STOCK EXCHANGE AGREEMENT
Between
LASER CORPORATION
and
THE SHAREHOLDERS OF BI ACQUISITIONS, INC.
dba "BROADCAST"
Dated October 1, 2003
TABLE OF CONTENTS
Articles Page
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ARTICLE I REPRESENTATIONS, COVENANTS, AND
WARRANTIES OF BROADCAST
1.01 Organization
1.02 Capitalization
1.03 Subsidiaries and Predecessor Corporations
1.04 Financial Statements
1.05 Information
1.06 Options and Warrants
1.07 Absence of Certain Changes or Events
1.08 Title and Related Matters
1.09 Litigation and Proceedings
1.10 Contracts
1.11 Material Contract Defaults
1.12 No Conflict With Other Instruments
1.13 Governmental Authorizations
1.14 Compliance With Laws and Regulations
1.15 Insurance
1.16 Approval of Agreement
1.17 Material Transactions or Affiliations
1.18 Labor Relations
1.19 BROADCAST Schedules
ARTICLE II REPRESENTATIONS, COVENANTS AND WARRANTIES
OF BROADCAST SHAREHOLDERS
2.01 Ownership of BROADCAST Shares
2.02 Knowledge of Representations
ARTICLE III REPRESENTATIONS, COVENANTS, AND
WARRANTIES OF LASER CORPORATION
3.01 Organization
3.02 Capitalization
3.03 Subsidiaries
3.04 Financial Statements
3.05 Information
2
Articles Page
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3.06 Options and Warrants
3.07 Absence of Certain Changes or Events
3.08 Title and Related Matters
3.09 Litigation and Proceedings
3.10 Contracts
3.11 No Conflict With Other Instruments
3.12 Governmental Authorizations
3.13 Compliance With Laws and Regulations
3.14 Insurance
3.15 Approval of Agreement
3.16 Material Transactions or Affiliations
3.17 Employment Matters
3.18 LASER Schedules
ARTICLE IV PLAN OF EXCHANGE
4.01 The Exchange
4.02 Appointment of New Directors
4.03 Closing
4.04 Closing Events
4.05 Termination
ARTICLE V SPECIAL COVENANTS
5.01 Access to Properties and Records
5.02 Delivery of Books and Records
5.03 Special Covenants and Representations
Regarding the Exchanged Stock
5.04 Third Party Consents and Certificates
5.05 Actions Prior to Closing
5.06 Sales Under Rules 144 or 145, If Applicable
5.07 Indemnification
5.08 Cancellation of Shares Issued
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF LASER
6.01 Accuracy of Representations
6.02 Officer's Certificates
6.03 No Material Adverse Change
6.04 Good Standing
6.05 Officer and Director Questionnaires
6.06 Other Items
3
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ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF
BROADCAST AND THE BROADCAST SHAREHOLDERS
7.01 Accuracy of Representation
7.02 Director Approval
7.03 Officer's Certificate
7.04 No Material Adverse Change
7.05 Good Standing
7.06 Other Items
ARTICLE VIII MISCELLANEOUS
8.01 Brokers
8.02 Governing Law
8.03 Notices
8.04 Attorneys' Fees
8.05 Confidentiality
8.06 Schedules; Knowledge
8.07 Third Party Beneficiaries
8.08 Entire Agreement
8.09 Survival; Termination
8.10 Counterparts
8.11 Amendment or Waiver
EXHIBITS
Exhibit "A" Proprietary Information
Exhibit "B" Letter of Representation
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (hereinafter referred to as this
"Agreement"), is entered into as of this 1st day of October, 2003 by and among
LASER CORPORATION., a Utah corporation (hereinafter referred to as "LASER");
BI ACQUISITIONS, INC., a Utah corporation (hereinafter referred to as
"BROADCAST"), and all of the shareholders of BROADCAST (hereinafter referred
to as the "BROADCAST Shareholders"), upon the following premises:
Premises
--------
This Agreement provides for the acquisition by LASER of all of the
issued and outstanding shares of the BROADCAST Shareholders solely in exchange
for voting shares of LASER, on the terms and conditions hereinafter provided,
all for the purpose of effecting a so-called "tax-free" reorganization
pursuant to Sections 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended, and the Parties agree that if modification of the terms of this
Agreement in a non-material manner to attain such qualification is necessary,
they will negotiate in good faith to make such required modifications.
Pursuant to the terms of the agreement, as hereinafter set forth, among
other things, all of the outstanding and reserved securities of BROADCAST will
be exchanged for shares of LASER common stock, in reliance on applicable
exemptions from the registration requirements of the Securities Act and
applicable Blue Sky laws, as hereinafter described.
Agreement
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NOW THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived therefrom, it is hereby agreed as
follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF BROADCAST
As an inducement to, and to obtain the reliance of LASER, BROADCAST and
the BROADCAST Shareholders specifically named hereafter represent and warrant
as follows:
Section 1.01 Organization. BROADCAST is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Utah.
BROADCAST has the corporate power and is duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances,
and orders of public authorities to own all of its properties and assets and
to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign corporation in
the states in which the character and location of the assets owned by it or
the nature of the business transacted by it requires qualification. Included
in the BROADCAST Schedules (as hereinafter defined) are complete and correct
copies of the articles of incorporation, as amended, and bylaws of BROADCAST
as in effect on the date hereof.
Section 1.02 Capitalization. The authorized capitalization of
BROADCAST consists of 25,000,000 shares of common stock, $.001 par value per
share, of which 10,176,775 shares are currently issued and outstanding. All
issued and outstanding shares are legally issued, fully paid, and
non-assessable and not issued in violation of the pre-emptive or other rights
of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. BROADCAST has
no subsidiaries.
Section 1.04 Financial Statements.
(a) Included in the BROADCAST Schedules are the audited balance
sheets of BROADCAST at December 31, 2002 and 2001, and the related audited
statements of operations, stockholders' equity, and changes in financial
position for the two fiscal years ended December 31, 2002 and 2001, together
with the notes to such statements and the opinion of ▇▇▇▇▇▇ and Company,
independent certified public accountants, with respect thereto; together with
an unaudited balance sheet dated June 30, 2003 and an unaudited statement of
operations for the six months ended June 30, 2003.
(b) All such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved. The BROADCAST balance sheets present fairly as of their
respective dates the financial condition of BROADCAST. BROADCAST did not have
as of the date of any such BROADCAST balance sheet, except as and to the
extent reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected in a balance sheet or the
notes thereto prepared in accordance with generally accepted accounting
principles, and all assets reflected therein are properly reported and present
fairly the value of the assets of BROADCAST, in accordance with generally
accepted accounting principles. The statements of operations, stockholders'
equity, and changes in financial position reflect fairly the information
required to be set forth therein by generally accepted accounting principles.
(c) BROADCAST has filed all income tax returns required to be filed
by it from inception to the date hereof, or has properly filed extensions to
file such returns.
(d) Except as set forth on Schedule 1.04(d) BROADCAST does not owe
any unpaid federal, state, county, local, or other taxes (including any
deficiencies, interest, or penalties) through June 30, 2003 for which
BROADCAST may be liable in its own right or as a transferee of the assets of,
or as a successor to, any other corporation or entity.
(e) The books and records, financial and otherwise, of BROADCAST
are in all material respects complete and correct and have been maintained in
accordance with good business practices.
(f) BROADCAST has good and marketable title to its assets and,
except as set forth in the BROADCAST Schedules or the financial statements of
BROADCAST or the notes thereto, has no material contingent liabilities, direct
or indirect, matured or unmatured.
Section 1.05 Information. The information concerning BROADCAST set
forth in this Agreement and in the BROADCAST Schedules is complete and
accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact required to make
the statements made, in light of the circumstances under which they were made,
not misleading.
Section 1.06 Options or Warrants. Except as set forth of Schedule 1.06,
there are no existing options, warrants, calls, or commitments of any
character relating to the authorized and unissued BROADCAST common stock,
except options, warrants, calls or commitments, if any, to which BROADCAST is
not a party and by which it is not bound and which do not involve any of the
authorized and unissued shares of BROADCAST common stock.
Section 1.07 Absence of Certain Changes or Events. Except as set forth
in this Agreement or the BROADCAST Schedules, since June 30, 2003:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of BROADCAST; or (ii)
any damage, destruction, or loss to BROADCAST (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of BROADCAST;
(b) BROADCAST has not (i) amended its certificate of incorporation
or bylaws; (ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any of
its capital stock; (iii) waived any rights of value which in the aggregate are
extraordinary or material considering the business of BROADCAST; (iv) made any
material change in its method of management, operation, or accounting; (v)
entered into any other material transaction; (vi) made any accrual or
arrangement for payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or employee;
(vii) increased the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its employees whose monthly
compensation exceeds $1,000; or (viii) made any increase in any profit
sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit plan, payment, or arrangement made to, for, or with its
officers, directors, or employees;
(c) BROADCAST has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability (absolute
or contingent) except liabilities incurred in the ordinary course of business;
(ii) paid any material obligation or liability (absolute or contingent) other
than current liabilities of BROADCAST reflected in or shown on the most
recent BROADCAST balance sheet, and current liabilities incurred since that
date in the ordinary course of business; (iii) sold or transferred, or agreed
to sell or transfer, any of its assets, properties, or rights (except assets,
properties, or rights not used or useful in its business which, in the
aggregate have a value of less than $1,000), or cancelled, or agreed to
cancel, any debts or claims (except debts or claims which in the aggregate are
of a value of less than $1,000); (iv) made or permitted any amendment or
termination of any contract, agreement, or license to which it is a party if
such amendment or termination is material, considering the business of
BROADCAST; or (v) issued, delivered, or agreed to issue or deliver any stock,
bonds or other corporate securities including debentures (whether authorized
and unissued or held as treasury stock); and
(d) Except as set forth on Schedule 1.07(d) to the best knowledge
of management, BROADCAST has not become subject to any law or regulation which
materially and adversely affects, or in the future may adversely affect, the
business, operations, properties, assets, or condition of BROADCAST.
Section 1.08 Title and Related Matters. Except as set forth on
schedule1.08, BROADCAST has good and marketable title to all of its
properties, inventory, interests in properties, and assets, real and personal,
which are reflected in the most recent BROADCAST balance sheet or acquired
after that date (except properties, interests in properties, and assets sold
or otherwise disposed of since such date in the ordinary course of business),
free and clear of all liens, pledges, charges, or encumbrances except (a)
statutory liens or claims not yet delinquent; (b) such imperfections of title
and easements as do not and will not materially detract from or interfere with
the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in the BROADCAST Schedules. Except as set
forth in the BROADCAST Schedules, BROADCAST owns, free and clear of any liens,
claims, encumbrances, royalty interests, or other restrictions or limitations
of any nature whatsoever, any and all products it is currently manufacturing,
including the underlying technology and data, and all procedures, techniques,
marketing plans, business plans, methods of management, or other information
utilized in connection with BROADCAST'S business. Except as set forth in the
BROADCAST Schedules, no third party has any right to, and BROADCAST has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names, or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling, or finding, would have a materially adverse affect on the business,
operations, financial condition, income, or business prospects of BROADCAST or
any material portion of its properties, assets, or rights.
Section 1.09 Litigation and Proceedings. Except as set forth in the
BROADCAST Schedules, there are no actions, suits, proceedings, or
investigations pending or, to the knowledge of BROADCAST after reasonable
investigation, threatened by or against BROADCAST or affecting BROADCAST or
its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of
any kind. BROADCAST does not have any knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or instrumentality
or of any circumstances which, after reasonable investigation, would result in
the discovery of such a default.
Section 1.10 Contracts.
(a) Except as included or described in the BROADCAST Schedules,
there are no material contracts, agreements, franchises, license agreements,
or other commitments to which BROADCAST is a party or by which it or any of
its assets, products, technology, or properties are bound;
(b) All contracts, agreements, franchises, license agreements, and
other commitments to which BROADCAST is a party or by which its properties are
bound and which are material to the operations of BROADCAST taken as a whole
are valid and enforceable by BROADCAST in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(c) BROADCAST is not a party to or bound by, and the properties of
BROADCAST are not subject to, any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any judgment,
order, writ, injunction, decree, or award which materially and adversely
affects, or in the future may (as far as BROADCAST can now foresee) materially
and adversely affect, the business, operations, properties, assets, or
condition of BROADCAST; and,
(d) Except as included or described in the BROADCAST Schedules or
reflected in the most recent BROADCAST balance sheet, BROADCAST is not a party
to any oral or written (i) contract for the employment of any officer or
employee which is not terminable on 30 days or less notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance pay, pension
benefit or retirement plan, agreement, or arrangement covered by Title IV of
the Employee Retirement Income Security Act, as amended; (iii) agreement,
contract, or indenture relating to the borrowing of money; (iv) guaranty of
any obligation, other than one on which BROADCAST is a primary obligor, for
the borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations, which, in the aggregate do not
exceed more than one year or providing for payments in excess of $1,000 in the
aggregate; (vi) collective bargaining agreement; (vii) agreement with any
present or former officer or director of BROADCAST; or (viii) contract,
agreement, or other commitment involving payments by it of more than $1,000 in
the aggregate.
Section 1.11 Material Contract Defaults. BROADCAST is not in default
in any material respect under the terms of any outstanding contract,
agreement, lease, or other commitment which is material to the business,
operations, properties, assets, or condition of BROADCAST and there is no
event of default in any material respect under any such contract, agreement,
lease, or other commitment in respect of which BROADCAST has not taken
adequate steps to prevent such a default from occurring.
Section 1.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed
of trust, or other material contract, agreement, or instrument to which
BROADCAST is a party or to which any of its properties or operations are
subject.
Section 1.13 Governmental Authorizations. BROADCAST currently has an
effective business license. BROADCAST has all other licenses, franchises,
permits, and other governmental authorizations that are legally required to
enable it to conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval,
consent, or order of, or registration, declaration, or filing with, any court
or other governmental body is required in connection with the execution and
delivery by BROADCAST of this Agreement and the consummation by BROADCAST of
the transactions contemplated hereby.
Section 1.14 Compliance With Laws and Regulations. Except as set forth
in the BROADCAST Schedules, BROADCAST has complied with all applicable
statutes and regulations of any federal, state, or other governmental entity
or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets,
or condition of BROADCAST or except to the extent that noncompliance would not
result in the incurrence of any material liability for BROADCAST.
Section 1.15 Insurance. Schedule 1.15 sets forth all insurance
policies currently in force insuring variance activities of BROADCAST.
Section 1.16 Authority Relative to this Agreement. BROADCAST has full
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery, and performance of this Agreement by BROADCAST and
the consummation by BROADCAST of the transactions contemplated hereby have
been duly and validly approved by the Board of Directors of BROADCAST, subject
to obtaining the BROADCAST Shareholders' approval. The Board of Directors of
BROADCAST has adopted a resolution recommending approval of this Agreement
and directed that this Agreement be submitted to the shareholders of BROADCAST
for their consideration, and, subject to the approval of the BROADCAST
Shareholders, no other corporate proceedings on the part of BROADCAST or its
shareholders are necessary to authorize the execution, delivery and
performance of this Agreement by BROADCAST and the consummation by BROADCAST
of the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by BROADCAST and, subject to obtaining the
BROADCAST Shareholders' approval, constitutes a legal, valid, and binding
obligation of BROADCAST enforceable against BROADCAST in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by the rules governing the availability of
specific performance, injunctive relief or other equitable remedies and
general equitable principles regardless of whether considered in a proceeding
in equity or at law.
Section 1.17 Material Transactions or Affiliations. Set forth in the
BROADCAST Schedules is a description of every material contract, agreement, or
arrangement between BROADCAST and any predecessor and any person who was at
the time of such contract, agreement, or arrangement an officer, director, or
person owning of record, or known by BROADCAST to own beneficially, five
percent (5%) or more of the issued and outstanding common stock of BROADCAST
and which is to be performed in whole or in part after the date hereof or
which was entered into not more than three years prior to the date hereof. In
all of such transactions, the amount paid or received, whether in cash, in
services, or in kind, is, had been during the full term thereof, and is
required to be during the unexpired portion of the term thereof, no less
favorable to BROADCAST than terms available from otherwise unrelated parties
in arm's length transactions. Except as disclosed in the BROADCAST Schedules
or otherwise disclosed herein, no officer, director, or five percent (5%)
shareholder of BROADCAST has, or has had since inception of BROADCAST, any
interest, direct or indirect, in any material transaction with BROADCAST.
There are no commitments by BROADCAST, whether written or oral, to lend any
funds to, borrow any money from, or enter into any other material transaction
with, any such affiliated person.
Section 1.18 Labor Relations. BROADCAST has not had a work stoppage
resulting from labor problems. To the knowledge of BROADCAST, no union or
other collective bargaining organization is organizing or attempting to
organize any employee of BROADCAST.
Section 1.19 BROADCAST Schedules. BROADCAST has delivered to LASER the
following schedules, which are collectively referred to as the "BROADCAST
Schedules" and which consist of separate schedules dated as of the date of
execution of this Agreement and instruments and data as of such date, all
certified by the chief executive officer of BROADCAST as complete, true, and
correct:
(a) a schedule containing complete and correct copies of the
certificate of incorporation, as amended, and bylaws of BROADCAST in effect as
of the date of this Agreement;
(b) a schedule containing the financial statements of BROADCAST
identified in paragraph 1.04(c);
(c) a schedule containing all Federal and State income tax returns
filed as of the date hereof.
(d) a schedule containing a list indicating the name and address of
each shareholder of BROADCAST together with the number of shares owned by him
or her;
(e) a schedule containing a description of all real property owned
by BROADCAST, together with a description of every mortgage, deed of trust,
pledge, lien, agreement, encumbrance, claim, or equity interest of any nature
whatsoever in such real property;
(f) a schedule containing true and correct copies of all material
contracts, agreements, or other instruments to which BROADCAST is a party or
by which it or its properties are bound, together with a description of all
contracts, leases, agreements, and other instruments, whether or not deemed
material, including oral agreements, to which BROADCAST is party or by which
it or its properties are bound, specifically including all contracts,
agreements, or arrangements referred to in section 1.17;
(g) a schedule containing a list of all licenses, permits, and
other governmental authorizations (or requests or applications therefor)
pursuant to which BROADCAST carries on or proposes to carry on its business
(except those which, in the aggregate, are immaterial to the present or
proposed business of BROADCAST);
(h) a schedule listing the accounts receivable and notes and other
obligations receivable of BROADCAST as of June 30, 2003, or that arose
thereafter other than in the ordinary course of business of BROADCAST,
indicating the debtor and amount, and classifying the accounts to show in
reasonable detail the length of time, if any, overdue, and stating the nature
and amount of any refunds, set offs, reimbursements, discounts, or other
adjustments which are in the aggregate material and due to or claimed by such
creditor;
(i) a schedule listing the accounts payable and notes and other
obligations payable by BROADCAST as of June 30, 2003 or that arose thereafter
other than in the ordinary course of the business of BROADCAST, indicating the
creditor and amount, classifying the accounts to show in reasonable detail the
length of time, if any, overdue, and stating the nature and amount of any
refunds, setoffs, reimbursements, discounts, or other adjustments, which in
the aggregate are material and due or payable to BROADCAST respecting such
obligations;
(j) a schedule setting forth a description of any material adverse
change in the business, operations, property, inventory, assets, or condition
of BROADCAST since June 30, 2003, required to be provided pursuant to section
1.07 hereof;
(k) a schedule containing a copy of the board of directors' and
shareholders' minutes of BROADCAST since inception; and
(l) a schedule setting forth any other information, together with
any required copies of documents, required to be disclosed in the BROADCAST
Schedules by sections 1.01 through 1.18.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF BROADCAST SHAREHOLDERS
As an inducement to, and to obtain reliance of LASER, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, and Broadcast International, Ltd. for
the purposes of this Article referred to as "BROADCAST Shareholders",
represent and warrant as follows:
Section 2.01 Ownership of BROADCAST Shares.
(a) Each BROADCAST Shareholder hereby represents and warrants with
respect to itself that it is the legal and beneficial owner of the number of
common shares set forth opposite its name on Schedule 4.01, free and clear of
any claims, charges, equities, liens, security interests, and encumbrances
whatsoever, and each such BROADCAST Shareholder has full right, power, and
authority to transfer, assign, convey, and deliver its BROADCAST shares; and
delivery of such shares at the closing will convey to LASER good and
marketable title to such shares free and clear of any claims, charges,
equities, liens, security interests, and encumbrances whatsoever, except as
set forth herein.
(b) Each BROADCAST Shareholder further warrants and certifies by
affixing his signature to this Agreement, that he is an "Accredited Investor"
within the meaning of that term as defined in Regulation D of the Securities
Act of 1933.
(c) Each of BROADCAST's Shareholders has been advised that:
(1) The securities to be issued by LASER in exchange for
BROADCAST's Securities have not been registered under the Securities
Act, the Exchange Act or any comparable state securities laws, but
rather, are being issued in reliance on the exemption from
registration under the Securities Act provided by Section 4(2)
thereof.
(2) All certificates for the shares of LASER's common stock
will bear legends restricting any transactions therein, directly or
indirectly, unless they are first registered under applicable
federal and state securities laws or the proposed transaction is
exempt from such registration requirements, and if such facts are
demonstrated to the satisfaction of LASER and its legal counsel,
based on such third party legal opinions, affidavits, and
transfer agency procedures as LASER will reasonably require or have
in place generally LASER will not unreasonably withhold its consent
to such registration;
(3) LASER's transfer agent has been instructed to decline
transfers of certificates for the shares of LASER's common stock to
be issued pursuant to this Agreement unless the foregoing
requirements have been met and have been confirmed as having been
met by a duly authorized officer of LASER.
(d) Each of the BROADCAST Shareholders has independently determined
through his, her or its own legal counsel, that all requirements of
BROADCAST's state of domicile for the issuance of the shares of LASER's common
stock called for by this Agreement have been met, or will have been met, prior
to Closing.
Section 2.02 Knowledge of Representations. To their best knowledge and
belief, the representations of BROADCAST in Article I, above, are true,
accurate and complete.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF LASER
As an inducement to, and to obtain the reliance of BROADCAST and the
BROADCAST Shareholders, LASER represents and warrants as follows:
Section 3.01 Organization. LASER is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Utah,
and has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, and there is
no jurisdiction in which it is not qualified in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Schedules (as hereinafter defined)
are complete and correct copies of the articles of incorporation and LASER
bylaws of LASER as in effect on the date hereof. The execution and delivery
of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of LASER's articles of
incorporation or bylaws. LASER has taken all action required by law, its
articles of incorporation, its bylaws, or otherwise to authorize the execution
and delivery of this Agreement, and LASER has full power, authority, and legal
right and has taken all action required by law, its articles of incorporation,
bylaws, or otherwise to consummate the transactions herein contemplated.
Section 3.02 Capitalization. LASER authorized capitalization consists
of 40,000,000 shares of common stock, par value $.05, of which 3,495,973
shares are issued and outstanding and 10,000,000 shares of preferred stock, no
par value, of which no shares are outstanding. All issued and outstanding
shares are legally issued, fully paid, and non-assessable and not issued in
violation of the pre-emptive or other rights of any person.
Section 3.03 Subsidiaries. LASER had two wholly owned subsidiaries,
American Laser Corporation and American Laser Medical, Inc., both of which
have been dissolved pursuant to the requirements of the Utah Revised Business
Corporation Act and are in process of winding down.
Section 3.04 SEC Reports and Financial Statements.
(a) LASER has delivered to BROADCAST prior to the Closing a true,
correct, and complete copy of each form, report, schedule, registration
statement, definitive proxy statement and other document (together with all
amendments thereof and supplements thereto) filed by LASER with the Securities
and Exchange Commission ("SEC") since January 1, 2000 (the "LASER Reports"),
which are all the documents (other than preliminary material) that LASER was
required to file with the SEC since such date. As of their respective dates,
the LASER Reports (i) complied as to form in all material respects with the
requirements of the Securities Act of 1933, or the Exchange Act of 1934, as
the case may be, and (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be state therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Included in the LASER Schedules are the audited balance sheets
of LASER as of December 31, 2002, and 2001, and the related audited statements
of operations, stockholders' equity, and changes in financial position for the
two fiscal years ended December 31, 2002, and 2001, together with the notes to
such statements and the opinion of ▇▇▇▇▇▇ and Co., P.C., independent certified
public accountants, with respect thereto; the unaudited balance sheet of LASER
as of June 30, 2003, and a related unaudited statement of operations, for the
six-month period ended June 30, 2003.
(c) All LASER financial statements complied as to form in all
material respects with the published rules and regulations of the SEC with
respect thereto and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved.
The LASER balance sheets present fairly as of their respective dates the
financial condition of LASER. LASER did not have as of the date of any such
LASER balance sheet, except as and to the extent reflected or reserved against
therein, any liabilities or obligations (absolute or contingent) which should
be reflected in a balance sheet or the notes thereto prepared in accordance
with generally accepted accounting principles, and all assets reflected
therein are properly reported and present fairly the value of the assets of
LASER, in accordance with generally accepted accounting principles. The
statements of operations, stockholders' equity, and changes in financial
position reflect fairly the information required to be set forth therein by
generally accepted accounting principles.
(d) LASER has no liabilities with respect to the payment of any
federal, state, county, local, or other taxes (including any deficiencies,
interest, or penalties), except for taxes accrued but not yet due and payable.
(e) LASER has filed all state, federal, or local income tax returns
required to be filed by it from inception to the date hereof. Included in the
LASER Schedules are true and correct copies of the federal income tax returns
of LASER filed for the three years ended December 31, 2000, 2001, 2002. None
of such federal income tax returns have been examined by the Internal Revenue
Service. Each of such income tax returns reflects the taxes due for the
period covered thereby, except for amounts which, in the aggregate, are
immaterial.
(f) The books and records, financial and otherwise, of LASER are in
all material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
(g) LASER has good and marketable title to its assets and, except
as set forth in the LASER Schedules or the Financial Statements of LASER or
the notes thereto, has no material contingent liabilities, direct or indirect,
matured or unmatured.
Section 3.05 Information. The information concerning LASER set forth
in this Agreement and the LASER Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
Section 3.06 Options or Warrants. Except as set forth on Schedule 3.06
of the LASER Schedules, there are no existing options, warrants, calls, or
commitments of any character relating to authorized and unissued stock of
LASER, except options, warrants, calls, or commitments, if any, to which LASER
is not a party and by which it is not bound.
Section 3.07 Absence of Certain Changes or Events. Except as described
herein or in the LASER Schedules and the discontinuance of the operations of
American Laser Corporation and American Laser Medical, Inc., since the date of
the most recent LASER balance sheet:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of LASER (whether or
not covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or condition of LASER;
(b) LASER has not (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any of
its capital stock; (iii) waived any rights of value which in the aggregate are
extraordinary or material considering the business of LASER; (iv) made any
material change in its method of management, operation, or accounting; (v)
entered into any other material transactions; (vi) made any accrual or
arrangement for or payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or employee;
(vii) increased the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its employees whose monthly
compensation exceeds $1,000; or (viii) made any increase in any profit
sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit plan, payment, or arrangement, made to, for, or with
its officers, directors, or employees;
(c) LASER has not (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other corporate securities
calling for the issuance thereof; (ii) borrowed or agreed to borrow any funds
or incurred, or become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in the ordinary course of
business; (iii) paid or agreed to pay any material obligation or liability
(absolute or contingent) other than current liabilities reflected in or shown
on the most recent LASER balance sheet and current liabilities incurred since
that date in the ordinary course of business and professional and other fees
and expenses incurred in connection with the preparation of this Agreement and
the consummation of the transactions contemplated hereby; (iv) sold or
transferred, or agreed to sell or transfer, any of its assets, property, or
rights (except assets, property, or rights not used or useful in its business
which, in the aggregate have a value of less than $1,000), or cancelled, or
agreed to cancel, any debts or claims (except debts or claims which in the
aggregate are of a value of less than $1,000); (v) made or permitted any
amendment or termination of any contract, agreement, or license to which it is
a party if such amendment or termination is material, considering the business
of LASER; or (vi) issued, delivered, or agreed to issue or deliver any stock,
bonds, or other corporate securities including debentures (whether authorized
and unissued or held as treasury stock), except in connection with this
Agreement; and
(d) to the best knowledge of LASER, it has not become subject to
any law or regulation which materially and adversely affects, or in the future
may adversely affect, the business, operations, properties, assets, or
condition of LASER.
Section 3.08 Title and Related Matters. LASER has good and marketable
title to all of its properties, interest in properties, and assets, real and
personal, which are reflected in the LASER balance sheet or acquired after
that date (except properties, interest in properties, and assets sold or
otherwise disposed of since such date in the ordinary course of business),
free and clear of all liens, pledges, charges, or encumbrances except (a)
statutory liens or claims not yet delinquent; (b) such imperfections of title
and easements as do not and will not materially detract from or interfere with
the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in the LASER Schedules.
Section 3.09 Litigation and Proceedings. Except as set forth in the
LASER Schedules, there are no actions, suits, or proceedings pending or, to
the knowledge of LASER, threatened by or against or affecting LASER, at law or
in equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. LASER does not
have any knowledge of any default on its part with respect to any judgment,
order, writs, injunction, decree, award, rule, or regulation of any court,
arbitrator, or governmental agency or instrumentality.
Section 3.10 Contracts. Except for contracts entered into in the
ordinary course of business, LASER and its subsidiary are not parties to any
material contract, agreement, or other commitment.
Section 3.11 No Conflict With Other Instruments. The consummation of
the transactions contemplated by this Agreement will not result in the breach
of any term or provision of, or constitute a default under, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
LASER is a party or to which it or any of its assets or operations are
subject.
Section 3.12 Governmental Authorizations. LASER has all licenses,
franchises, permits, and other government authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal
and state securities or corporation laws, as hereinafter provided, no
authorization, approval, consent, or order of, or registration, declaration,
or filing with, any court or other governmental body is required in connection
with the execution and delivery by LASER of this Agreement and the
consummation by LASER of the transactions contemplated hereby.
Section 3.13 Compliance With Laws and Regulations. To the best of its
knowledge, LASER has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets, or conditions of LASER or
except to the extent that noncompliance would not result in the incurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities in
connection with LASER's filing of quarterly reports with the SEC and Nasdaq.
Section 3.14 Insurance. Schedule 3.14 sets for all insurance carried
by LASER.
Section 3.15 Authority Relative to This Agreement. LASER has full
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery, and performance of this Agreement by LASER and the
consummation by LASER of the transactions contemplated hereby have been duly
and validly approved by the Board of Directors of LASER. No other corporate
proceedings on the part of LASER or its shareholders are necessary to
authorize the execution, delivery and performance of this Agreement by LASER
and the consummation by LASER of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by LASER and
constitutes a legal, valid, and binding obligation of LASER enforceable
against LASER in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by the rules
governing the availability of specific performance, injunctive relief or other
equitable remedies and general equitable principles regardless of whether
considered in a proceeding in equity or at law.
Section 3.16 Absence of Undisclosed Liabilities. Except for matters
reflected or reserved against in the balance sheet for the period ended June
30, 2003 included in the LASER schedules or otherwise disclosed herein,
neither LASER nor any of the LASER subsidiaries had at such date, or has
incurred since that date, any liabilities or obligations (whether absolute,
accrued, contingent, fixed or otherwise, or whether due or to be come due) of
any nature that would be required by generally accepted accounting principles
to be reflected on a consolidated balance sheet of LASER (including the notes
thereto), except liabilities or obligations which were incurred in the
ordinary course of business consistent with past practice and which have not
had, and could not be reasonably expected to have, individually or in the
aggregate, a material adverse effect on LASER .
Section 3.17 Material Transactions of Affiliates. Except as disclosed
herein and in the LASER Schedules, there exists no material contract,
agreement, or arrangement between LASER and any person who was at the time of
such contract, agreement, or arrangement an officer, director, or person
owning of record or known by LASER to own beneficially, 5% or more of the
issued and outstanding common stock of LASER and which is to be performed in
whole or in part after the date hereof or was entered into not more than three
years prior to the date hereof. Neither any officer, director, nor 5%
shareholder of LASER has, or has had during the last preceding full fiscal
year, any known interest in any material transaction with LASER which was
material to the business of LASER. LASER has no commitment, whether written
or oral, to lend any funds to, borrow any money from, or enter into any other
material transaction with any such affiliated person.
Section 3.18 Employment Matters. At the time of Closing, LASER will
have no employees other than its executive officers.
Section 3.19 LASER Schedules. LASER has delivered to BROADCAST the
following schedules, which are collectively referred to as the "LASER
Schedules," which are dated the date of this Agreement, all certified by an
officer to be complete, true, and accurate:
(a) a schedule containing complete and accurate copies of the
articles of incorporation and bylaws of LASER as in effect as of the date of
this Agreement;
(b) a schedule containing all reports of LASER filed with the U.S.
Securities and Exchange Commission since January 1, 2000;
(c) a schedule containing a copy of the federal income tax returns
of LASER identified in paragraph 3.04(d);
(d) a schedule containing LASER audited financial statements;
(e) a schedule setting forth all material contracts.
(f) a schedule setting forth any options, warrants or commitments.
(g) a schedule setting forth the description of any material
adverse change in the business, operations, property, assets, or condition of
LASER since June 30, 2003, required to be provided pursuant to section 3.07
hereof; and
(h) a schedule of all LASER accounts receivable and payable.
(i) a schedule and copies of all LASER board minutes and/or
actions since January 1, 2000.
(j) a schedule setting forth any other information, together with
any required copies of documents, required to be disclosed in the LASER
Schedules by sections 3.01 through 3.18.
Section 3.20 Election of Directors. Effective as of the Closing
Date, Laser will take all necessary and appropriate actions to cause (i) the
current members of the Board of Directors of Laser to resign effective upon
the Closing and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇ ▇▇▇▇▇▇ to be
elected or appointed as directors of Laser to fill the positions resulting
from the resignations of the current directors.
ARTICLE IV
CONSIDERATION AND PLAN OF EXCHANGE
Section 4.01 The Initial Exchange. On the terms and subject to the
conditions set forth in this Agreement, on the Closing Date (as defined in
Section 4.06), each of the BROADCAST Shareholders hereby agrees to assign,
transfer, and deliver to LASER, free and clear of all liens, pledges,
encumbrances, charges, restrictions, or known claims of any kind, nature, or
description, except as provided for herein the number of shares of common
stock of BROADCAST set forth on schedule 4.01, after his name, in the
aggregate constituting all of the issued and outstanding shares of common
stock of BROADCAST, and LASER agrees to acquire such shares on such date by
issuing and delivering in exchange therefore solely shares of LASER restricted
common stock, par value $0.05. LASER shall issue all of the then authorized,
but unissued shares of LASER common stock at the Closing ("Initial Issuance
Shares") to the BROADCAST Shareholders as their respective percentage
ownership interests of BROADCAST may appear prior to the Closing and in the
number of shares as set forth on Schedule 4.01. In addition the BROADCAST
Shareholders shall be entitled to additional shares of LASER common stock as
described in Section 4.03 hereof.
At the Closing, each of the BROADCAST Shareholders shall, on surrender
of his certificate or certificates representing such BROADCAST shares to the
registrar and transfer agent, shall receive a certificate or certificates
evidencing shares of the exchanged LASER Stock as provided herein. Upon the
consummation of the transaction contemplated herein, shares of capital stock
of LASER shall be held by BROADCAST Shareholders. Following the Share
acquisition and exchange, the effect of the Exchange will be that BROADCAST
will have become a wholly owned subsidiary of LASER and that BROADCAST
Shareholders will have become Shareholders of LASER at the Closing, with no
further rights, title or interest in BROADCAST stock, other than indirectly as
shareholders of LASER and as may be set forth hereafter.
Section 4.02 Shareholders Meeting. Immediately following the Closing,
the Board of Directors of Laser as constituted following the Closing, shall
call a special meeting of the shareholders of LASER and solicit proxies from
the shareholders of LASER for at least the following purposes:
(i) to increase the authorized shares of common stock of LASER to
250,000,000 shares, or such other amount as the Board of Directors
shall deem prudent;
(ii) to change the name of LASER to BROADCAST INTERNATIONAL, INC.;
(iii) to elect a new slate of Board of Directors; and,
(iv) to approve and ratify the selection of the Board of Director's
appointment of independent auditors for the current fiscal year.
Section 4.03 Subsequent Issuance of Stock. Immediately following the
authorization of additional shares of LASER common stock, LASER shall issue
additional shares of common stock to the former BROADCAST Shareholders
("Subsequent Issuance Shares") in the amounts shown on Schedule 4.01 with the
intent that following such additional issuances the shareholders of LASER
immediately prior to the Closing shall own (or have the right to acquire
through the exercise of vested options) in the aggregate 2% of the issued and
outstanding shares of common stock of LASER immediately after the issuance of
the Subsequent Issuance Shares. Provided, however, no shares issued to
▇▇▇▇▇▇▇▇ Family, LLC or Madison, LLC pursuant to this transaction shall be
included in the number of shares constituting 2% of the then issued and
outstanding shares.
Section 4.04 Broadcast Options. Options to acquire BROADCAST stock as
shown on Schedule 1.06 shall be assumed by LASER and converted to options to
acquire LASER common stock in such amounts and at such price as is comparable
to the exchange ratio used to calculate the amount of common stock issuable
pursuant to this Agreement to the BROADCAST SHAREHOLDERS.
Section 4.05 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on the date that this Agreement is
fully executed by all parties and at such time as the parties may agree
("Closing Date"). Such Closing shall take place at the BROADCAST offices at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. Provided, however, the
effective date of the transactions described herein shall be October 1, 2003.
Section 4.06 Closing Events. At the Closing, each of the respective
parties hereto shall execute, acknowledge, and deliver (or shall cause to be
executed, acknowledged, and delivered) any and all certificates, opinions,
financial statements, schedules, agreements, resolutions, rulings, or other
instruments required by this Agreement to be so delivered at or prior to the
Closing, together with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby.
ARTICLE V
SPECIAL COVENANTS
Section 5.01 Access to Properties and Records. LASER and BROADCAST
Shareholders will each afford to the officers and authorized representatives
of the other full access to the properties, books, and records of LASER or
BROADCAST as the case may be, in order that each may have full opportunity to
make such reasonable investigation as it shall desire to make of the affairs
of the other, and each will furnish the other with such additional financial
and operating data and other information as to the business and properties of
LASER or BROADCAST, as the case may be, as the other shall from time to time
reasonably request.
Section 5.02 Delivery of Books and Records. At the Closing, BROADCAST
shall deliver to LASER the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of BROADCAST now
in the possession of BROADCAST or its representatives.
Section 5.03 Special Covenants and Representations Regarding the
Exchanged Stock. The consummation of this Agreement and the transactions
herein contemplated, including the issuance of the Initial Issuance Stock and
the Subsequent Issuance Stock to the shareholders of BROADCAST as contemplated
hereby, constitutes the offer and sale of securities under the Securities Act
and applicable state statutes. Such transaction shall be consummated in
reliance on exemptions from the registration and prospectus delivery
requirements of such statutes which depend, inter alia, upon the circumstances
under which the BROADCAST Shareholders acquire such securities. In connection
with reliance upon exemptions from the registration and prospectus delivery
requirements for such transactions, at the Closing, BROADCAST shall cause to
be delivered, and the shareholders shall deliver to LASER, letters of
representation in the appropriate form.
Section 5.04 Third Party Consents and Certificates. LASER and
BROADCAST agree to cooperate with each other in order to obtain any required
third party consents to this Agreement and the transactions herein and therein
contemplated.
Section 5.05 Employment. All agreements, whether written or oral,
related to the employment of any LASER employees or persons who supply
services to LASER in any manner shall be terminated prior to the Closing or
assigned to one of LASER's subsidiaries with LASER receiving a complete
novation from any liability related to or arising from any such relationship.
The consent of any employee or service provider affected by such assignment
or termination shall consent to the assignment or termination prior to the
Closing.
Section 5.06 Sales Under Rules 144 or 145, If Applicable.
(i) LASER will use its best efforts to at all times comply with the
reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including timely filing all periodic
reports required under the provisions of the Exchange Act and the
rules and regulations promulgated thereunder.
(ii) Upon being informed in writing by any person holding restricted
stock of LASER as of the date of this Agreement that such person
intends to sell any shares under Rule 144 or Rule 145 promulgated
under the Securities Act (including any rule adopted in
substitution or replacement thereof), LASER will certify in
writing to such person that it has filed all of the reports
required to be filed by it under the Exchange Act to enable such
person to sell such person's restricted stock under Rule 144 or
145, as may be applicable in the circumstances, or will inform
such person in writing that it has not filed any such report or
reports.
(iii) If any certificate representing any such restricted stock is
presented to LASER's transfer agent for registration of transfer
in connection with any sale theretofore made under Rule 144 or
145, provided such certificate is duly endorsed for transfer by
the appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with
reasonable assurances that such endorsements are genuine and
effective, and is accompanied by an opinion of counsel
satisfactory to LASER and its counsel that such transfer has
complied with the requirements of Rule 144 or 145, as the cases
may be, LASER will promptly instruct its transfer agent to
register such transfer and to issue one or more new certificates
representing such shares to the transferee and, if appropriate
under the provisions of Rule 144 or 145, as the case may be, free
of any stop transfer order or restrictive legend. The provisions
of this Section 4.07 shall survive the Closing and the
consummation of the transactions contemplated by this Agreement.
Section 5.07 Indemnification.
(i) BROADCAST and the BROADCAST Shareholders hereby agree to indemnify
LASER and each of the officers, agents and directors of LASER as
of the date of execution of this Agreement against any loss,
liability, claim, damage, or expense (including, but not limited
to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or
they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentation made under Articles I and/or II
of this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this
Agreement.
(ii) LASER hereby agrees to indemnify BROADCAST and each of the
officers, agents and directors of BROADCAST as of the date of
execution of this Agreement against any loss, liability, claim,
damage, or expense (including, but not limited to, any and all
expense whatsoever reasonably incurred in investigating,
preparing, or defending against any litigation, commenced or
threatened, or any claim whatsoever), to which it or they may
become subject arising out of or based on any inaccuracy appearing
in or misrepresentation made under Article III of this Agreement.
The indemnification provided for in this paragraph shall survive
the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF BROADCAST
The obligations of BROADCAST under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 6.01 Accuracy of Representations. The representations and
warranties made by LASER in this Agreement were true when made and shall be
true at the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing Date (except
for changes permitted by this Agreement), and LASER shall have performed or
complied with all covenants and conditions required by this Agreement to be
performed or complied with by LASER prior to or at the Closing. BROADCAST
shall be furnished with a certificate, signed by a duly authorized officer of
LASER and dated the Closing Date, to the foregoing effect.
Section 6.02 Officer's Certificates. Broadcast shall have been
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of LASER to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of LASER
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the LASER Schedules, by or against LASER which might
result in any material adverse change in any of the assets, properties,
business, or operations of LASER.
Section 6.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business, or operations of LASER nor shall any event have occurred
which, with the lapse of time or the giving of notice, may cause or create any
material adverse change in the financial condition, business, or operations of
LASER.
Section 6.04 Good Standing. BROADCAST shall have received a
certificate of good standing from the Utah Division of Corporations and
Commercial Code or other appropriate office, dated as of a date within ten
days prior to the Closing Date certifying that LASER is in good standing as a
corporation in the State of Utah and has filed all tax returns required to
have been filed by it to date and has paid all taxes reported as due thereon.
Section 6.05 Other items. BROADCAST shall have received a shareholders
list of LASER containing the name, address, and number of shares held by each
LASER shareholder as of the date of Closing certified by an executive officer
of LASER as being true, complete, and accurate. BROADCAST shall have received
such further documents, certificates, or instruments relating to the
transactions contemplated hereby as BROADCAST may reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF LASER
The obligations of LASER under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 7.01 Accuracy of Representations. The representations and
warranties made by BROADCAST in this Agreement were true when made and shall
be true at the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing Date (except
for changes permitted by this Agreement), and BROADCAST shall have performed
or complied with all covenants and conditions required by this Agreement to be
performed or complied with by BROADCAST prior to or at the Closing. LASER
shall be furnished with a certificate, signed by a duly authorized officer of
BROADCAST and dated the Closing Date, to the foregoing effect.
Section 7.02 Officer's Certificates. LASER shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of BROADCAST to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of BROADCAST
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the BROADCAST Schedules, by or against BROADCAST which
might result in any material adverse change in any of the assets, properties,
business, or operations of BROADCAST.
Section 7.03 No Material Adverse change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business, or operations of BROADCAST nor shall any event have
occurred which, with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial condition, business, or
operations of BROADCAST.
Section 7.04 Good Standing. LASER shall have received a certificate of
good standing from the Utah Division of Corporations and Commercial Code or
other appropriate office, dated as of a date within ten days prior to the
Closing Date certifying that BROADCAST is in good standing as a corporation in
the State of Utah and has filed all tax returns required to have been filed by
it to date and has paid all taxes reported as due thereon.
Section 7.05 Other items. LASER shall have received such further
documents, certificates, or instruments relating to the transactions
contemplated hereby as LASER may reasonably request.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Brokers. LASER and BROADCAST agree that there were no
finders or brokers involved in bringing the parties together or who were
instrumental in the negotiation, execution, or consummation of this Agreement.
LASER and BROADCAST each agree to indemnify the other against any claim by any
third person other than those described above for any commission, brokerage,
or finders' fee arising from the transactions contemplated hereby based on any
alleged agreement or understanding between the indemnifying party and such
third person, whether express or implied from the actions of the indemnifying
party.
Section 8.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to matters of state law, with the laws of
Utah.
Section 8.03 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it
or sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to LASER to: ▇▇▇▇▇ ▇▇▇▇▇▇▇
%▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Holland & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Holland & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to BROADCAST, to: ▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇. #▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇. #▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
Section 8.04 Attorney's Fees. In the event that any party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the breaching party or parties shall
reimburse the nonbreaching party or parties for all costs, including
reasonable attorneys' fees, incurred in connection therewith and in enforcing
or collecting any judgment rendered therein.
Section 8.05 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules
delivered pursuant to this Agreement.
Section 8.06 Third Party Beneficiaries. This contract is solely
between LASER and BROADCAST, and, except as specifically provided, no
director, officer, stockholder, employee, agent, independent contractor, or
any other person or entity shall be deemed to be a third party beneficiary of
this Agreement.
Section 8.07 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof, including
This Agreement alone fully and completely expresses the agreement of the
parties relating to the subject matter hereof. There are no other courses of
dealing, understandings, agreements, representations, or warranties, written
or oral, except as set forth herein.
Section 8.08 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated.
Section 8.09 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 8.10 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether
conferred herein, at law, or in equity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any obligation by
the other shall be construed as a waiver of the same or any other default
then, theretofore, or thereafter occurring or existing. At any time prior to
the Closing Date, this Agreement may be amended by a writing signed by all
parties hereto, with respect to any of the terms contained herein, and any
term or condition of this Agreement may be waived or the time for performance
hereof may be extended by a writing signed by the party or parties for whose
benefit the provision is intended.
Section 8.11 Arbitration. The parties hereto shall attempt in good
faith to resolve promptly any disputes arising out of or relating to this
Agreement or any aspect of the relationship among the parties. In the event
any such dispute cannot be resolved, the parties agree that such disputes
shall be resolved through arbitration conducted in accordance with the
American Arbitration Association Commercial Arbitration Rules then in effect
and the arbitration will take place in Salt Lake City, Utah.
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly
authorized, as of the date first above-written.
LASER CORPORATION
ATTEST: "LASER"
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________ By __________________________
Secretary or Assistant Secretary ▇▇▇▇▇ ▇▇▇▇▇▇▇, President
ATTEST:
BI ACQUISITIONS, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By ______________________________ By___________________________
, Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
BROADCAST Shareholders
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_________________________________ __________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
_________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________________________
Broadcast International, Ltd.
By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Agent