employees and representatives, to make such investigation of the assets,
properties, business and operations, books, records and financial condition of
the other as they each may reasonably require. No investigations, by a party
hereto shall, however, diminish or waive any of the representations, warranties,
covenants or agreements of the party under this Agreement.
5.2 FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing, including, without limitation, the
execution and delivery of any documents or other papers, the execution and
delivery of which are necessary or appropriate to the Closing.
5.3 REVERSE STOCK SPLIT. JRCI agrees to effect a pre-closing 2-for-1
reverse stock split. After Closing, PROVIDENTIAL agrees that JRCI will not
effect a reverse-stock-split, consolidation or reclassification of its
securities for a period of 1 year from the date of this Agreement.
5.4 SETTLEMENT OF LITIGATION. JRCI will receive a Satisfaction of
Judgment with respect to the litigation matters described in Section 4.1(f) and
(g) above.
5.5 PURCHASE AND SALE OF DIVA. JRCI has reached an agreement to sell to
Havilland Limited ("Havilland"), all of the shares of Diva Entertainment, Inc.
("Diva") owned by JRCI as well as to assign to Havilland all of its rights,
title and interest in that certain Option Agreement dated as of April 1, 1999,
between Diva, formerly known as Quasar Projects Company and JRCI, on the terms
generally described on Schedule 5.5. Within ten business days of the Closing
Date, or such earlier date as Havilland shall request, in its complete and sole
discretion, JRCI will consummate the sale of Diva to Havilland or its designee
on the terms described above.
5.6 CONFIDENTIALITY. In the event the transactions contemplated by this
Agreement
17
are not consummated, JRCI, PROVIDENTIAL and the Shareholders agree to keep
confidential any information disclosed to each other in connection therewith for
a period of three (3) years from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of the disclosure was public
knowledge;
(ii) after the time of disclosure becomes public
knowledge (except due to the action of the receiving party);
or
(iii) the receiving party had within its possession
at the time of disclosure; or
(iv) is ordered disclosed by a Court of proper
jurisdiction.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Notwithstanding any right of either party to investigate the affairs of
the other party and its Shareholders, each party has the right to rely fully
upon representations, warranties, covenants and agreements of the other party
and its Shareholders contained in this Agreement or in any document delivered to
one by the other or any of their representatives, in connection with the
transactions contemplated by this Agreement. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the closing hereunder for one year following the Closing.
SECTION 7. INDEMNIFICATION
For a period of three (3) years from the Closing, PROVIDENTIAL'S
Majority Shareholders jointly and severally agree to indemnify and hold harmless
JRCI its officers, directors and principal shareholders, and JRCI agrees to
indemnify and hold harmless the PROVIDENTIAL Shareholders, at all times after
the date of this Agreement against and in respect of any liability, damage, or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses, including attorneys' fees, incident to any of the foregoing,
resulting from any material misrepresentation made by any indemnifying party to
an indemnified party, an indemnifying party's breach of a covenant or warranty
or an indemnifying party's nonfulfillment of any agreement hereunder, or from
any material misrepresentation or omission from any certificate furnished or to
be furnished hereunder.
If the indemnified party receives written notice of the commencement of
any legal action, suit or proceeding with respect to which the indemnifying
party is or may be obligated to provide indemnification pursuant to this
Section, the indemnified party shall, within 30 days of the receipt of such
written notice, give the indemnifying party written
18
notice thereof (a "Claim Notice"). Failure to give such Claim Notice within such
30 day period shall not constitute a waiver by the indemnified party or its
rights to indemnity hereunder with respect to such action, suit or proceeding
unless the defense thereof is prejudiced thereby. Upon receipt by the
indemnifying party of a Claim Notice from the indemnified party with respect to
any claim for indemnification which is based upon a claim made by a third party
("Third Party Claim"), the indemnifying party may assume the defense of the
Third Party Claim with counsel of its own choosing, as described below. The
indemnified party shall cooperate in the defense of the Third Party Claim and
shall furnish such records, information and testimony and attend all such
conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably required in connection therewith. The indemnified party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of the indemnified party unless
the indemnifying party shall not have with reasonable promptness employed
counsel to assume the defense of the Third Party Claim, in which event such fees
and expenses shall be borne solely by the indemnifying party. The indemnifying
party shall not satisfy or settle any Third Party Claim for which
indemnification has been sought and is available hereunder, without the prior
written consent of the indemnified party, which consent shall not be delayed or
which shall not be required if the indemnified party is granted a release in
connection therewith. If the indemnifying party shall fail with reasonable
promptness to defend such Third Party Claim, the indemnified party may defend,
satisfy or settle the Third Party Claim at the expense of the indemnifying party
and the indemnifying party shall pay to the indemnified party the amount of such
Loss within ten days after written demand thereof. The indemnification
provisions hereof shall survive the termination of this Agreement.
SECTION 8. DOCUMENTS AT CLOSING AND THE CLOSING
8.1 DOCUMENTS AT CLOSING. At the Closing, the following transactions
shall occur, all of such transactions being deemed to occur simultaneously:
(a) PROVIDENTIAL will deliver, or will cause to be delivered,
to JRCI the following:
(i) a certificate executed by the President and
Secretary of PROVIDENTIAL to the effect that all
representations and warranties made by PROVIDENTIAL under this
Agreement are true and correct as of the Closing, the same as
though originally given to JRCI on said date;
(ii) a certificate from the State of California dated
at or about the Closing to the effect that PROVIDENTIAL is in
good standing under the laws of said State;
(iii) PROVIDENTIAL and its Shareholders shall deliver
an opinion of
19
its legal counsel, limited as to any portion of the opinion as
to an aspect of the agreement governed by the application of
Delaware or New York law, to JRCI to the effect that:
(a) PROVIDENTIAL is a corporation validly
existing and in good standing under the laws of the
State of California and is duly qualified to do
business in any jurisdiction where so required except
where the failure to so qualify would have no
material adverse impact on the company;
(b) PROVIDENTIAL has the corporate power to
carry on its business as now being conducted; and
(c) This Agreement has been duly authorized,
executed and delivered by PROVIDENTIAL.
(iv) A letter of consent to the transaction from the
NASD.
(v) Stock certificates representing those shares of
PROVIDENTIAL to be exchanged for JRCI Shares will be
delivered, along with duly executed stock powers transferring
such shares to JRCI.
(vi) all other items, the delivery of which is a
condition precedent to the obligations of JRCI, as set forth
in Section 4.
(b) JRCI will deliver or cause to be delivered to PROVIDENTIAL
and the Providential Shareholders:
(i) a certificate from JRCI executed by the President
or Secretary of JRCI, to the effect that all representations
and warranties of JRCI made under this Agreement are true and
correct as of the Closing, the same as though originally given
to PROVIDENTIAL on said date;
(ii) certified copies of resolutions by JRCI Board of
Directors authorizing this transaction; and an opinion of JRCI
counsel as described in Section 4 above;
(iii) certificates from the Nevada Secretary of State
dated at or about the Closing Date that JRCI is in good
standing under the laws of said State;
(iv) an opinion of counsel, limited as to any portion
of the opinion that applies to an aspect governed by the
application of Delaware or Nevada law, dated as of the Closing
to the effect that:
20
(1) JRCI is a corporation validly existing
and in good standing under the laws of
the State of Nevada;
(2) This Agreement has been duly authorized
executed and delivered by JRCI and is a
valid and binding obligation of JRCI
enforceable in accordance with its
terms;
(3) JRCI, through its Board of Directors
and its shareholders, has taken all
corporate action necessary for
performance under this Agreement;
(4) The documents executed and delivered to
PROVIDENTIAL and the PROVIDENTIAL
Shareholders hereunder are valid and
binding in accordance with their terms
to the shares of JRCI Shares to be
issued pursuant to Section 1.1 hereof,
and such Shares will be duly and
validly issued, fully paid and
non-assessable; and
(5) JRCI has the corporate power to execute
the Agreement, deliver the Shares and
perform under this Agreement.
(vi) resignations of Xxxxx Xxxx and Xxxxxxx Xxxxxx;
(vii) consent of Xxxxx Xxxxxxxxx, remaining director,
designating two directors to fill the vacancies created by the
resignations of Xxxxx Xxxx and Xxxxxxx Xxxxxx, and appointing
new directors and officer;
(viii) resignation of Xxxxx X. Xxxxxxxxx as an
officer and director;
(ix) release signed by Xxxxxx Xxxxx and Satisfaction
of Judgment signed by LISB with respect to the litigation
matters described in Section 4.1(f) above;
(x) all other items, the delivery of which is a
condition precedent to the obligations of PROVIDENTIAL, as set
forth in Section 4 hereof.
8.2 THE CLOSING. The Closing shall take place at the time or place as
may be agreed upon by the parties hereto. At the Closing, the parties shall
provide each other with such documents as may be necessary.
SECTION 9. MISCELLANEOUS
21
9. 1 WAIVERS. The waiver of a breach of this Agreement or the failure
of any party hereto to exercise any right under this Agreement shall in no way
constitute waiver as to future breach whether similar or dissimilar in nature or
as to the exercise of any further right under this Agreement.
9.2 AMENDMENT. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
9.3 ASSIGNMENT. This Agreement is not assignable except by operation of
law.
9.4 NOTICE. Until otherwise specified in writing, the mailing addresses
and fax numbers of the parties of this Agreement shall be as follows:
To: JRCI:
Xxxxx Xxxxxxxxx, President
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
with copy to:
Xxxxxx Xxxxxxxxxxx, Esquire
Certilman, Balin, Xxxxx and Human
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
To: PROVIDENTIAL:
Xxxxx Xxxxxx, Chairman and CEO
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
with copy to:
Xxxxxxxxx & Associates
00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Any notice or statement given under this Agreement shall be deemed to have been
given
22
if sent by registered mail addressed to the other party at the address indicated
above or at such other address which shall have been furnished in writing to the
addressor.
9.5 GOVERNING LAW. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Delaware, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
9.6 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance by the other party.
9.7 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules to be attached hereto) and the collateral agreements executed in
connection with the consummation of the transactions contemplated herein contain
the entire agreement among the parties with respect to the exchange and issuance
of the Shares and the JRCI Shares and related transactions, and supersede all
prior agreements, written or oral, with respect thereto.
9.8 HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
9.9 SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
9.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
9.11 BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
9.12 TAX TREATMENT. JRCI, PROVIDENTIAL and the Majority Shareholders
acknowledge that they each have been represented by their own tax advisors in
connection with this transaction; that none of them has made a representation or
warranty to any of the other parties with respect to the tax treatment accorded
this transaction, or the effect individually or corporately on any party under
the applicable tax laws, regulations, or interpretations; and that no opinion of
counsel or private revenue ruling has been obtained with respect to the effects
of this transaction under the Code.
9.14 PRESS RELEASES. The parties will mutually agree as to the wording
and timing of any informational releases concerning this transaction prior to
and through Closing.
23
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
JR CONSULTING, INC.
a Nevada corporation
By: /s/ XXXXX XXXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxxx
President
PROVIDENTIAL SECURITIES, INC.
a California corporation
By: /s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx
President / Chief Executive Officer
SHAREHOLDER SIGNATURES ON NEXT PAGE
"MAJORITY SHAREHOLDERS:"
/s/ XXXXX XXXXXX
--------------------------------------------
Xxxxx Xxxxxx
/s/ XXX X. LE
--------------------------------------------
Xxx X. Le
/s/ MYAN XXX XXXX
--------------------------------------------
Myan Xxx Xxxx
/s/ XXXXXXX X. FAHMAN
--------------------------------------------
Xxxxxxx X. Fahman
/s/ XXXX X. XXXXXX
--------------------------------------------
Xxxx X. Xxxxxx
/s/ XXXX X. XXXX
--------------------------------------------
Xxxx X. Xxxx
/s/ THEODORE FAHMAN
--------------------------------------------
Theodore Fahman
/s/
--------------------------------------------
Synaca, Ltd.
/s/ XXXXX XXXXXXXXX
--------------------------------------------
Xxxxxxxxx & Associates (as shareholder)
