EXHIBIT 2.6
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AGREEMENT
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This Agreement (this "Agreement") is entered into as of February
10, 2003 by and between BTSL TECHNOLOGIES LIMITED, an Irish limited
liability company ("BTSL"), and CONSOLIDATED RESOURCES GROUP, INC., a
Florida corporation ("CSRG"). Certain other capitalized terms used
herein are defined in Article VIII and throughout this Agreement.
RECITALS
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The Boards of Directors of BTSL and CSRG have determined that it
is in the best interests of their respective shareholders for BTSL to
acquire TecEnergy Enterprises Limited, an Irish limited liability
company and a wholly-owned subsidiary of CSRG ("TecEnergy"), upon the
terms and subject to the conditions set forth in this Agreement. In
order to effectuate the transaction, BTSL shall acquire all of the
outstanding shares of capital stock of TecEnergy from CSRG, and as a
result, TecEnergy will become a wholly-owned subsidiary of BTSL.
TERMS OF AGREEMENT
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In consideration of the mutual representations, warranties,
covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
THE TRANSACTION
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1.1 Transaction. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 1.2), BTSL, or its
nominee, shall acquire and CSRG shall sell, convey, transfer, assign
and deliver to BTSL all of the issued and outstanding shares of
capital stock and any other rights comprising all of the capital stock
of TecEnergy (the "TecEnergy Shares"), free and clear of any Liens.
In exchange for the TecEnergy Shares, the aggregate consideration that
will be paid by BTSL (the "BTSL Consideration") shall be equal to
2,200,000 shares of common stock, par value $.001 per share, of CSRG
(the "CSRG Common Stock").
1.2 Closing. Subject to the terms and conditions of this
Agreement, the consummation of the transactions contemplated hereby
(the "Closing") shall take place on the date hereof after the
satisfaction or waiver of the conditions set forth in Articles V and
VI, at the offices of BTSL's counsel, or such other time and place as
the parties may otherwise agree. The date on which the Closing occurs
shall be herein referred to as the "Closing Date."
1.3 Transfers. At the Closing, CSRG shall deliver to BTSL, or
its nominee, the certificate representing the TecEnergy Shares, along
with a stock power with respect to such certificate duly endorsed to
Exhibit 2.6
BTSL, and BTSL shall deliver to CSRG the BTSL Consideration payable
pursuant to Section 1.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BTSL
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As a material inducement to CSRG to enter into this Agreement and
to consummate the transactions contemplated hereby, BTSL makes the
following representations and warranties to CSRG as of the Closing
Date:
2.1 Corporate Status. BTSL is a limited liability company duly
organized, validly existing and in good standing under the laws of
Ireland.
2.2 Corporate Power and Authority. BTSL has the corporate
power and authority to execute and deliver the Transaction Documents
(as defined below), to perform its obligations thereunder and to
consummate the transactions contemplated thereby. BTSL has taken all
action necessary to authorize its execution and delivery of the
Transaction Documents, the performance of its obligations thereunder
and the consummation of the transactions contemplated thereby.
2.3 Enforceability. The Transaction Documents have been duly
executed and delivered by BTSL and constitute legal, valid and binding
obligations of BTSL, enforceable against BTSL in accordance with their
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general equitable
principles regardless of whether such enforceability is considered in
a proceeding at law or in equity.
2.4 No Violation. The execution and delivery of the
Transaction Documents by BTSL, the performance by it of its
obligations thereunder and the consummation by it of the transactions
contemplated thereby will not (i) contravene any provision of the
Articles of Association or Memorandum of Association of BTSL, (ii)
violate or conflict with any law, statute, ordinance, rule,
regulation, decree, writ, injunction, judgment or order of any
Governmental Authority or of any arbitration award which is either
applicable to, binding upon or enforceable against BTSL, or any of its
assets, (iii) conflict with, result in any breach of, or constitute a
default (or an event which would, with the passage of time or the
giving of notice or both, constitute a default) under, or give rise to
a right to terminate, amend, modify, abandon or accelerate, any
Contract which is applicable to, binding upon or enforceable against
BTSL, or any of its properties or assets, or to which it is a party,
(iv) result in or require the creation or imposition of any Lien upon
or with respect to any of the properties or assets of BTSL, or (v)
require BTSL to obtain the consent, approval, authorization or permit
of, or file with or notify, any Governmental Authority, any court or
tribunal or any other Person.
2.5 Accuracy of Information Furnished by BTSL. No statement or
information made or furnished by BTSL to CSRG or any of CSRG's
representatives, including those contained in this Agreement and the
various Schedules attached hereto and the other information and
statements referred to herein and previously furnished by BTSL,
contains or shall contain any untrue statement of a material fact or
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Exhibit 2.6
omits or shall omit any material fact necessary to make the
information contained therein not misleading.
2.6 Litigation. There is no action, suit, or other legal or
administrative proceeding or governmental investigation pending,
threatened, anticipated or contemplated (i) which could affect BTSL's
properties or assets, or (ii) to which BTSL is a party which questions
the validity or enforceability of this Agreement or the transactions
contemplated hereby, and there is no basis for any of the foregoing.
There are no outstanding orders, decrees or stipulations issued by any
Governmental Authority in any proceeding to which BTSL is or was a
party, or by which any of its properties or assets may be bound, which
have not been complied with in full or which continue to impose any
material obligations on BTSL.
2.7 No Commissions. BTSL has not incurred any obligation for
any finder's or broker's or agent's fees or commissions or similar
compensation in connection with the transactions contemplated by this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
CSRG
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As a material inducement to BTSL to enter into this Agreement and
to consummate the transactions contemplated hereby, CSRG makes the
following representations and warranties to BTSL as of the Closing
Date:
3.1 Corporate Status. CSRG is duly organized, validly existing
and in active status under the laws of its jurisdiction of
organization, and has the requisite power and authority to own or
lease its properties and to carry on its business as now being
conducted. CSRG is not qualified to transact business as a foreign
entity in any jurisdiction, and the nature of its properties and the
conduct of its business does not require such qualification. CSRG has
fully complied with all of the requirements of any law, statute,
ordinance, rule, regulation, decree, writ, injunction, judgment or
order governing the use and registration of fictitious names, and has
the legal right to use the names under which it operates its business.
There is no pending or threatened proceeding for the dissolution,
liquidation, insolvency or rehabilitation of TecEnergy, any Subsidiary
(as defined below) or CSRG.
3.2 Power and Authority. CSRG has the power and authority to
execute and deliver the Transaction Documents, to perform its
obligations thereunder and to consummate the transactions contemplated
thereby. CSRG has taken all action necessary to authorize the
execution and delivery of the Transaction Documents, the performance
of its obligations thereunder and the consummation of the transactions
contemplated thereby. The execution and delivery of the Transaction
Documents by CSRG, the performance by it of its obligations thereunder
and the consummation by it of the transactions contemplated by thereby
(i) have been approved by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in his capacity as a
director of CSRG, and (ii) do not require the consent or approval of
the shareholders of CSRG. ▇▇. ▇▇▇▇▇▇▇▇ was a director of CSRG prior
to the time BTSL acquired any shares of CSRG Common Stock, has held
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Exhibit 2.6
that status continuously since then through the Closing Date, and is a
"disinterested director" with respect to this Agreement and the
transactions contemplated hereby as defined in Section 607.0901(1)(h)
of the Florida Business Corporation Act.
3.3 Enforceability. The Transaction Documents have been duly
executed and delivered by CSRG, and constitute legal, valid and
binding obligations of CSRG, enforceable against it in accordance with
their terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and general
equitable principles regardless of whether such enforceability is
considered in a proceeding at law or in equity.
3.4 Capitalization. As of the date hereof, TecEnergy's issued
and outstanding capital stock consists solely of 1,000 ordinary
shares, such ordinary shares comprising all of the TecEnergy Shares.
All of the TecEnergy Shares and the issued and outstanding shares of
capital stock of each Subsidiary (i) have been duly authorized and
validly issued and are fully paid and non-assessable, (ii) were issued
in compliance with all applicable federal, state and foreign
securities laws, and (iii) were not issued in violation of any
preemptive rights or rights of first refusal. No preemptive rights or
rights of first refusal exist with respect to the shares of capital
stock of TecEnergy or any Subsidiary and no such rights arise by
virtue of or in connection with this Agreement and the transactions
contemplated hereby. Except as provided in Section 4.3(b) of this
Agreement, there are no outstanding or authorized rights, options,
warrants, convertible securities, subscription rights, conversion
rights, exchange rights or other agreements or commitments of any kind
(including, but not limited to, any agreements or commitments in favor
of CSRG or any of its Affiliates) that could require TecEnergy or any
Subsidiary to issue or sell any shares of its capital stock (or
securities convertible into or exchangeable for shares of its capital
stock). There are no outstanding stock appreciation, phantom stock,
profit participation or other similar rights with respect to TecEnergy
or any Subsidiary. There are no proxies, voting arrangements,
shareholder agreements or other agreements or understandings with
respect to the voting or transfer of the capital stock of TecEnergy or
any Subsidiary, including, but not limited to, any agreements or
understandings in favor of CSRG or any of its Affiliates. Neither
TecEnergy nor any Subsidiary is obligated to redeem or otherwise
acquire any of its outstanding shares of capital stock. As of the
Closing Date, all of the shares of CSRG Common Stock to be delivered
by BTSL to the Escrow Agent (as defined in the Escrow Agreement (as
defined below)) on the Closing Date pursuant to Section 5.5 below were
duly authorized and validly issued and are fully paid and
non-assessable, free of any preemptive rights or rights of first
refusal.
3.5 No Violation. The execution and delivery of the
Transaction Documents by CSRG and the performance by it of its
obligations hereunder and the consummation by it of the transactions
contemplated thereby will not (i) contravene any provision of the
Articles of Incorporation or Bylaws of CSRG, (ii) violate or conflict
with any law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment or order of any Governmental Authority or of any
arbitration award which is either applicable to, binding upon or
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Exhibit 2.6
enforceable against TecEnergy, any of the Subsidiaries or CSRG, or any
of their assets, (iii) conflict with, result in any breach of, or
constitute a default (or an event which would, with the passage of
time or the giving of notice or both, constitute a default) under, or
give rise to a right to terminate, amend, modify, abandon or
accelerate, any Contract which is applicable to, binding upon or
enforceable against TecEnergy, any of the Subsidiaries or CSRG, or any
of their properties or assets, or to which any of them is a party,
(iv) result in or require the creation or imposition of any Lien upon
or with respect to any of the properties or assets of TecEnergy, any
of the Subsidiaries or CSRG (including, but not limited to, the
TecEnergy Shares), or (v) require CSRG to obtain the consent,
approval, authorization or permit of, or file with or notify, any
Governmental Authority, any court or tribunal or any other Person,
except for any filings with the Securities and Exchange Commission
required to be made by CSRG.
3.6 Sole Shareholder. As of the date hereof, CSRG constitutes
the sole holder, beneficially and of record, of all of the issued and
outstanding shares of capital stock of TecEnergy (all of which such
shares comprise the TecEnergy Shares), and CSRG owns such shares free
and clear of all Liens, restrictions and claims of any kind. On the
Closing Date, CSRG will deliver to BTSL good and marketable title to
the TecEnergy Shares, free and clear of all Liens, restrictions and
claims of any kind. As of the date hereof, TecEnergy constitutes the
sole holder of all of the issued and outstanding shares of capital
stock of each Subsidiary, and TecEnergy owns such shares free and
clear of all Liens, restrictions and claims of any kind.
3.7 Subsidiaries. The entities listed on Schedule 3.7 are
direct, wholly-owned subsidiaries of TecEnergy (each, a "Subsidiary"
and, collectively, the "Subsidiaries"). Schedule 3.7 sets forth the
full capitalization of each Subsidiary. Except for the Subsidiaries,
TecEnergy does not own, directly or indirectly, any outstanding voting
securities of or other interests or investments in, or control, any
other corporation, partnership, company, joint venture or other
business entity.
3.8 No CSRG Related Directors or Officers. Subject to Section
6.5, and except for ▇▇▇ ▇▇▇▇▇▇, as of the Closing Date, no officer,
director, employee, independent contractor or consultant of CSRG or
any of its subsidiaries (other than TecEnergy) will be an officer,
director, employee, independent contractor or consultant of TecEnergy
or any of the Subsidiaries.
3.9 Certain Liabilities of TecEnergy and the Subsidiaries. As
of the Closing Date, neither TecEnergy nor any Subsidiary owes CSRG
(or any of its Affiliates) any dividends, preferences, distributions
or other payments on its capital stock.
3.10 Litigation. Except as set forth in Schedule 3.10, there is
no action, suit, or other legal or administrative proceeding or
governmental investigation pending, threatened, anticipated or
contemplated (i) which could affect any of TecEnergy's, any
Subsidiary's or CSRG's properties or assets, or (ii) to which
TecEnergy, any Subsidiary or CSRG is a party which questions the
validity or enforceability of this Agreement or the transactions
contemplated hereby, and there is no basis for any of the foregoing.
There are no outstanding orders, decrees or stipulations issued by any
Governmental Authority in any proceeding to which TecEnergy, any
Subsidiary or CSRG is or was a party, or by which any of their
properties or assets may be bound, which have not been complied with
in full or which continue to impose any material obligations on
TecEnergy, any Subsidiary or CSRG.
3.11 Good Title to Assets. Neither CSRG nor any of its
Affiliates has any Liens or claims of any kind whatsoever, whether
absolute or contingent, on or with respect to any of the properties or
assets of TecEnergy or any Subsidiary.
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Exhibit 2.6
3.12 Intercompany Transactions. As of the Closing Date, there
is no intercompany Indebtedness or other liabilities or obligations of
any kind (including, but not limited to, contingent liabilities)
between TecEnergy and CSRG, or between any Subsidiary and CSRG.
Neither TecEnergy nor any Subsidiary has guaranteed, or is otherwise
liable for, any Indebtedness or other obligations of CSRG or any of
its Affiliates. Neither TecEnergy nor any Subsidiary is liable for
any payments or other obligations of CSRG or any of its Affiliates
under any agreements with any Person. Except for this Agreement and
that certain 2001 Asset Purchase Agreement, dated December 5, 2001,
between BTSL and CSRG (the "2001 Asset Purchase Agreement"), there are
no Contracts of any kind between TecEnergy or any Subsidiary, on the
one hand, and CSRG or any of its directors, officers, employees or
other Affiliates, on the other hand. No officer, director or
shareholder or other Affiliate of CSRG, nor any Person related by
blood or marriage to any such Person, nor any entity in which any such
Person owns any beneficial interest, has any interest in any property
used by TecEnergy or any Subsidiary.
3.13 Employee Benefit Plans.
(a) To the Knowledge of CSRG, neither TecEnergy nor any
Subsidiary currently has, or has ever had, any Employee Benefit Plan
(as defined in clause (c) below). CSRG does not currently have, and
has never had, any Employment Benefit Plan in which any officer,
director, employee or consultant of TecEnergy or any Subsidiary is
entitled or eligible to participate.
(b) The consummation of the Closing, and the completion of
the other transactions contemplated by this Agreement, will not
trigger any liabilities or obligations of any kind under any Employee
Benefit Plan.
(c) For purposes hereof, "Employee Benefit Plan" means
any: (i) employee pension benefit plan as defined in Section 3(2) of
ERISA; (ii) multiemployer plan as defined in Section 3(37) of ERISA;
(iii) employee welfare benefit plan as defined in Section 3(1) of
ERISA; (iv) any stock option, bonus, stock purchase, or insurance plan
and any severance or termination pay plan or policy in which
employees, spouses or dependents participate; and (v) any other
employee benefit plan which is applicable to employees, spouses or
dependents.
3.14 Compliance with Laws. CSRG is and has been in full
compliance with all laws, regulations, ordinances and other legal
requirements applicable to it. CSRG is not subject to any Contract,
decree or injunction which restricts the continued operation of any
business of TecEnergy or any Subsidiary, or the expansion thereof to
other geographical areas, customers and suppliers or lines of
business.
3.15 Taxes. Neither TecEnergy nor any Subsidiary is a party to
any intercompany tax indemnity agreement, tax sharing agreement, or
other similar agreement under which it will have tax liability to or
with respect to CSRG or any of its Affiliates following the Closing.
To the Knowledge of CSRG, (i) CSRG has filed or caused to be filed all
Tax Returns of TecEnergy and each Subsidiary which have become due
(taking into account valid extensions of time to file), and has paid
or caused to be paid all Taxes shown thereon as due, (ii) there are no
outstanding Tax Liens that have been filed by any Tax Governmental
Authority against any property or assets of TecEnergy or any
Subsidiary, (iii) no claims are currently being asserted in writing
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Exhibit 2.6
with respect to any Taxes of TecEnergy or any Subsidiary, and (iv) no
audit or other investigation related to the Taxes of TecEnergy or any
Subsidiary is currently being conducted by any Governmental Authority.
3.16 Labor and Employment Matters. CSRG is not a party to or
bound by any collective bargaining agreement or any other agreement
with a labor union which could affect TecEnergy or any Subsidiary, or
any of their employees.
3.17 Insurance. The insurance policies of CSRG are independent
of and separate from the insurance policies of BTSL and each
Subsidiary and no actions or omissions of CSRG following the Closing
will have an adverse impact on the insurance policies of BTSL or any
Subsidiary, including, but not limited to, the premiums thereof.
3.18 No Adverse Actions. From the period commencing on the date
that CSRG acquired the TecEnergy Shares and ending on the Closing
Date, CSRG did not, either directly or indirectly (including, but not
limited to, through an Affiliate), and did not cause TecEnergy or any
of the Subsidiaries to, (i) transfer, sell, hypothecate or otherwise
convey, any assets of TecEnergy or any Subsidiary, other than
inventory in the ordinary course of business, or (ii) take any actions
or omit to take any actions that have materially adversely affected,
or that might after the Closing Date materially adversely affect,
TecEnergy or any Subsidiary, including, but not limited to, any
actions or omissions pursuant to which TecEnergy or any Subsidiary
might incur or become subject to any liabilities, losses or other
obligations of any kind after the Closing Date (including, but not
limited to, the failure to file any tax returns or pay any taxes
relating to TecEnergy or any Subsidiary).
3.19 Accuracy of Information Furnished by CSRG. No statement or
information made or furnished by CSRG to BTSL or any of BTSL's
representatives, including those contained in this Agreement and the
various Schedules attached hereto and the other information and
statements referred to herein and previously furnished by TecEnergy,
the Subsidiaries and/or CSRG, contains or shall contain any untrue
statement of a material fact or omits or shall omit any material fact
necessary to make the information contained therein not misleading.
CSRG has provided BTSL with true, accurate and complete copies of all
documents listed or described in the various Schedules attached
hereto.
3.20 Informed Business Decision by CSRG. CSRG acknowledges and
agrees that it has taken all steps it has deemed necessary to
investigate the business, properties, financial condition and future
prospects of TecEnergy and the Subsidiaries, that it is making an
informed business decision with respect to the transfer of the
TecEnergy Shares to BTSL and the other transactions contemplated by
this Agreement and that, subject to the terms of Section 4.3,
following the Closing, it will not have any ownership interest in, or
any rights whatsoever to participate in the business or affairs of,
TecEnergy or any Subsidiary.
3.21 Solvency.
(a) As of the Closing Date, CSRG is a solvent entity and
the consummation of the transactions contemplated hereby will not
render CSRG insolvent.
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Exhibit 2.6
(b) CSRG, by executing and delivering this Agreement or
any other document contemplated herein, or by entering into any of the
other transactions referred to in this Agreement, does not intend to
nor will its actions hinder, delay or defraud any Person to whom CSRG
is or becomes indebted or obligated to.
(c) In the event that CSRG files a voluntary petition
seeking relief under Title 11 of the United States Code ("Bankruptcy
Code"), or that CSRG becomes the subject of an involuntary bankruptcy
proceeding in which an order for relief is entered, or otherwise
becomes the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution,
assignment for the benefit of creditors, or similar relief under any
present or future federal, state or foreign laws or statutes relating
to bankruptcy, insolvency, or other relief for debtors, or CSRG seeks,
consents to or acquiesces in the appointment of a trustee, receiver,
conservator or liquidator, CSRG agrees that BTSL will not be
adequately protected and therefore will be entitled to immediate
relief from any automatic stay prescribed by applicable federal, state
or foreign laws or statutes including, but not limited to, 11 U.S.C.
Section 362, to enforce its rights under this Agreement. This entitlement
shall be irrespective of any of the requirements of any federal, state
or foreign laws or statutes including, but not limited to, 11 U.S.C.
Section 362, and BTSL shall not be obligated to satisfy those requirements
in order to obtain relief from any stay.
(d) To the extent that BTSL has received, or will receive,
by virtue of this Agreement, "transfers" BTSL has given reasonably
equivalent value and the exchanges for such transfers were done
contemporaneously.
(e) Notwithstanding the provisions of this Section 3.21,
in the event any payments made to, obligations incurred to, or
property transferred by, CSRG to BTSL, directly or indirectly, or any
part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside, voided, and/or required to be repaid or
transferred to a trustee, receiver or any other party appointed under
the Bankruptcy Code, any applicable federal, state or foreign laws or
statutes, common law or equitable cause, the obligation or part
thereof intended to be satisfied by CSRG under this Agreement shall be
reinstated or shall continue to be effective, as the case may be, and
shall remain fully enforceable pursuant to this Agreement and
applicable law to the extent that such payments or transfers are
voided, set aside or required to be disgorged.
3.22 No Commissions. Neither TecEnergy nor any Subsidiary nor
CSRG has incurred any obligation for any finder's or broker's or
agent's fees or commissions or similar compensation in connection with
this Agreement and the transactions contemplated hereby.
ARTICLE IV
ADDITIONAL AGREEMENTS
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4.1 Further Assurances; Compliance with Covenants. Each party
shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be necessary or
appropriate to effectuate, carry out and comply with all of the terms
of this Agreement and the transactions contemplated hereby. At the
Closing, TecEnergy and CSRG covenant and agree to deliver to BTSL the
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Exhibit 2.6
certificates, opinions and other documents required to be delivered to
BTSL pursuant to Article V, and BTSL covenants and agrees to deliver
to TecEnergy and CSRG the certificates and other documents required to
be delivered to TecEnergy and CSRG pursuant to Article VI.
4.2 Cooperation. Each of the parties agrees to cooperate with
the other in the preparation and filing of all forms, notifications,
reports and information required to be prepared or filed, or
reasonably deemed advisable to be prepared or filed, in connection
with this Agreement and the transactions contemplated hereby pursuant
to any law, rule or regulation, including, but not limited to,
pursuant to federal, state or foreign securities laws, and to use
their respective best efforts to agree jointly on a method to overcome
any objections by any Governmental Authority to any such transactions.
Immediately following the Closing, BTSL and CSRG shall issue a joint
press release regarding the Agreement and the transactions
contemplated hereby, the contents of which shall be mutually agreed
upon by BTSL and CSRG.
4.3 Certain Post-Closing Covenants.
(a) At the Closing, BTSL and CRSG shall execute an Escrow
Agreement, substantially in the form of Exhibit A to this Agreement
(the "Escrow Agreement"), and BTSL shall deliver to the Escrow Agent
stock certificates representing 6,467,161 of the shares of CSRG Common
Stock issued by CSRG in connection with the 2001 Asset Purchase
Agreement (the "Escrowed CSRG Shares"). Following the Closing, CSRG
shall pay to BTSL a total of $245,000 in cash (the "Cash Payment") via
wire transfer of immediately available funds as follows: (i) $5,000,
within five days of the Closing Date; (ii) $40,000, within 15 days of
the Closing Date (the "Second Payment"); and (iii) $25,000 per week
for each of the eight weeks immediately following the week during
which the Second Payment is made, with each of such weekly payments
due and payable on the same day of the week that the Second Payment is
made. Upon the payment by CSRG of the entire Cash Payment in
accordance with the terms of this Section 4.3(a), and subject to the
terms of the Escrow Agreement, the Escrow Agent shall deliver to CSRG
2,467,161 of the Escrowed CSRG Shares.
(b) At the Closing, CSRG shall receive from BTSL 5,252,839
warrants (collectively, the "BTSL Warrants"), evidenced by a
certificate (the "Certificate") substantially in the form of Exhibit B
to this Agreement. Upon the Exercise Date (as defined below), all of
the BTSL Warrants represented by the Certificate shall, in the
aggregate, without any further action on the part of the CSRG, entitle
CSRG to receive and automatically be converted into (i) such number of
ordinary shares of TecEnergy such that CSRG will own ten percent (10%)
of the total outstanding ordinary shares of TecEnergy owned by BTSL,
or (ii) in the event that TecEnergy consummates a transaction prior to
or on the Exercise Date pursuant to which the ordinary shares of
TecEnergy become wholly-owned by a Public Company (as defined below)
(a "Public Company Transaction"), ten percent (10%) of the total
consideration received by BTSL solely in exchange for BTSL's ordinary
shares of TecEnergy in the Public Company Transaction; provided,
however, that in the event that the foregoing produces a result which
would require the issuance or transfer of any fractional securities,
the number of securities which CSRG shall be entitled to receive shall
be rounded up to the next whole security so that no fractional
securities are issued or transferred. For the purposes of this
Agreement, a "Public Company" is an entity which has any class of
capital stock registered under Section 12 of the Securities Exchange
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Exhibit 2.6
Act of 1934, as amended (the "Exchange Act"). For the purposes of
this Agreement, the term "Exercise Date" means the earlier of (A) the
date which is 180 days following the Closing Date, or (B) the date on
which the Company consummates a Public Company Transaction. Prior to
the Exercise Date, BTSL covenants and agrees to cause TecEnergy to
conduct its operations in the ordinary course of business. BTSL
agrees to take, and to cause TecEnergy to take, any actions necessary
in order to consummate the transactions contemplated by this Section
4.3(b).
(c) During the 180-day period following the Closing Date,
BTSL will use its best efforts, within commercially reasonable
standards, to assist CSRG in obtaining possession of 140,000 shares of
CSRG's Series 2001 Convertible Preferred Stock, issued by CSRG in
connection with the 2001 Asset Purchase Agreement.
(d) As of the Closing Date, BTSL represents that there are
outstanding options to purchase 1,000,000 shares of CSRG Common Stock
issued by BTSL (the "BTSL Options"). In the event that, at any time
during the period commencing on the Closing Date and ending on
December 31, 2004 (the "Options Exercise Period"), any of such BTSL
Options are exercised by the holders thereof, (i) the number of
Escrowed CSRG Shares corresponding to such exercise shall immediately
be released from escrow directly to BTSL, and (ii) BTSL shall forward
to CSRG upon receipt the following amounts: (A) $.50 per Escrowed CSRG
Share released to BTSL pursuant to this Section 4.3(d), with respect
to the first 500,000 Escrowed CSRG Shares released; and (B) $.75 per
Escrowed CSRG Share released to BTSL pursuant to this Section 4.3(d),
with respect to the second 500,000 Escrowed CSRG Shares released.
Notwithstanding the foregoing, in no event shall the number of
Escrowed CSRG Shares released to BTSL pursuant to the exercise of the
BTSL Options exceed 1,000,000 in the aggregate. CSRG covenants and
agrees that it will not, during the Options Exercise Period,
consummate a combination, reverse stock split or transaction having
similar effect, that will cause a greater than 4-to-1 reduction in the
total shares of CSRG Common Stock outstanding as of the Closing Date.
Upon the earlier of (i) the exercise of all of the BTSL Options and
the delivery to BTSL of the corresponding number of Escrowed CSRG
Shares pursuant to this Section 4.3(d), or (ii) the expiration of the
Options Exercise Period (and subject to the terms of Section 4.3(e)
below), any Escrowed CSRG Shares thereafter remaining in escrow shall
immediately be released to CSRG. CSRG agrees to take any and all
actions reasonably necessary or advisable in order to effectuate the
terms of this Section 4.3(d) including, but not limited to, the
registration on CSRG's books and records of the Escrowed CSRG Shares
in the names of the holders of the BTSL Options (upon their exercise),
and the cancellation and re-issuance of the Escrowed CSRG Shares in
such denominations and in such names as are reasonably necessary or
advisable. The transactions described in this Section 4.3(d) shall be
subject to, and further governed by, the terms of the Escrow
Agreement.
(e) Notwithstanding anything to the contrary in this
Section 4.3, in the event that CSRG does not make the entire Cash
Payment on the terms set forth in Section 4.3(a), then, (i) all of the
Escrowed CSRG Shares shall immediately be released from escrow
directly to BTSL, and (ii) CSRG shall have no right to receive from
BTSL any amounts pursuant to the exercise of the BTSL Options as set
forth in Section 4.3(b).
(f) All of the covenants in this Section 4.3 shall be
independent of the Closing and the Closing shall, upon taking place,
be deemed final, irrevocable and binding on the parties hereto
10
Exhibit 2.6
regardless of whether any of the covenants in this Section 4.3 are
complied with. Except for the challenging of any transactions
consummated at or prior to the Closing which shall be deemed final
upon the Closing, a party shall have all remedies available to it at
law or equity for the breach by another party of any covenant in this
Section 4.3.
(g) For a period of two years following the Closing Date,
CSRG shall take any and all actions necessary to make any shares of
CSRG Common Stock held by BTSL or any of its shareholders, employees,
consultants or other Affiliates, eligible for public resale pursuant
to Rule 144 promulgated under the Securities Act.
4.4 Confidentiality; Publicity. Except as may be required by
law or as otherwise permitted or expressly contemplated herein, no
party hereto or their respective Affiliates, employees, agents and
representatives shall disclose to any third party this Agreement or
the subject matter or terms hereof without the prior consent of the
other parties hereto. No press release or other public announcement
related to this Agreement or the transactions contemplated hereby
shall be issued by any party hereto without the prior approval of the
other parties, except that CSRG and BTSL may make such public
disclosure which it believes in good faith to be required by law.
4.5 Return and Preservation of Confidential Information. Prior
to the Closing, CSRG and its Affiliates have had access to the
proprietary, confidential business information of TecEnergy and each
Subsidiary (the "Proprietary Information"). Prior to or upon the
Closing, CSRG agrees to promptly return any and all Proprietary
Information that is in hard copy or digital format to BTSL. Following
the Closing, unless otherwise compelled by a court of competent
jurisdiction, CSRG agrees not to, and to cause its Affiliates not to,
use or disclose the Proprietary Information to any third party other
than BTSL for any purpose.
4.6 Certain Tax Matters. The parties agree that after the
Closing, BTSL shall prepare, or cause to be prepared, and file, or
cause to be filed, all Tax Returns (including any amendments to
previously filed Tax Returns) for TecEnergy and each Subsidiary for
any period ending on or before the Closing. After the Closing, CSRG
shall provide BTSL with such information and records as may be
reasonably requested by BTSL in connection with the preparation of any
Tax Return or any audit or other proceeding relating to TecEnergy or
any Subsidiary.
4.7 Indemnification. The provisions of the articles of
incorporation and bylaws of CSRG with respect to indemnification of
directors and officers in effect as of the Closing Date shall not be
amended, repealed or otherwise modified for a period of three years
after the Closing Date in any manner that would adversely affect the
rights thereunder of individuals who at any time prior to the Closing
Date were directors or officers of CSRG, unless such amendment, repeal
or modification is required by law.
11
Exhibit 2.6
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF BTSL
-------------------------------------
The obligations of BTSL to effect the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing
of the following conditions, any or all of which may be waived in
whole or in part in writing by BTSL:
5.1 Accuracy of Representations and Warranties and Compliance
with Obligations. The representations and warranties of CSRG
contained in this Agreement shall be true and correct at and as of the
Closing except that those representations and warranties which address
matters only as of a particular date shall remain true and correct as
of such date. CSRG shall have performed and complied with all of its
obligations required by this Agreement to be performed or complied
with at or prior to the Closing. CSRG shall have delivered to BTSL a
certificate, dated as of the Closing Date, duly signed, certifying
that such representations and warranties are true and correct and that
all such obligations have been complied with and performed.
5.2 Corporate Certificates. CSRG shall have delivered to BTSL
(i) copies of the articles of incorporation and bylaws of CSRG, (ii)
copies of resolutions adopted by the Board of Directors of CSRG
authorizing the transactions contemplated by this Agreement, and (iii)
a certificate of good standing of CSRG issued by the Secretary of
State of the State of Florida as of a date not more than 30 days prior
to the Closing Date, certified in the case of subsections (i) and (ii)
of this Section, as of the Closing Date by the Secretary of CSRG as
being true, correct and complete.
5.3 Releases. CSRG shall have delivered to BTSL a release,
substantially in the form of Exhibit C to this Agreement, releasing
any claims of any nature that CSRG, or any of its officers, directors,
employees, consultants or other Affiliates, has, or may ever have had,
against BTSL, TecEnergy or any of the Subsidiaries, or any of their
officers, directors, employees, consultants or other Affiliates,
including, but not limited to, any claims arising out of or in
connection with the 2001 Asset Purchase Agreement, provided that such
releases shall not cover any rights of CSRG against BTSL, TecEnergy or
any Subsidiary, or any of their officers, directors, employees,
consultants or other Affiliates, under this Agreement or any of the
transactions contemplated hereby.
5.4 Opinion of Counsel. BTSL shall have received a legal
opinion from counsel for CSRG, dated as of the Closing Date, in a form
reasonably satisfactory to BTSL.
5.5 Escrow Agreement. BTSL and CSRG shall have executed the
Escrow Agreement substantially in the form of Exhibit A to this
Agreement, and BTSL shall have delivered to the Escrow Agent 6,467,161
of the shares of CSRG Common Stock issued by CSRG in connection with
the 2001 Asset Purchase Agreement, for further disbursement in
accordance with the terms of this Agreement and the Escrow Agreement.
5.6 Consents. CSRG shall have received consents to the
transactions contemplated hereby and waivers of rights to terminate or
modify any material rights or obligations of CSRG from any Person from
12
Exhibit 2.6
whom such consent or waiver is required under any Contract or
instrument or who, as a result of the transactions contemplated
hereby, would have such rights to terminate or modify such Contracts
or instruments, either by the terms thereof or as a matter of law.
5.7 No Order, Injunction or Adverse Litigation. No court of
competent jurisdiction or other governmental body shall have issued or
entered any order or injunction restraining or prohibiting the
transactions contemplated hereby, which remains in effect at the time
of the Closing. There shall not be pending or threatened any action
or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages
arising out of the transactions contemplated hereby, and which, in the
judgment of BTSL, in its discretion, makes it inadvisable to proceed
with the transactions contemplated hereby.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF
CSRG
--------------------------------
The obligations of CSRG to effect the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing
of the following conditions, any or all of which may be waived in
whole or in part in writing by CSRG:
6.1 Accuracy of Representations and Warranties and Compliance
with Obligations. The representations and warranties of BTSL
contained in this Agreement shall be true and correct at and as of the
Closing except that those representations and warranties which address
matters only as of a particular date shall remain true and correct as
of such date. BTSL shall have performed and complied with all of its
obligations required by this Agreement to be performed or complied
with at or prior to the Closing. BTSL shall have delivered to CSRG a
certificate, dated as of the Closing Date, and signed by an officer,
certifying that such representations and warranties are true and
correct and that all such obligations have been complied with and
performed.
6.2 Releases. BTSL shall have delivered to CSRG a release,
substantially in the form of Exhibit C to this Agreement, releasing
any claims of any nature that BTSL, or any of its officers, directors,
employees, consultants or other Affiliates, has, or may ever have had,
against CSRG, or any of its officers, directors, employees,
consultants or other Affiliates, including, but not limited to, any
claims arising out of or in connection with the 2001 Asset Purchase
Agreement, provided that such releases shall not cover any rights of
BTSL against CSRG, or any of its officers, directors, employees,
consultants or other Affiliates, under this Agreement or any of the
transactions contemplated hereby.
6.3 Opinion of Counsel. CSRG shall have received a legal
opinion from counsel for BTSL, dated as of the Closing Date, in a form
reasonably satisfactory to CSRG.
6.4 Escrow Agreement. BTSL and CSRG shall have executed the
Escrow Agreement substantially in the form of Exhibit A to this
Agreement, and BTSL shall have delivered to the Escrow Agent 6,467,161
13
Exhibit 2.6
of the shares of CSRG Common Stock issued by CSRG in connection with
the 2001 Asset Purchase Agreement, for further disbursement in
accordance with the terms of this Agreement and the Escrow Agreement.
6.5 No Order, Injunction or Adverse Litigation. No court of
competent jurisdiction or other governmental body shall have issued or
entered any order or injunction restraining or prohibiting the
transactions contemplated hereby, which remains in effect at the time
of the Closing. There shall not be pending or threatened any action
or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages
arising out of the transactions contemplated hereby, and which, in the
judgment of CSRG, in its discretion, makes it inadvisable to proceed
with the transactions contemplated hereby.
6.6 Resignation. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have resigned from his
position as a director of CSRG.
6.7 BTSL Warrants. BTSL will deliver to CSRG the BTSL
Warrants, substantially in the form of Exhibit B to this Agreement,
further evidencing CSRG's rights under Section 4.3(b) of this
Agreement.
6.8 Consents. BTSL shall have received consents to the
transactions contemplated hereby and waivers of rights to terminate or
modify any material rights or obligations of BTSL from any Person from
whom such consent or waiver is required under any Contract or
instrument or who, as a result of the transactions contemplated
hereby, would have such rights to terminate or modify such Contracts
or instruments, either by the terms thereof or as a matter of law.
ARTICLE VII
INDEMNIFICATION
7.1 Agreement to Indemnify. Each party hereto (the
"Indemnifying Party") agrees to indemnify and hold the other party
hereto (the "Indemnified Party") harmless from and against the
aggregate of all expenses, losses, costs, deficiencies, liabilities
and damages (including, without limitation, legal counsel and
paralegal fees and expenses) incurred or suffered by the Indemnified
Party (and/or its Affiliates) arising out of or resulting from (i) any
breach of a representation or warranty made by the Indemnifying Party
in or pursuant to any Transaction Document, (ii) any breach of the
covenants, agreements or obligations made by the Indemnifying Party in
or pursuant to any Transaction Document, (iii) any inaccuracy in any
certificate delivered by the Indemnifying Party pursuant to this
Agreement, or (iv) solely with respect to an indemnification of BTSL
by CSRG, any Excluded Liability (collectively, "Indemnifiable
Damages"). Without limiting the generality of the foregoing, with
respect to the measurement of Indemnifiable Damages, the Indemnified
Party shall have the right to be put in the same pre-tax consolidated
financial position as it would have been in had each of the
representations and warranties of the Indemnifying Party hereunder
been true and correct, had the covenants, agreements and obligations
of the Indemnifying Party hereunder been performed in full, had the
certificates been delivered hereunder by the Indemnifying Party been
accurate and had BTSL as an Indemnified Party not been held liable for
14
Exhibit 2.6
any Excluded Liability. Notwithstanding anything to the contrary in
this Agreement, no Indemnifiable Damages shall be recoverable by an
Indemnified Party pursuant to the provisions of this Section 7.1, and
no claim therefor shall be asserted for any purpose hereunder, unless
and until the amount of such Indemnified Party's Indemnifiable Damages
equals or exceeds $10,000 in the aggregate, in which case such
Indemnified Party shall be entitled to seek the recovery of 100% of
its Indemnifiable Damages, including such $10,000.
7.2 Survival of Representations and Warranties. Each of the
representations and warranties made in the Transaction Documents or
pursuant thereto shall survive after the Closing. Notwithstanding any
knowledge of facts determined or determinable by any party by
investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other
parties contained in the Transaction Documents. Each representation,
warranty, covenant and agreement of the parties contained in the
Transaction Documents is independent of each other representation,
warranty, covenant and agreement.
ARTICLE VIII
DEFINITIONS
-----------
8.1 Defined Terms. As used herein, the following terms shall
have the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange
Act, as in effect on the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and treasury regulations promulgated thereunder.
"Contract" means any agreement, contract, lease, note,
mortgage, indenture, loan agreement, franchise agreement,
covenant, employment agreement, license, instrument, purchase and
sales order, commitment, undertaking, understanding or
obligation, whether written or oral, express or implied.
"Excluded Liability" shall mean: (i) any obligations and
liabilities of TecEnergy and any Subsidiary which arise from
events or circumstances occurring or existing prior to the
Closing Date, absolute or contingent, known or unknown, other
than those liabilities or obligations reflected on TecEnergy's
most recent balance sheet prior to the Closing Date delivered to
BTSL; (ii) any liability or obligation of TecEnergy or any
Subsidiary with respect to, or arising out of, any Employee
Benefit Plan, executive deferred compensation plan, or any other
plans or arrangements for the benefit of any employees or
officers of TecEnergy or any Subsidiary; (iii) any liability or
obligation of TecEnergy or any Subsidiary to any Person claiming
to have a right to acquire any shares of capital stock or other
securities convertible into or exchangeable for any shares of
capital stock of TecEnergy or any Subsidiary; (iv) any liability
or obligation relating to the Taxes of CSRG; and (v) any
Litigation Costs.
15
"Governmental Authority" means any nation or government,
any state, regional, local or other political subdivision
thereof, and any entity or official exercising executive,
legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Indebtedness" of any Person means all obligations of such
Person (i) which in accordance with applicable accounting rules
should be classified upon a balance sheet of such Person as
indebtedness, (ii) for borrowed money or purchase money financing
which has been incurred in connection with the acquisition of
property or services, including without limitation, prepayment or
early termination penalties associated with any of the foregoing,
(iii) secured by any lien or other charge upon property or assets
owned by such Person, even though such Person has not assumed or
become liable for the payment of such obligations, (iv) created
or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person,
whether or not the rights and remedies of the lender or lessor
under such agreement in the event of default are limited to
repossession or sale of the property, and (v) for remaining
payments under any capitalized leases (as defined under
applicable accounting rules), non-competition agreements,
severance agreements or any other agreements made outside the
ordinary course of business.
"Knowledge" means, with respect to any Person, (i) the
actual knowledge of such Person, including, if that Person is an
entity, the actual knowledge of the directors, officers,
employees or other legal representatives of such Person, and (ii)
the knowledge which that Person, in its capacity as a prudent
businessperson or shareholder, should have obtained in the
management of its business after making due inquiry, and after
exercising due diligence, with regard thereto.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, but not
limited to, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform
Commercial Code or comparable law or any jurisdiction in
connection with such mortgage, pledge, security interest,
encumbrance, lien or charge).
"Litigation Costs" shall mean any and all expenses, costs,
damages, liabilities, or obligations (including, without
limitation, fees and expenses of counsel) incurred in connection
with any action, suit (including, but not limited to, at the pre-
trial, trial and appellate levels), or other legal or
administrative proceeding or governmental investigation against
CSRG, TecEnergy and/or any Subsidiary arising as a result of
events occurring or facts or circumstances arising or existing on
or prior to the Closing Date (whether or not in the ordinary
course of business).
"Material Adverse Change (or Effect)" means a change (or
effect), in the condition (financial or otherwise), properties,
assets, liabilities, rights, obligations, operations, business or
prospects which change (or effect) individually or in the
aggregate, is materially adverse to such condition, properties,
assets, liabilities, rights, obligations, operations, business or
prospects.
16
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
estate, trust, unincorporated association, joint venture,
Governmental Authority or other person, of whatever nature.
"Tax" or "Taxes" means, with respect to any Person, any
federal, state, local or foreign net income, gross income, gross
receipts, sales, use, ad valorem, value-added, capital, unitary,
franchise, profits, withholding, payroll, employment, excise,
severance, stamp, transfer, occupation, premium, property or
windfall profit tax or other tax of any kind whatsoever, together
with any interest or penalty, imposed by any taxing authority, on
such Person.
"Tax Returns" mean any returns, reports, forms or other
information filed or required to be filed with the Internal
Revenue Service or any other federal, foreign, state local or
provincial taxing authority with respect to any Tax, including
any claim for refund of Taxes and any amendments or supplements
of any of the foregoing.
"Transaction Documents" means, with respect to any party to
this Agreement, this Agreement and any other documents which such
party executes and delivers pursuant to or in connection with
this Agreement and the transactions contemplated hereby.
8.2 Other Definitional Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any
certificates, reports or other documents made or delivered pursuant
hereto or thereto, unless the context otherwise requires. Terms
defined in the singular shall have a comparable meaning when used in
the plural, and vice versa. All matters of an accounting nature in
connection with this Agreement and the transactions contemplated
hereby shall be determined in accordance with applicable accounting
rules applied on a basis consistent with prior periods, where
applicable. As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
ARTICLE IX
MISCELLANEOUS PROVISIONS
------------------------
9.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), or
guaranteed overnight delivery, to the following addresses (or to such
other addresses which such party shall designate in writing to the
other party):
(a) if to BTSL to:
BTSL Technologies Limited
Suite 2127 Lagan House
Custom ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
17
Telephone: (▇▇▇) ▇▇▇ ▇▇▇ ▇▇▇
with a copy to:
Akerman Senterfitt
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to CSRG to:
Consolidated Resources Group, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Notice shall be deemed given on the date delivered (or the date
of refusal of delivery).
9.2 Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the exhibits and schedules attached hereto) and
all other documents delivered pursuant to and in connection with this
Agreement contain the entire understanding of the parties in respect
of its subject matter and supersede all prior agreements and
understandings (oral or written) between or among the parties with
respect to such subject matter. The parties agree that prior drafts
of this Agreement shall not be deemed to provide any evidence as to
the meaning of any provision hereof or the intent of the parties with
respect thereto. The exhibits and schedules constitute a part hereof
as though set forth in full above. This Agreement is not intended to
confer upon any Person, other than the parties hereto, any rights or
remedies hereunder.
9.3 Expenses. Except as otherwise provided herein, the parties
shall pay their own fees and expenses, including their own counsel
fees, incurred in connection with this Agreement or any transaction
contemplated hereby. The fees and expenses incurred by CSRG in
connection with this Agreement and the transactions contemplated
hereby shall be paid from CSRG's own funds and not from the properties
or assets of TecEnergy or any Subsidiary, including, but not limited
to, any legal, accounting, tax consulting or financial advisory fees,
transfer fees, government filing fees and the cost of title insurance
and surveys.
9.4 Amendment; Waiver. This Agreement may not be modified,
amended, supplemented, canceled or discharged, except by written
instrument executed by all parties. No failure to exercise, and no
19
delay in exercising, any right, power or privilege under this
Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude the
exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any
preceding or succeeding breach of the same or any other provision, nor
shall any waiver be implied from any course of dealing between the
parties. No extension of time for performance of any obligations or
other acts hereunder or under any other agreement shall be deemed to
be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this
Agreement are in addition to all other rights and remedies, at law or
equity, that they may have against each other.
9.5 Binding Effect; Assignment. The rights and obligations of
this Agreement shall bind and inure to the benefit of the parties and
their respective successors and assigns. Nothing expressed or implied
herein shall be construed to give any other Person any legal or
equitable rights hereunder. Except as expressly provided herein, the
rights and obligations of this Agreement may not be assigned by any of
the parties hereto without the prior written consent of the other
parties hereto.
9.6 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument. Executed
counterparts of this Agreement and the other Transaction Documents
delivered via facsimile transmission shall be binding on the parties
thereto and have the same force and effect as if they were executed
and delivered in original form.
9.7 Interpretation. When a reference is made in this Agreement
to an article, section, paragraph, clause, schedule or exhibit, such
reference shall be deemed to be to this Agreement unless otherwise
indicated. The headings contained herein and on the schedules are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement or the schedules. Whenever the words
"include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation."
Time shall be of the essence in this Agreement.
9.8 Construction. The parties agree and acknowledge that they
have jointly participated in the negotiation and drafting of this
Agreement. In the event of an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumptions or burdens of proof shall
arise favoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state,
local, or foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context
requires otherwise. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that
there exists another representation, warranty, or covenant relating to
the same subject matter (regardless of the relative levels of
specificity) which the party has not breached shall not detract from
or mitigate the fact that the party is in breach of the first
representation, warranty, or covenant.
9.9 Governing Law; Severability. This Agreement shall be
construed in accordance with and governed for all purposes by the laws
of the State of Florida applicable to contracts executed and to be
19
wholly performed within such State, without regard to any conflicts of
laws principles. If any word, phrase, sentence, clause, section,
subsection or provision of this Agreement as applied to any party or
to any circumstance is adjudged by a court to be invalid or
unenforceable, the same will in no way affect any other circumstance
or the validity or enforceability of any other word, phrase, sentence,
clause, section, subsection or provision of this Agreement. If any
provision of this Agreement, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area
of such provision, and/or to delete specific words or phrases, and in
its reduced form, such provision shall then be enforceable and shall
be enforced.
9.10 Arm's Length Negotiations. Each party herein expressly
represents and warrants to all other parties hereto that (a) before
executing this Agreement, said party has fully informed itself of the
terms, contents, conditions and effects of this Agreement; (b) said
party has relied solely and completely upon its own judgment in
executing this Agreement; (c) said party has had the opportunity to
seek and has obtained the advice of counsel before executing this
Agreement; (d) said party has acted voluntarily and of its own free
will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and
(f) this Agreement is the result of arm's length negotiations
conducted by and among the parties and their respective counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above
written.
BTSL TECHNOLOGIES LIMITED, an Irish
limited liability company
By: ______________________________
Name: ____________________________
Title: ___________________________
CONSOLIDATED RESOURCES GROUP, INC., a
Florida corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
20
LIST OF SCHEDULES AND EXHIBITS
------------------------------
Schedule 3.7 Subsidiaries
Schedule 3.10 Litigation
Exhibit A Form of Escrow Agreement
Exhibit B Form of BTSL Warrants
Exhibit C Form of Release
21
SCHEDULE 3.7
------------
Subsidiaries
Gasification Tech Systems Limited (GTS)
---------------------------------------
Authorized Share Capital: 100,000,000 Euro 0.01(one cent) ordinary shares
authorized
Issued: 1,000 ordinary shares issued to TecEnergy Enterprises Limited
Gasification Tech (Manufacturing) Limited
-----------------------------------------
Authorized Share Capital: 100,000,000 Euro 0.01(one cent) ordinary shares
authorized
Issued: 1,000 ordinary shares issued to TecEnergy Enterprises Limited
Oxygen Tech Systems Limited (OTS)
---------------------------------
Authorized Share Capital: 100,000,000 Euro 0.01(one cent) ordinary shares
authorized
Issued: 1,000 ordinary shares issued to TecEnergy Enterprises Limited
Oxygen Tech (Manufacturing) Limited (OTM)
-----------------------------------------
Authorized Share Capital: 100,000,000 Euro 0.01(one cent) ordinary shares
authorized
Issued: 1,000 ordinary shares issued to TecEnergy Enterprises Limited.
ComPos International Limited
----------------------------
Authorized Share Capital: 2 [British Pound Symbol] 1 (one British Pound)
ordinary shares authorized
Issued: 2 ordinary shares issued to TecEnergy Enterprises Limited.
22
SCHEDULE 3.10
-------------
Litigation
Case ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, styled Alpine
& Pecos Petroleum, Inc. ▇. ▇▇▇▇▇▇ Energy of NV, Inc., et al.
23