AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION is entered into as of this 25th
day of April, 2002 by and between WAVE POWER. NET, INC. (the "Company"), a
Delaware corporation, whose address is 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxx
Xxxxx, XX 00000 and VIA-TEK, INC. ("Via-Tek") a Delaware corporation, whose
address is 0000 Xxxxx Xxxx #00, Xxxxxxx Xxxx, Xxxx 00000.
RECITAL
A. The Company and Via-Tek desire to effect a Type B reorganization
under Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended,
on the terms and conditions set forth below, whereby the Company will acquire
all of the issued and outstanding shares of Via-Tek common stock by issuing
solely in exchange therefore to Via-Tek shareholders, shares of the Company's
Common Capital Stock (the "Company Stock").
NOW THEREFORE in consideration of the foregoing recitals, the mutual
representations, warranties and covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
I. BASIC TRANSACTION.
1.1 Plan of Reorganization. Subject to the terms and conditions of
this Agreement and pursuant to Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended, the parties to this Agreement shall effect a Type B
reorganization (the "Reorganization") whereby all of the outstanding shares of
Via-Tek common stock will be exchanged for 18,000,000 post reverse split
shares of the Company's Common Stock. The Reorganization shall take place on
the Closing Date (hereinafter defined in Section 1.2 of this Agreement) and
shall be accomplished in accordance with Article V below.
1.2 Closing. The closing of the Reorganization and exchange
contemplated and provided for in this Agreement (the "Closing") shall take at
a time and place to be mutually agreed upon by the parties on the third
business day following the satisfaction or waiver or all conditions to the
obligations of the parties to consummate the subject reorganization and
exchange (other than the conditions with respect to actions the respective
parties will take at the Closing itself) or such other date as the parties may
mutually determine (the "Closing Date"). It is the parties intention to close
this transaction as soon as practicable, however, the Closing Date shall occur
no later than May 15, 2002, absent regulatory delays or breach.
1.3 Terms of Exchange. On the Closing Date the Company shall:
a. Will cause to be delivered to the Via-Tek shareholders certificates
or rights representing 18,000,000 equivalent post-reverse split shares
(as set forth in Section 1.3(b) below herein) of the Company's Common
Capital Stock, in consideration for the transfer to the Company by the
Via-Tek's shareholders of all the common shares of the capital stock of
Via-Tek issued and outstanding as of the Closing Date. No other shares
of any preference or type of Via-Tek are outstanding on the date of this
Agreement or shall be outstanding on the Closing Date; and
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b. The parties agree that a 1:5 reverse stock split of the shares of
the Company shall occur on or after the Closing. The Company and its
principal shareholders have consented to the reverse stock split and the
issuance of additional shares of common stock to the Via-Tek
shareholders to effectuate the post reverse split total of 18,000,000
shares to Via-Tek shareholders and/or assigns. The parties agree that
the surviving entity shall have no more than 31,816,000 post-split
shares issued and outstanding after the consummation of the transaction
proposed hererin, which shall include 1,816,000 to be registered under
Form S-8 for past services due and owing management.
c. The Via-Tek shareholders shall, in consideration for their receipt
of the shares of the Company's Common Capital Stock, transfer and
deliver to the Company certificates representing all of the issued and
outstanding shares of Via-Tek common stock owned by them. The Company
shall receive good and marketable title to all of Via-Tek issued and
outstanding common stock free and clear of all liens, mortgages,
pledges, claims or other rights or encumbrances whatever, whether
disclosed or undisclosed.
d. That on January 19, 2002, the Company entered into an agreement with
"Seville Consulting, Inc. and its Investors" ("Seville"), whereby, if
and when, the transaction between Via-Tek and the Company becomes
effective, in return for providing the financial means enabling Via-Tek
to enter into this transaction, Seville is to be compensated in post
merger common stock shares. Among other things, the agreement calls for
Seville to make period payments to the Company through an escrow
arrangement up and through May 15, 2002. Seville has agreed to pay
$1250 in escrow costs on or before May 15, 2002 to Network Marketing
Resources. Failure of Seville to make the aforementioned payments in a
timely fashion as set forth in their agreement, could result, at the
Company's option, in the cancellation of the merger between Via-Tek and
the Company.
In addition, the Company has outstanding debts in the amount of
$158,405. To date, $148,005 has been paid by Seville. In consideration
for the payment of the full amount, $158,405, the Company has agreed to
issue to Seville, and/or assigns, 8,444,000 shares of its common stock.
1.4 Restrictions on Transfer. The Company's Common Capital Stock, when
issued and delivered hereunder, shall not be registered under the Securities
Act of 1933, as amended, nor shall the Via-Tek shareholders be granted any
registration rights as to such shares. Each certificate representing shares of
the Company's Common Capital Stock will bear a customary restrictive legend
which states in effect that such shares have not been registered under the
Securities Act of 1933, as amended (the "Act") and consequently may not be
transferred, assigned, sold or hypothecated unless registered under the Act,
in the opinion of Company's counsel, an exemption from the registration
requirements of the Act is available for such transaction.
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II. REPRESENTATIONS AND WARRANTIES.
2.1 Representations and Warranties of Via-Tek. Via-Tek hereby
represents and warrants to the Company that the statements contained in this
Section 2.1 are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though then and as though
the Closing Date were substituted for the date of this Agreement throughout
this Section 2.1), except as set forth in the disclosure schedule accompanying
this Agreement (the "Via-Tek Disclosure Statement"). The Via-Tek Disclosure
Statement will be arranged in paragraphs corresponding to the lettered
subsections contained in this Section 2.1.
a. Due Organization. Via-Tek is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
and is qualified to do business and is in good standing in all
jurisdictions in which such qualification is necessary. Via-Tek has all
requisite corporate power and authority to conduct its business, to own
its properties and to execute and deliver, and to perform all of its
obligations under this Agreement to which it is a party.
b. Due Authority. The execution, delivery and performance under this
Agreement and the documents provided for herein by Via-Tek have been
authorized by all necessary corporate action; provided, however, that
Via-Tek cannot consummate the Reorganization unless or until it receives
the requisite approval from its shareholders.
c. Capitalization. Via-Tek authorized capitalization presently
consists of shares of capital stock, no par value, of which, as of the
date hereof, _________ shares are issued and outstanding and _______
shares have been reserved for issuance based upon certain specified
contingencies. All issued and outstanding shares have been duly
authorized, validly issued and fully paid and nonassessable, and subject
to no preemptive rights of any shareholder.
d . Outstanding Options, Warrants or Other Rights. Via-Tek has no
outstanding warrants, options or similar rights whereby any person may
subscribe for or purchase shares of its common stock, nor are there any
other securities outstanding which are convertible into or exchangeable
for its common stock, and there are no contracts or commitments pursuant
to which any person may acquire or Via-Tek may become bound to issue any
shares of such common stock.
e. Copies of Documents Genuine. All copies of Via-Tek articles of
incorporation and bylaws (each as amended to date) and all minutes of
meetings or written consents in lieu of meetings of shareholders,
directors and committees of directors of Via-Tek which have been or will
be furnished to the Company are true, complete, correct and unmodified
copies of such documents.
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f. Officers and Directors. The officers and directors of Via-Tek
consists of the following:
Name Office
---- ------
Xxxxx Xxxxxx President-Director
Xxxxxxx X. Xxxxxxx Vice President
Xxxxx Xxxxxxx Secretary-Treasurer
Xxxxxx Xxxxxxx Director
X.X. Xxxxxxxxxxx Director
g. Noncontravention. The execution of this Agreement by Via-Tek and
the consummation of the transactions contemplated hereby will not result
in the breach of any term or provision of, or constitute a default
under, any provision or restrictions of any indenture, agreement, or
other instrument or any judgment, order, or decree to which Via-Tek is a
party or by which it is bound, or will it conflict with any provisions
or the Articles of Incorporation or Bylaws of Via-Tek.
h. Litigation. There are no suits, actions or proceedings at law or
in equity, pending or threatened against or affecting Via-Tek that can
be expected to result in any materially adverse change in the business,
properties, operations, prospects, or assets or in its condition,
financial or otherwise.
i. Laws and Regulations. Via-Tek has complied with all laws, rules,
regulations and ordinances relating to or affecting the conduct of
Via-Tek business and Via-Tek possesses and holds all licenses and
permits required in its business by federal, state or local authorities.
j. Full Disclosure. Neither this Agreement nor any other instrument
furnished to the Company by or on behalf of Via-Tek contains any untrue
statement of a material fact or omits to state a material fact necessary
to make any statements made not misleading, and there is no fact that
materially and adversely affects, or foreseeably may materially and
adversely affect, Via-Tek's financial condition, liabilities, business,
or assets that have not been disclosed herein or in any other
instrument.
k. Representations and Warranties True at Closing. Except as expressly
herein otherwise provided, all of the representations and warranties of
Via-Tek set forth herein shall be true as of the Closing Date as though
such representations and warranties were made on and as of such date.
l. Reverse Splits. Via-Tek hereby warrants and avers that, post
merger, that it will not enact a reverse split of its issued and
outstanding common stock shares nor its authorized common stock shares,
(other than as contemplated in this Agreement) for a period of 30
consecutive months from the date of Closing. Further, Via-Tek agrees
that this provision shall carry over should Via-Tek merge with, or be
acquired by, another entity during this 30 month period or, should
Via-Tek become a subsidiary of another entity.
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m. Shareholders. Appended to this Agreement are schedules setting
forth the names, addresses, social security numbers and number of shares
of stock held by each shareholder of Via-Tekand Wave Power Net's
respective equity holders.
2.2 Representations and Warranties of the Company. The Company
represents and warrants to Via-Tek and its shareholders that the statements
contained in this Section 2.2 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
then and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 2.2), except as set forth in the disclosure
schedule accompanying this Agreement (the "Company Disclosure Statement").
The Company Disclosure Statement will be arranged in paragraphs corresponding
to the lettered subsections contained in this Section 2.2.
a. Organization. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
and is qualified to do business and is in good standing in all
jurisdictions in which such qualification is necessary. The Company has
all requisite corporate power and authority to conduct its business, to
own its properties and to execute and deliver, and to perform all of its
obligations under this Agreement to which it is a party.
b. Due Authority. The execution, delivery and performance under this
Agreement and the documents provided for herein by Company have been
authorized by all necessary corporate action.
c. Capitalization. The Company's authorized capitalization presently
consists of 75,000,000 shares of capital stock, $0.001 par value, of
which as of April 20, 2002, 17,780,000 shares are issued and
outstanding. All issued and ________ outstanding shares have been duly
authorized, validly issued and fully paid and nonassessable and all
shares of Company's Common Capital Stock to be issued and delivered on
the Closing Date to the Via-Tek shareholders pursuant to the Agreement
will be, when so delivered, duly authorized and validly issued and
outstanding, fully paid and non-assessable, free and clear of any lien,
charge, claim or encumbrance whatsoever and subject to no preemptive
rights of any Shareholder. No other class of stock (common or
preferred) is, or has been authorized or issued by the Company, its
Articles of Incorporation or By-Laws.
d. Outstanding Options, Warrants or Other Rights. Except as set forth
in the Company Disclosure Statement, the Company has no outstanding
warrants, options or similar rights whereby any person may subscribe for
or purchase shares of its common stock, nor are there any other
securities outstanding which are convertible into or exchangeable for
its common stock, and there are no contracts or commitments pursuant to
which any person may acquire or Via-Tek may become bound to issue any
shares of such common stock.
e. Financial Statements. The Company has provided Via-Tek with its
most recent audited financial statements dated December 31, 2002. These
financial statements have been prepared in accordance with generally
accepted accounting principles, are correct, complete, and fairly
represent the financial position and results of operations of the
Company as of said date and for the periods indicated.
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f. Adverse Changes. Since the date of the financial statements
described in Section 2.2(e) above, there have not been, and prior to the
Closing Date, there will not be, any material changes in the financial
position of the Company and its subsidiaries (if any) except changes
arising in the ordinary course of business and except changes that are
otherwise disclosed in writing to Via-Tek.
g. Undisclosed Liabilities. The Company does not have any liability
(whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated
or unliquidated, and whether due or to become due) except for
liabilities set forth on the face of the Balance Sheet delivered to
Via-Tek in accordance with the provisions of Section 2.2(e) above, and
liabilities which have arisen after the date of the financial statements
provided in accordance with the provisions of Section 2.2(e) above in
the ordinary course of the Company business.
h. Noncontravention. The execution of this Agreement by the Company and
the consummation of the transactions contemplated hereby will not result
in the breach of any term or provision of, or constitute a default
under, any provision or restrictions of any indenture, agreement, or
other instrument or any judgment, order, or decree to which the Company
is a party or by which it is bound, or will it conflict with any
provisions or the Articles of Incorporation or Bylaws of the Company.
i. SEC Filings. The Company has made all filings with the SEC that it
has been required to make under the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended (collectively the
Public Reports). Each of the Public Reports has complied with the
Securities Act and the Securities Exchange Act in all material respects.
None of the Public Reports, as of their respective dates, contained any
untrue statement of a material fact, or omitted to state a material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. All SEC
filings by the Company within the last twelve months have been made in a
timely fashion without extension. The Company's stock presently trades
on the NASD bulletin board under the symbol "WPDN." No order or
determination of any regulatory agency, body or association is pending
or threatened which would cause the company to have its shares
"de-listed" or otherwise prevented from being offered for sale.
j. Litigation. There are no suits, actions or proceedings at law or in
equity, pending or threatened against or affecting the Company that can
be expected to result in any materially adverse change in the Company or
its assets.
k. Representations and Warranties True at Closing. Except as expressly
herein otherwise provided, all of the representations and warranties of
the Company set forth herein shall be true as of the Closing Date as
though such representations and warranties were made on and as of such
date.
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III. COVENANTS.
From the date of this Agreement until the Closing Date, the Company and
Via-Tek agree as follows:
3.1 General. Each of the parties hereto will use its best efforts to
take all actions and to do all things necessary in order to consummate and
make effective the transaction contemplated by this Agreement (including
satisfaction of the closing conditions set forth in Article IV below).
3.2 Notices and Consents. Each of the parties hereto will give any
notices to third parties, and will use its best efforts to obtain any third
party consents, that the other party reasonably may request in connection with
any matter referred to in Sections 2.1 or 2.2 above.
3.3 Regulatory Matters and Approvals. Each of the parties hereto will
give notices to, make any filings with, and use its best efforts to obtain any
authorizations, consents and approvals of governments and governmental
agencies in connection with the matters referred to in Sections 2.1 and 2.2
above. Without limiting the generality of the foregoing:
a. Securities Law Compliance. The Company will take all actions as may
be necessary, proper and advisable, under Federal and state securities
laws in connect with the offering and issuance of the Common Capital
Stock to the Via-Tek shareholders in connection with the Reorganization
provided for under this Agreement and as required to complete the
transaction as contemplated.
b. Delaware Corporation Law. The Company will obtain, as soon as
reasonably practicable, any required consents or approvals providing for
the acquisition of Via-Tek, all in accordance with the provisions of the
Delaware Corporation Law. If statutorily obligated, Via-Tek will call
a special meeting of its shareholders as soon as reasonably practicable
in order that its shareholders may consider and vote upon the adoption
of this Agreement and the approval of the Reorganization with the
resultant sale and transfer to the Company of all of the issued and
outstanding shares of Via-Tek common stock.
3.4 Operations of Business. Via-Tek will not engage in any practice,
take any action, or enter into any transaction outside the ordinary course of
business. Without limiting the generality of the foregoing, Via-Tek will not:
a. authorize or effect any change in its charter or bylaws;
x. xxxxx any options, warrants or other rights to purchase or obtain
any of its capital stock or issue, sell, or otherwise dispose of any of
its capital stock (except upon the conversion or exercise of options,
warrants, and other rights currently outstanding);
c. declare, set aside, or pay any dividend or distribution with respect
to its capital stock (whether in cash or in kind), or redeem, repurchase
or otherwise acquire any of its capital stock;
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d. Issue any note, bond or other debt security or create, incur,assume,
or guarantee any indebtedness for borrowed money or capitalized lease
obligations outside the ordinary course of business except for a working
line of credit up to $2,000,000 which Via-Tekis currently pursuing with
several financial institutions;
x. Xxxxx any security interest on, or otherwise pledge, any of its
assets outside the ordinary course of business except as it pertains to
the indebtedness excepted in subsection (d) above;
f. Make any capital investment in, make any loan to, or acquire the
securities or assets of any other person or entity outside the ordinary
course of business; and
g. Make any change in management terms for any of its directors,
officers and employees outside the ordinary course of business.
h. Assign, license, pledge, or hypothecate any patent, patent
pending, intellectual property, trade names, trade secrets or other
proprietary assets.
3.5 Access. The Company and Via-Tek each agree that they will permit
the others directors, officers, accountants, attorneys and other
representatives full access, during reasonable business hours throughout the
term or applicability of this Agreement, to all premises, properties,
personnel, books, records, contracts and documents of or pertaining to the
others business affairs, operations, properties and financial affairs as the
other party may reasonably request. All information provided shall be
furnished strictly subject to the confidentiality provision of this Agreement.
3.6 Confidentiality. All information and documents furnished by a
party pursuant to Section 3.5 of this Agreement shall be deemed and treated as
proprietary in nature. Each party (and the Via-Tek shareholders) agree that it
shall hold all information received from another party pursuant to or in
connection with this Agreement in the highest and strictest confidence and
shall not reveal any such information to any individual who is not one of its
directors, officers, key employee, attorney or accountant, and that it will
not use any such information obtained for any purpose whatsoever other than
assisting in its due diligence inquiry precedent to the Closing and, if this
Agreement is terminated for any reason whatsoever, agrees to return to the
other party any all tangible embodiments (and all copies) thereof which are in
its possession. This covenant shall survive the consummation or termination
of this Agreement.
3.7 Publicity and Filings. All press releases, shareholder
communications, filings with the Securities and Exchange Commission or other
governmental agency or body and other information and publicity generated by
the Company or Via-Tek regarding the Reorganization and exchange contemplated
in this Agreement shall be reviewed and approved by the other party and its
counsel before release or dissemination to the public or filing with any
governmental agency or body whatever. Post-Closing the Company and Via-Tek
will provide each other with such documents, information, assistance and
cooperation as may be reasonably required to complete on a timely fashion, all
required filings with any state, local, federal or regulatory body or agency.
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3.8 Notice of Developments. Each party hereto will give prompt written
notice to the other of any material adverse development causing a breach of
any of its own representations and warranties in Sections 2.1 and 2.2 above.
No disclosure by any party hereto pursuant to this Section 3.8, however, shall
be deemed to amend or supplement the disclosure statement provided under the
terms of this Agreement or to prevent or cure any breach of warranty, breach
of covenant or misrepresentation.
3.9 Stand-Still Agreement. Neither the Company nor Via-Tek will (and
each Via-Tek Shareholder agrees that it will not on behalf of Via-Tek)
solicit, initiate, or encourage the submission of any proposal or offer from
any person or entity relating to any other transaction pending the closing of
the transaction contemplated herein (including any acquisition structured as a
merger, consolidation, or share exchange).
3.10 Covenants of Via-Tek shareholders. Each of the Via-Tek
shareholders covenants and agrees with, and represents to, the Company as
follows:
a. No Registration of Company Stock. Each of the Via-Tek shareholders
understands that none of the Common Shares to be received from the
Company at Closing have been registered under the Securities Act of
1933, as amended, or any applicable securities laws of any state. Each
of the Shareholders hereby represents and warrants that the Shares are
being acquired by him solely for investment and not with a view to
distribution or immediate resale thereof.
b. Stock Legend. Each of the Via-Tek shareholders further agree and
understand that each certificate representing such shares of the Shares
issued under the Reorganization and exchange provided for under this
Agreement will bear the customary restrictive legend conspicuously noted
on said certificate.
3.11 Election of Officers. The Company agrees that Xxxxx Xxxxxx, the
current President of Via-Tek, shall become President of the Company and of
Via-Tek after the consummation of the Reorganization and exchange provided for
under the terms of this Agreement and shall be further authorized, subject to
approval of Via-Tek existing Board of Directors, to select the officers and
directors of Via-Tek. The Company covenants and agrees to approve of the
selections made by Xxxxx Xxxxxx, X.X. Xxxxxxxxxxx and Xxxxxx Xxxxxxx shall be
appointed, effective as of the Closing Date, as members of the Company's
majority Board of Directors. This covenant shall survive the consummation of
this Agreement.
3.12 Employment Agreement. The Company agrees that the employment
Agreement and intellectual property rights assignment between Via-Tek and
Xxxxxx Xxxxxxx shall continue in effect according to the terms thereof. This
covenant shall survive the consummation of this Agreement.
3.13 Patent and Asset Verification. The Company shall have verified
that the assets and patents, patents pending and other proprietary assets are
duly and legally in the name of Via-Tek and represent those products including
the hydrogen generator and ultra capacitor stack.
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4. CONDITIONS TO THE EXCHANGE.
4.1 Conditions Precedent to Exchange by Company. The obligation of the
Company to consummate the Reorganization contemplated by this Agreement are
subject to satisfaction, or written waiver by the Company, of the following
conditions at or before the Closing Date:
(a) Representations and Warranties True. The representations and
warranties by Via-Tek and the Via-Tek shareholders in the Agreement
shall have been correct on and as of the Closing Date with the same
force and effect (except as expressly provided in the Agreement or
otherwise approved in writing by the Company) as though such
representations and warranties had been made on and as of the Closing
Date.
(b) No Adverse Change. Via-Tek shall not have suffered any adverse
change in its financial condition or business and no properties or
assets of Via-Tek shall have suffered any destruction, damage or loss,
whether or not covered by insurance.
(c) Performance. Via-Tek and the Via-Tek shareholders shall have
performed all of the terms, covenants, agreements and conditions of the
Agreement on their respective parts to be performed.
(d) Shareholder Approval. The Via-Tek shareholders shall have approved
the terms and conditions of the Reorganization resulting in the issuance
of the Common Shares as provided for herein and no Via-Tek shareholder
shall dissent with respect to the Reorganization provided for in this
Agreement.
(e) Legal Opinion. The Company shall have received the favorable
written opinion of counsel for Via-Tek as to those matters set forth an
Exhibit to be attached hereto and any other matter which the Company may
reasonably requested in connection with the Reorganization provided for
in this Agreement. In rendering the required opinion, counsel may, as to
any factual matter, rely upon a certificate of any public official and
any officer of Via-Tek who is cognizant of such fact.
(f) No Restraint. No injunction or restraining order shall be in
effect to forbid or enjoin the consummation of this Agreement.
(g) Approval of Documents. All legal matters in connection with the
consummation of the Reorganization contemplated by this Agreement and
all documents and instruments delivered in connection therewith shall be
reasonably satisfactory in form and in substance to counsel for the
Company and such counsel shall have received authenticated copies of
those copies of the corporate documents and certificates as counsel for
the Company may reasonably request in connection with this transaction.
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(h) Officers Certifications. Each Party shall have received a
certificate signed by the President and Chief Executive Officer
verifying the accuracy of the information provided and that the Company
is in compliance with the terms of this Agreement.
4.2 Conditions to Via-Tek's Obligations. The obligations of Via-Tek
and the Via-Tek shareholders to consummate the Reorganization contemplated by
this Agreement are subject to satisfaction or written waiver by Via-Tek and
the Via-Tek shareholders of the following conditions at or before the Closing
Date:
(a) Representations and Warranties True. The representations and
warranties by the Company in the Agreement shall have been correct on
and as of the Closing Date with the same force and effect (except as
expressly provided in the Agreement or otherwise approved in writing by
the Shareholders) as though such representations and warranties had been
made on and as of the Closing Date.
(b) No Adverse Change. The Company shall not have suffered any adverse
change in its financial condition or business and no properties or
assets of the Company shall have suffered any destruction, damage or
loss, whether or not covered by insurance.
(c) Performance. The Company shall have performed all of the terms,
covenants, agreements and conditions of the Agreement on its part to be
performed.
(d) No Restraint. No injunction or restraining order shall be in
effect to forbid or enjoin the consummation of this Agreement.
(e) Approval of Documents. All legal matters in connection with the
consummation of the Reorganization contemplated by this Agreement and
all documents and instruments delivered in connection therewith shall be
reasonably satisfactory in form and in substance to counsel for Via-Tek
and such counsel shall have received authenticated copies of those
copies of the corporate documents and certificates as counsel for
Via-Tek may reasonably request in connection with this transaction.
(f) Regulatory Matters. There shall have been no proceeding, completed,
pending or threatened by any regulatory body, the effect of which would
result in a fine to the Company or suspension of the Company's right to
sell its stock in the public market or the right to have its stock
listed on any nationally recognized exchange. An opinion of counsel, by
a qualified Securities Exchange Commission lawyer, shall be provided to
Via-Tek stating that no 14(c) filing is necessary under the terms
contemplated under this Agreement.
(g) Liabilities. The Company shall have no liabilities at the time of
closing and shall have paid all sums due to its transfer agent up to the
date of closing.
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V. ACTIONS AT CLOSING.
5.1 Exchange. Each ______ shares of Via-Tek common stock that shall be
outstanding on the Closing Date and held by a Via-Tek shareholder shall be
converted into _________ fully paid and nonassessable shares of the Company's
Common Capital Stock; provided, however, that the number of shares of the
Company's Common Capital Stock into which shares of Via-Tek common stock are
to converted shall be rounded off to the nearest whole number of shares, and
no fractional shares shall be issued. The number of shares of the Company's
Common Capital Stock that each Via-Tek shareholder shall receive in exchange
for his or her shares of Via-Tek common stock are set forth as an Exhibit and
attached hereto.
5.2 Shareholders' Actions at Closing. On the Closing Date, the
Shareholders, contemporaneously with the performance by Company of its
obligations to be performed at the Closing, shall deliver to the Company the
following:
(a) Via-Tek Stock Certificates. Stock certificates representing all of
the outstanding shares of Via-Tek common stock endorsed for transfer,
with all necessary stock assignments and other pertinent documents.
(b) Certified Corporate Resolutions. Certified copy of the resolutions
duly adopted by the Board of Directors and the shareholders of Via-Tek
authorizing and approving the execution and delivery of this Agreement
and the performance of its obligations hereunder.
(c) Opinion. The opinion of counsel as described in Section 4.2(f) of
this Agreement; and
(d) Other Documents. Such further certificates and documents as shall
be reasonably requested by counsel for the Company to insure compliance
by Via-Tek and Via-Tek shareholders of all obligations imposed upon them
hereunder.
5.3 Company's Actions at Closing. On the Closing Date, the Company,
contemporaneously with the performance by Via-Tek and the Via-Tek shareholders
of their obligations to be performed at the Closing, shall deliver to the
Via-Tek shareholders the following:
(a) Company Common Capital Stock Certificates. Stock certificates
representing an aggregate of 18,000,000 post split shares of Company's
Common Capital Stock (or approximately 41,000,000 pre-split common
shares with rights as provided in section 1.3(b)) to which each Via-Tek
shareholder shall be entitled to receive pursuant to this Agreement, as
set forth as an Exhibit and attached hereto, with each certificate
bearing the restrictive legend described in Section 1.4 above.
(b) Certified Corporate Resolutions. Certified copy of the resolutions
duly adopted by the Board of Directors of the Company authorizing and
approving the execution and delivery of this Agreement by the Company
and the performance of its obligations hereunder.
(c) Opinion. The opinion of counsel as described in Section 4.1(f) of
this Agreement; and
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(d) Other Documents. Such further certificates and documents as shall
be reasonably requested by counsel to Via-Tek and Via-Tek shareholders
to insure compliance by the Company with all obligations imposed upon it
hereunder.
5.4 Stock Rights. On the Closing Date, the Via-Tek shareholders who
have exchanged their shares of Via-Tek common stock for shares of the
Company's Common Capital Stock shall thereupon cease to have any rights with
respect to their Via-Tek shares and their sole right thereafter shall be with
respect to the shares of the Company's Common Capital Stock received
hereunder.
VI. TERMINATION.
6.1 Termination of Agreement. This Agreement may be terminated as
provided below:
(a) The parties hereto may terminate this Agreement by mutual consent
at any time prior to the Closing Date;
(b) The Company may terminate this Agreement by giving written notice
to the Shareholders at any time prior to the Closing Date; (1) in the
event Via-Tek and/or its Shareholders have breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect or, Seville Consulting, Inc., has breached any material
representation, warranty, or covenant contained in the January 19, 2002
agreement between Seville Consulting, Inc. et al, and the selling
shareholders of the Company, or as a result of any direct or indirect
acts, intentional or unintentional acts, or acts of omission by Via-Tek
or Seville Consulting, Inc., this transaction may be unwound with all
parties concerned returned to their status quo. The Company must notify
Via-Tek and Seville Consulting, Inc., in writing, of this breach, and if
the breach has continued without cure for a period of 7 days after the
notice of breach, or (2) if the Closing shall not have occurred on or
before May 15, 2002 by reason of the failure of any condition precedent
under Section 4.1 (a-h, inclusive) hereof (unless the failure results
primarily from the Company breaching any representation, warranty, or
covenant contained in this Agreement or unless delayed by regulatory
approval beyond the control of the Parties); and
(c) Via-Tek and the Via-Tek shareholders may terminate this agreement
by giving written notice to the Company at any time prior to the Closing
Date (1) in the event the Company has breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect, Via-Tek and the Via-Tek shareholders have notified the
Company of this breach, and the breach has continued without cure for a
period of 7 days after the notice of breach, or (2) if the Closing shall
not have occurred on or before May 15, 2002 by reason of the failure of
any condition precedent under Section 4.2 (a-h, inclusive) hereof
(unless the failure results primarily from the Shareholders and/or
Via-Tek breaching any representation, warranty, or covenant contained in
this Agreement).
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(d) It is the parties intention to close this transaction as soon as
practicable, however, the Closing Date shall occur no later than May 15,
2002, absent regulatory delays. At the Company's option, per written
notice to the last known addresses of Via-Tek and Seville Consulting,
Inc., should the closing not take place on or before May 15, 2002 as a
result of any direct or indirect acts, intentional or unintentional
acts, or acts of omission by Via-Tek or Seville Consulting, Inc., the
transaction may be unwound with all parties concerned returned to their
status quo. Any costs borne by the Company as a result of such a
breach, will be paid by Via-Tek and/or Seville Consulting, Inc.
Further, any and all monies paid to the Company and/or its assigns or
nominees, are shall be deemed non-refundable if the Buyers are unable or
unwilling to Close by May 15, 2002, except in the event of Company or
its shareholders delay the closing (with or without otherwise breaching
this Agreement) or, in the event the closing is delayed due to
regulatory matters beyond the control of Via-Tek or Seville Consulting,
Inc.
6.2 Effect of Termination. If any party hereto terminates this
Agreement pursuant to Section 6.1(a) above, all rights and obligations of the
parties hereunder shall terminate without any liability of any party to the
other party (except for any liability of any Party then in breach). Should
this transaction be unilaterally terminated without cause by Via-Tek or
Seville Consulting, Inc., as set forth in Section 6.1(b), any costs borne by
the Company as a result, will be paid by Via-Tek and/or Seville Consulting,
Inc. Further, any and all monies paid to the Company and/or its assigns or
nominees, will be deemed non-refundable if the Buyers are unable or unwilling
to Close by May 15, 2002, except in the event of Company or its shareholders
delay the closing (with or without otherwise breaching this Agreement) or in
the event the closing is delayed due to regulatory matters beyond the control
of Via-Tek or Seville Consulting, Inc.
VII. GENERAL PROVISIONS.
7.1 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties concerning the subject matter hereof and
supersedes any and all prior negotiations, understandings or agreements in
regard thereto.
7.2 Applicable Law. This Agreement shall be construed in accordance
and governed by the laws of the State of Delaware.
7.3 Notices. Unless otherwise changed by notice given in accordance
with this provision, any notice or other communications required or permitted
herein shall be deemed given if delivered personally or sent by certified
mail, postage prepaid, return receipt requested, addressed to the other
parties at the addresses set forth above or, in the case of the Shareholders,
at the address set forth their signature.
7.4 Waiver. All rights and remedies under this Agreement are
cumulative and are not exclusive of any other rights and remedies provided by
law. No delay or failure in the exercise of any right or remedy arising under
this Agreement shall operate as a waiver of any subsequent right or remedy
subsequently arising under this Agreement.
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7.5 Survival of Provisions. All agreements, representations, covenants
and warranties on the part of the parties contained herein or in any
instrument executed and delivered in connection herewith shall survive closing
of this Agreement and any investigation at any time made with respect thereto.
7.6 Attorney's Fees. In the event of litigation for enforcement of the
terms of this Agreement or to enforce any remedy hereunder, the prevailing
party shall be entitled to recover from the other party any and all costs and
expenses, including reasonable attorney's fees, as may be incurred.
7.7 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective personal
representatives, successors and assigns.
7.8 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.9 Execution by Facsimile. Facsimile execution of this Agreement by
any party is authorized and shall be binding upon all parties.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original hereof.
IN WITNESS WHEREOF, this Agreement has been executed on the date first above
written.
WAVE POWER NET, INC.
By: ______________________
Xxxxx Xxxxxx, President
VIA-TEK, INC.
By: ______________________
Xxxxx Xxxxxx, President
SHAREHOLDER AGREEMENTS AND COVENANTS
THE UNDERSIGNED, each being shareholders of Via-Tek, Inc. ("Via-Tek"),
hereby represent that they own the number of shares of Via-Tek common stock as
set forth beneath their respective signature below and further covenant and
agree to comply with, undertake to perform, and abide by, the various
covenants, warranties and undertakings as set forth in the foregoing Agreement
and Plan of Reorganization dated April __, 2002 by and between Via-Tek, Inc.
and Wave Xxxxx.Xxx, Inc. This document shall be incorporated by reference in
the Plan of Reorganization dated April __, 2002 by and between Via-Tek, Inc.
and Wave Xxxxx.Xxx, Inc.
EXECUTED on the date set forth below the respective signatures.
SHAREHOLDERS:
Name:_____________________
Number of Shares:_________
Date:__________
Name:_____________________
Number of Shares:_________
Date:__________
Name:_____________________
Number of Shares:_________
Date:__________
