EXHIBIT 99.1
ACQUISITION AGREEMENT
AMONG
IMAGING TECHNOLOGIES CORPORATION,
ENSTRUCTURE, INC.,
AND
THE STOCKHOLDERS LISTED ON EXHIBIT A HERETO
TABLE OF CONTENTS
TABLE OF SCHEDULES AND EXHIBITS
Exhibit A Shareholders of EnStructure, Inc.
Exhibit B Imaging Technologies Corporation Disclosure Schedule
Exhibit C EnStructure, Inc. Disclosure Schedule
Exhibit D EnStructure, Inc. Shareholders Disclosure Schedule
Exhibit E List of Existing Accounts
Schedule 1.2.1 Assets and Liabilities of EnStructure, Inc.
STOCK PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement"), dated as of March 8, 2002,, is by
and among Imaging Technologies Corporation, a Delaware corporation ("Buyer"),
EnStructure, Inc., a Nevada corporation, and each of its subsidiaries
(collectively the "Company"), and the persons and/or entities listed on Exhibit
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A hereto who are the holders in the aggregate of all the issued and outstanding
capital stock of the Company (referred to collectively as the "Seller") (Buyer,
Company, and Seller may be referred to collectively as the "Parties").
R E C I T A L S
A. The capital stock of the Company consists of Twenty-five thousand
(25,000) authorized shares of Common Stock, $0.01 par value (the "Company
Shares" or "Shares"), of which Twenty-five thousand (25,000) are currently
issued and outstanding and held by Seller.
B. Upon the terms and conditions set forth below, Seller desires to sell all
of the Shares in the Company to Buyer, such that, following such transaction,
the Company will be a 100% owned subsidiary of Buyer.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the Parties hereto
agree as follows:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Issuance of the Shares. Subject to the terms and conditions herein
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set forth, and on the basis of the representations, warranties and agreements
herein contained, Seller shall sell and transfer to Buyer that certain number of
the Company Shares that will constitute 100% of the issued and outstanding
common stock of the Company.
1.2 Consideration. In consideration for this Agreement, the Parties shall
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provide the following:
1.2.1. The Company's Assets and Liabilities. Upon the Closing (as
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defined below), Buyer will purchase all of the outstanding stock of the Company.
All assets and liabilities of the Company shall be listed on Schedule 1.2.1 by
the Company.
1.2.2 Purchase Price. The Purchase Price shall be $ 250,000,
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increased or decreased as set forth in this paragraph and Paragraph 1.2.3,
below. The Purchase Price has been determined based on the representation that
BY June 2002, the Company will have an annual revenue run rate of approximately
$20,000,000 with net annual profit in the range of $200,000 from accounts shown
on Exhibit E hereto. The Purchase Price will be payable in Buyer's shares of
common stock (Buyer's Shares"). This Purchase Price is based upon Company
delivering a monthly revenue rate of $1,700,000 by month ending June 2002.
Twelve million, five hundred thousand Buyer's Shares will be held in escrow by
Buyer's attorney until the actual June revenue is known. The actual number of
Buyer's Shares to be issued to Sellers will be adjusted upward or downward based
upon June's actual results from existing accounts as shown on Exhibit E hereto
("Actual June Revenue"). The formula to be used is: Buyer's Shares to be issued
to Sellers shall be equal to Actual June Revenue divided by $1,700,000
multiplied by $250,000, divided by the closing price of Buyer's Shares the
trading day prior to the day that Buyer's Shares are issued to Sellers, which
will be no later than fifteen (15) business days after the Actual June Revenue
is provided to Buyer. The number of Buyer's Shares to be issued to Sellers will
be adjusted for any stock dividends, stock splits, reverse splits or similar
actions occurring between the date this Agreement is signed and the day that the
Buyer's Shares are issued to Sellers. Two million, five hundred thousand of the
Buyer's Shares to be issued to Sellers will remain in escrow with Buyer's
attorney until the calculation contemplated by Paragraph 1.2.3, below, is done.
1.2.3 Client Retention.Client retention and maintenance of revenue
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are material to the Buyer's desire to acquire the Company. Therefore, if the
average monthly revenue for the period July-December, 2002 from existing
accounts as shown on Exhibit E hereto should decrease from the Actual June
Revenue, then the purchase price shall be adjusted downward by the following
formula: Buyer's Shares to be issued to Sellers shall be equal to the average
monthly revenue for the period July-December, 2002 divided by the Actual June
Revenue multiplied by the number of Buyer's Shares to be issued under paragraph
1.2.2. The Buyer's Shares remaining in escrow with Buyer's attorney will be
distributed according to the results of this calculation.
1.2.4 Management Agreements. A management and/or consulting agreement
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mutually approved by Buyer and Seller will be negotiated and executed between
the Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Seller and the Company. For
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purposes of this Agreement, the representations and warranties set forth in this
Agreement that apply to the Company also apply to each subsidiary of the
Company. Except as disclosed in a schedule to this Agreement referring
specifically to the representations and warranties in this Agreement that
identifies by section number the section and subsection to which such disclosure
relates and is delivered by the Seller and the Company to the Buyer prior to the
execution of this Agreement (the "Disclosure Schedules"), the Seller and the
Company (including each subsidiary of the Company) each represent, warrant and
covenant to Buyer, as of the date hereof and as of the Closing, as follows:
2.1.1 Organization, Standing, Power. The Company is a corporation duly
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organized, validly existing, and in good standing under the laws of the state of
Nevada. It has all requisite corporate power, franchises, licenses, permits, and
authority to own its properties and assets and to carry on its business as it
has been and is being conducted. The Company is duly qualified and in good
standing to do business in each jurisdiction in which a failure to so qualify
would have a Material Adverse Effect (as defined below) on the Company. For
purposes of this Agreement, the term "Material Adverse Effect" means any change
or effect that, individually or when taken together with all other such changes
or effects which have occurred prior to the date of determination of the
occurrence of the Material Adverse Effect, is or is reasonably likely to be
materially adverse to the business, assets (including intangible assets),
financial condition, or results of operations of the entity.
2.1.2 Authority; No Conflict. The Company has all requisite power and
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authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Company of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company, including the
approvals of the shareholders and the Board of Directors of the Company. This
Agreement has been duly executed and delivered by the Company and the Seller and
constitutes a valid and binding obligation of each of said parties enforceable
in accordance with its terms, The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation, or acceleration of any obligation, or to loss of a material
benefit under, or the creation of a lien, pledge, security interest, charge, or
other encumbrance on any assets of the Company (any such conflict, violation,
default, right, loss, or creation being referred to herein as a "Violation")
pursuant to: (i) any provision of the organization documents of the Company; or
(ii) any loan or credit agreement, note, bond, mortgage, indenture, contract,
lease, or other agreement, or instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule, or regulation
applicable to the Company's or the Seller's respective properties or assets,
other than in the case of any such Violation which individually or in the
aggregate would not have a Material Adverse Effect on any of the Parties.
2.1.3 Capitalization of the Company.
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(a) The Company. The capital stock of the Company consists of
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Twenty-five thousand (25,000) authorized shares of Common Stock, $0.01 par value
(the "Company Shares"), of which Twenty-five thousand (25,000) are currently
issued and outstanding and held by Seller.
(b) The Company Shares are duly and validly issued, fully paid and
nonassessable, and issued in accordance with the registration or qualification
provisions of the Securities Act of 1933, as amended (the "Act"), and any
relevant state securities laws or pursuant to valid exemptions therefrom. The
Company Shares are free of restrictions on transfer other than restrictions on
transfer under applicable state and federal securities laws.
(d) There are no options, warrants, rights, calls, commitments, plans,
contracts, or other agreements of any character granted or issued by the Company
or Seller which provide for the purchase, issuance, or transfer of any
additional shares of the capital stock of the Company nor are there any
outstanding securities granted or issued by the Company that are convertible
into any shares of the equity securities of the Company, and none is authorized.
The Company has no outstanding bonds, debentures, notes, or other indebtedness
the holders of which have the right to vote (or convertible or exercisable into
securities having the right to vote) with holders of the Company's capital stock
on any matter.
(e) The Company is not a party or subject to any agreement or
understanding, and, to the best of the knowledge, there is no agreement or
understanding between any persons and/or entities, which affects or relates to
the voting or giving of written consents with respect to any security or by a
shareholder or director of the Company.
(f) The Company has not granted or agreed to grant any registration rights,
including piggyback rights, to any person or entity.
2.1.4 Subsidiaries. "Subsidiary" or "Subsidiaries" means all
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corporations, trusts, partnerships, associations, joint ventures, or other
Persons of which the Company owns not less than twenty percent (20%) of the
voting securities or other equity or of which any of the Parties or any
Subsidiary of any of the Parties possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies, whether through
ownership of voting shares, management contracts, or otherwise. "Person" means
any individual, corporation, trust, association, partnership, proprietorship,
joint venture, or other entity. Prior to the Closing of this Agreement, there
are no Subsidiaries of the Company other than as disclosed herein or disclosed
on the Disclosure Schedules. The Disclosure Schedules set forth the owners with
percentage ownership of each Subsidiary.
2.1.5 No Defaults. The Company has not received notice that it would be,
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with the passage of time, in default or violation of any term, condition, or
provision of: (i) its Articles of Incorporation or Bylaws; (ii) any judgment,
decree, or order applicable to it; or (iii) any loan or credit agreement, note,
bond, mortgage, indenture, contract, agreement, lease, license, or other
instrument to which the Company is now a party or by which it or any of its
properties or assets may be bound, except for defaults and violations which,
individually or in the aggregate, would not have a Material Adverse Effect on
any of the Parties.
2.1.6 Governmental Consents. Any consents, approvals, orders, or
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authorizations of or registrations, qualifications, designations, declarations,
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or filings with or exemptions by (collectively "Consents"), any court,
administrative agency, or commission, or other federal, state, or local
governmental authority or instrumentality, whether domestic or foreign (each a
"Governmental Entity"), which may be required by or with respect to the Company
in connection with the execution and delivery of this Agreement or the
consummation by it of the transactions contemplated hereby, except for such
Consents which if not obtained or made would not have a Material Adverse Effect
on any of the Parties for the transactions contemplated by this Agreement, are
the responsibility of the respective Party. The Company hereby represents and
warrants that such Consents have been obtained by it.
2.1.7 Financial Statements. Prior to Closing, as defined herein, the Company
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will have furnished Buyer with a true and complete copy of its financial
statements for the period ending February 28, 2001, (the "Financial
Statements"), which will comply as to form in all material respects with all
applicable accounting requirements with respect thereto, including GAAP,
Regulation S-K and Regulation S-X, as if the Company were required to file
reports under the 1934 Act, will have been prepared internally and will fairly
present the financial positions of the Company as at the dates thereof and the
results of its operations and cash flows for the periods then ended. Prior to
Closing, as defined herein, the Financial Statements will have been audited by
an auditing firm selected by Buyer, and will contain the auditor's report
thereon. There will have been no change in the Company's accounting policies or
the methods of making accounting estimates or changes in estimates that are
material to the Financial Statements, except as described in the notes thereto.
2.1.8 Absence of Undisclosed Liabilities. The Company has no liabilities nor
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obligations (whether absolute, accrued, or contingent) except: (i) Liabilities
that are accrued or reserved against in its Balance Sheet; or (ii) additional
Liabilities reserved against since February 28, 2002 that (x) have arisen in the
ordinary course of business; (y) are accrued or reserved against on their books
and records; and (z) amount in the aggregate to less than $10,000. All
liabilities of the Company known to the Company or the Sellers are set forth on
Schedule 2.1.8.
2.1.9 Absence of Changes. Since February 28, 2002, the Company has
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conducted its businesses in the ordinary course and there has not been: (i) any
Material Adverse Effect on the business, financial condition, liabilities, or
assets of the Company or any development or combination of developments of which
either management of the Company or Seller has knowledge which is reasonably
likely to result in such an effect; (ii) any damage, destruction, or loss,
whether or not covered by insurance, having a Material Adverse Effect on the
Company; (iii) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock, or property) with respect to the
capital stock of the Company; (iv) any increase or change in the compensation or
benefits payable or to become payable by the Company to any of its employees;
(v) any sale, lease, assignment, disposition, or abandonment of a material
amount of property of the Company; (vi) any increase or modification in any
bonus, pension, insurance, or other employee benefit plan, payment, or
arrangement made to, for, or with any of its employees; (vii) the granting of
stock options, restricted stock awards, stock bonuses, stock appreciation
rights, and similar equity based awards; (viii) any resignation or termination
of employment of any officer of the Company, and the Company to the best of its
knowledge, does not know of the impending resignation or termination of
employment of any such officer; (ix) any merger or consolidation with another
entity, or acquisition of assets from another entity; (x) any loan or advance by
the Company to any person or entity, or guaranty by the Company of any loan or
advance; (xi) any amendment or termination of any contract, agreement, or
license to which the Company is a party; (xii) any mortgage, pledge, or other
encumbrance of any asset of any of the Company; (xiii) any waiver or release of
any right or claim of the Company; (xiv) any write off as uncollectible any note
or account receivable or portion thereof; or (xv) any agreement by the Company
to do any of the things described in this paragraph.
2.1.10 Patents and Trademarks. The Company has sufficient title and
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ownership of all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights, and processes (collectively,
"Intellectual Property") necessary for its businesses as now conducted without
any conflict with or infringement of the rights of others. The Intellectual
Property owned by the Company is listed in the Disclosure Schedules. There are
no outstanding options, licenses, or agreements of any kind relating to the
Intellectual Property, nor is the Company bound by or a party to any options,
licenses, or agreements of any kind with respect to the Intellectual Property of
any other person or entity. The Company has not received any communications
alleging that they have violated or, by conducting its businesses as proposed,
would violate any of the Intellectual Property of any other person or entity.
Neither Seller nor the Company are aware that any of their employees is
obligated under any contract (including licenses, covenants, or commitments of
any nature) or other agreement, or subject to any judgment, decree, or order of
any court or administrative agency, that would interfere with the use of his or
her best efforts to promote the interests of the Company or that would conflict
with the Company's respective business as proposed to be conducted. Neither the
execution or delivery of this Agreement, nor the carrying on of the Company's
business by its employees, nor the conduct of the Company's business as
proposed, will, to the best of the Company's and Seller's knowledge, conflict
with or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any contract, covenant, or instrument under which
any of such employees is now obligated. The Company does not believe that it is
or will be necessary to utilize any inventions of any of its employees (or
people it currently intends to hire) made prior to their employment by any of
the Parties.
2.1.11 Certain Agreements. Neither the execution and delivery of this
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Agreement nor the consummation of the transactions contemplated hereby will: (i)
result in any payment (including, without limitation, severance, unemployment
compensation, parachute payment, bonus, or otherwise), becoming due to any
director, employee, or independent contractor of the Company, from any other
Party under any agreement or otherwise; (ii) materially increase any benefits
otherwise payable under any agreement; or (iii) result in the acceleration of
the time of payment or vesting of any such benefits.
2.1.12 Compliance with Other Instruments. The Company is not in violation or
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default of any provision of its articles of incorporation or bylaws, or of any
instrument, judgment, order, writ, decree, or contract to which they are a party
or by which it is bound, or, to the best of its knowledge, of any provision of
any federal or state statute, rule, or regulation which may be applicable to it.
The execution, delivery, and performance of this Agreement and the consummation
of the transactions contemplated hereby will not result in any such violation or
be in conflict with or constitute, with or without the passage of time and
giving of notice, either a default under any such provision, instrument,
judgment, order, writ, decree, or contract, or an event that results in the
creation of any lien, charge, or encumbrance upon any assets of the Company or
the suspension, revocation, impairment, forfeiture, or nonrenewal of any
material permit, license, authorization, or approval applicable to the Company,
its businesses, or operations, or any of its assets or properties.
2.1.13 Employee Benefit Plans. All employee benefit plans (including without
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limitation all plans which authorize the granting of stock options, restricted
stock, stock bonuses, or other equity based awards) covering active, former, or
retired employees of the Company are listed in the Disclosure Schedules.
2.1.14 Other Personal Property. The books and records of the Company contain
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a complete and accurate listing and description, and specify the location, of
all trucks, automobiles, machinery, equipment, furniture, supplies, and other
tangible personal property owned by, in the possession of, or used by the
Company in connection with its business. Except as set forth in the Disclosure
Schedules, no personal property used by the Company in connection with its
business is held under any lease, security agreement, conditional sales
contract, or other title retention or security arrangement.
2.1.15 Properties and Liens. Except as reflected in the Financial
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Statements or as set forth in the Disclosure Schedules, and except for current
taxes not yet delinquent, the Company owns, free and clear of any liens, claims,
charges, options, or other encumbrances, all of its tangible and intangible
property, real and personal, whether or not reflected in the Financial
Statements (except that sold or disposed of in the ordinary course of business
since the date of such statements) and all such property acquired since the date
of such statements. All real property and tangible personal property of the
Company is in good operating condition and repair, ordinary wear and tear
excepted.
2.1.16 Inventory. The Company does not maintain any inventory.
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2.1.17 Major Contracts. The Company is not a party or subject to:
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(a) Any union contract, or any employment contract or arrangement
providing for future compensation, written or oral, with any officer,
consultant, director, or employee which is not terminable by the Company on 30
days' notice or less without penalty or obligations to make payments related to
such termination;
(b) Any joint venture contract, partnership agreement or arrangement or any
other agreement that has involved or is expected to involve a sharing of
revenues with other persons or a joint development of products with other
persons;
(c) Any manufacture, production, distribution, sales, franchise, marketing,
or license agreement, or arrangement by which products or services of the
Company are developed, sold, or distributed;
(d) Any material agreement, license, franchise, permit, indenture, or
authorization which has not been terminated or performed in its entirety and not
renewed which may be, by its terms, accelerated, terminated, impaired, or
adversely affected by reason of the execution of this Agreement, or the
consummation of the transactions contemplated hereby or thereby;
(e) Any material agreement, contract, or commitment that requires the
consent of another person for the Company to enter into or consummate the
transactions contemplated by this Agreement;
(f) Except for object code license agreements of the Company executed in the
ordinary course of business, any indemnification by the Company with respect to
infringements of proprietary rights; or
(g) Any contract containing covenants purporting to materially limit the
Company's freedom to compete in any line of business in any geographic area.
All contracts, plans, arrangements, agreements, licenses, franchises,
permits, indentures, authorizations, instruments, and other commitments to which
the Company is a party are listed in the Disclosure Schedules, are valid and in
full force and effect and neither the Company nor any other party thereto, has
breached any material provisions of, or is in default in any material respect
under the terms thereof.
2.1.18 Questionable Payments. The Company has not, nor has any
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director, officer, employee, or agent of any of the Company: (i) made any
payment or provided services or other favors in the United States or any foreign
country in order to obtain preferential treatment or consideration by any
Governmental Entity with respect to any aspect of the business of the Company;
or (ii) made any political contributions that would not be lawful under the laws
of the United States, any foreign country or any jurisdiction within the United
States or any foreign country. The Company has not, nor to its knowledge has any
director, officer, employee, or agent of the Company, been or is the subject of
any investigation by any Governmental Entity in connection with any such
payment, provision of services, or contribution.
2.1.19 Recent Transactions. The Company has not, nor has any director,
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officer, employee, or agent of the Company, participated in any discussions and
do not intend to engage in any discussion: (i) with any representative of any
corporation or corporations regarding the acquisition by or the consolidation or
merger of the Company with or into any such corporation or corporations; (ii)
with any corporation, partnership, association, or other business entity or any
individual regarding the sale, conveyance, or disposition of any of the assets
of the Company or a transaction or series of related transactions in which any
shares or stock of the Company are/is disposed of; or (iii) regarding any other
form of acquisition, liquidation, dissolution, or winding up of the Company.
2.1.20 Leases in Effect. All real property leases and subleases as to
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which the Company is a party and any amendments or modifications thereof (each a
"Lease" and, collectively, the "Leases") are listed in the Disclosure Schedules
and are valid, in full force and effect and enforceable, and there are no
existing defaults on the part of the Company and the Company has not received
nor given notice of default or claimed default with respect to any Lease, nor is
there any event that with notice or lapse of time, or both, would constitute a
default thereunder. No consent is required from any other person under any Lease
in connection with the completion of the transactions contemplated by this
Agreement, and the Company has not received notice that any party to any Lease
intends to cancel, terminate, or refuse to renew the same or to exercise any
option or other right thereunder.
2.1.21 Environmental.
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(a) (i) The business as presently or formerly engaged in by them is
and has been conducted in compliance with all applicable Environmental Laws (as
defined in subparagraph (b) below), including without limitation, having all
permits, licenses, and other approvals and authorizations, during the time they
engaged in such businesses; (ii) there are no civil, criminal, or administrative
actions, suits, demands, claims, hearings, investigations, or proceedings
pending or threatened against the Company relating to any violation, or alleged
violation, of any Environmental Law; and (iii) the Company has not incurred, and
none of its properties presently or formerly owned or operated by it are
presently subject to, any material liabilities (fixed or contingent) relating to
any suit, settlement, court order, administrative order, judgment, or claim
asserted or arising under any Environmental Law.
(b) "Environmental Law" means any federal, state, foreign, and local law,
statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, legal doctrine, order, judgment, decree, injunction,
requirement, or agreement with any governmental entity relating to: (i) the
protection, preservation, or restoration of the environment (including, without
limitation, air, water, vapor, surface water, groundwater, drinking water
supply, surface land, subsurface land, plant and animal life, or any other
natural resource), to human health or safety; or (ii) the exposure to, or the
use, storage, recycling, treatment, generation, transportation, processing,
handling, labeling, production, release, or disposal of hazardous substances, in
each case as amended and as now or hereafter in effect.
2.1.22 Taxes. (a) All taxes, assessments, fees, penalties, interest, and
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other governmental charges with respect to the Parties that have become due and
payable by February 28, 2002 have been paid in full or adequately reserved
against by the Company, and all taxes, assessments, fees, penalties, interest,
and other governmental charges which have become due and payable subsequent to
that date have been paid in full or adequately reserved against on its books of
account and such books are sufficient for the payment of all unpaid federal,
state, local, foreign, and other taxes, fees, and assessments (including without
limitation, income, property, sales, use, franchise, capital stock, excise,
added value, employees' income withholding, social security, and unemployment
taxes), and all interest and penalties thereon with respect to the periods then
ended and for all periods prior thereto;
(b) There are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the assessment of any tax or deficiency
against the Company, nor are there any actions, suits, proceedings,
investigations, or claims now pending against the Company in respect of any tax
or assessment, or any matters under discussion with any federal, state, local,
or foreign authority relating to any taxes or assessments, or any claims for
additional taxes or assessments asserted by any such authority; and
(c) There are no liens for taxes upon the assets of the Company except for
taxes that are not yet payable. The Company has withheld all taxes required to
be withheld in respect of wages, salaries, and other payments to all employees,
officers, and directors and timely paid all such amounts withheld to the proper
taxing authority.
2.1.23 Disputes and Litigation. There is no suit, claim, action,
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litigation, or proceeding pending or, to the knowledge of the Seller and the
Company, threatened against or affecting the Company, or any of its properties,
assets, or business or to which the Company is a party, in any court or before
any arbitrator of any kind or before or by any Governmental Entity, which would,
if adversely determined, individually or in the aggregate, have a Material
Adverse Effect on the Parties, nor is there any judgment, decree, injunction,
rule, or order of any Governmental Entity or arbitrator outstanding against the
Company, and having, or which, insofar as reasonably can be foreseen, in the
future could have, any such effect. There is no investigation pending or
threatened against the Company before any foreign, federal, state, municipal, or
other governmental department, commission, board, bureau, agency,
instrumentality, or other Governmental Entity.
2.1.24 Compliance with Laws. The Company's business is not being
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conducted in violation of, or in a manner which could cause liability under any
applicable law, rule, or regulation, judgment, decree, or order of any
Governmental Entity, except for any violations or practices, which, individually
or in the aggregate, have not had and will not have a Material Adverse Effect on
the Company. The Company has all franchises, permits, licenses, and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which could materially and adversely affect the business,
properties, prospects, or financial condition of the Company and it believes it
can obtain, without undue burden or expense, any similar authority for the
conduct of its business as it is planned to be conducted. The Company is not in
default in any material respect under any of such franchises, permits, licenses,
or other similar authority. A true and complete list of all such franchises,
permits, and licenses held by the Company is set forth in the Disclosure
Schedules.
2.1.25 Related Party Transactions. No employee, officer, or director of the
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Company nor member of his or her immediate family is indebted to the Company or
any other Party, nor is any Party indebted (or committed to make loans or extend
or guarantee credit) to any of said persons. None of such persons has any direct
or indirect ownership interest in any firm or corporation with which the Company
is affiliated or with which the Company has a business relationship, or any firm
or corporation that competes with the Parties, except that employees, officers,
or directors of the Company and members of their immediate families may own
stock in publicly traded companies that may compete with the Company. No member
of the immediate family of any officer or director of any the Company is
directly or indirectly interested in any material contract with any of the
Parties.
2.1.26 Insurance. The Company has or shall obtain fire and casualty
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insurance policies, with extended coverage, sufficient in amount (subject to
reasonable deductibles) to allow them to replace any of their properties that
might be damaged or destroyed within 45 days of the execution of this Agreement.
The Seller shall have in effect and in good standing the current Worker's
Compensation with its current carrier at the time of closing.
2.1.27 Minute Books. The minute books of the Company provided to Buyer
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contain a complete summary of all meetings of directors and shareholders since
the time of incorporation and reflect all transactions referred to in such
minutes accurately in all material respects.
2.1.28 Disclosure. No representation or warranty made by either the Company
----------
or Seller in this Agreement, nor any document, written information, statement,
financial statement, certificate, or exhibit prepared and furnished or to be
prepared and furnished by said parties or their representatives pursuant hereto
or in connection with the transactions contemplated hereby, when taken together,
contains any untrue statement of a material fact, or omits to state a material
fact necessary to make the statements or facts contained herein or therein not
misleading in light of the circumstances under which they were furnished.
2.1.29 Reliance. The foregoing representations and warranties are made by
--------
Seller and the Company with the knowledge and expectation that the Buyer is
placing reliance thereon.
2.2 Representations and Warranties of Buyer. Except as disclosed in a
------------------------------------------
document referring specifically to the representations and warranties in this
Agreement that identifies by section number the section and subsection to which
such disclosure relates and is delivered by Buyer to Seller prior to the
execution of this Agreement (the "Disclosure Schedules"), the Buyer represents,
warrants and covenants to Seller and the Company, as of the date hereof and as
of the Closing, as follows:
2.2.1 Organization, Standing, Power. The Buyer is a corporation duly
-------------------------------
organized, validly existing, and in good standing under the laws of the state of
Delaware. It has all requisite corporate power, franchises, licenses, permits,
and authority to own its properties and assets and to carry on its business as
it has been and is being conducted. The Company is duly qualified and in good
standing to do business in each jurisdiction in which a failure to so qualify
would have a Material Adverse Effect (as defined below) on this transaction.
2.2.2 Authority. The Buyer has all requisite power and authority to
---------
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by the Buyer of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Buyer, including the approvals of the
Board of Directors of the Buyer. This Agreement has been duly executed and
delivered by the Buyer and constitutes a valid and binding obligation of Buyer
enforceable in accordance with its terms. Subject to the satisfaction of the
conditions set forth in Article 3 below, the execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, conflict with or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation, or acceleration of any obligation, or to loss of a
material benefit under, or the creation of a lien, pledge, security interest,
charge, or other encumbrance on any assets of the Buyer pursuant to: (i) any
provision of the organization documents of the Buyer; or (ii) any loan or credit
agreement, note, bond, mortgage, indenture, contract, lease, or other agreement,
or instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule, or regulation applicable to the Buyer's
respective properties or assets, other than in the case of any such Violation
which individually or in the aggregate would not have a Material Adverse Effect
on any of the Parties.
ARTICLE 3
CONDITIONS PRECEDENT
3.1 Conditions to Each Party's Obligations. The respective obligations
---------------------------------------
of each Party hereunder shall be subject to the satisfaction prior to or at the
Closing of the following conditions:
(a) No Restraints. No statute, rule, regulation, order, decree, or
--------------
injunction shall have been enacted, entered, promulgated, or enforced by any
court or Governmental Entity of competent jurisdiction which enjoins or
prohibits the consummation of this Agreement and shall be in effect.
(b) Legal Action. There shall not be pending or threatened in writing any
-------------
action, proceeding, or other application before any court or Governmental Entity
challenging or seeking to restrain or prohibit the consummation of the
transactions contemplated by this Agreement, or seeking to obtain any material
damages.
3.2 Conditions to Seller's Obligations. The obligations of Seller shall
----------------------------------
be subject to the satisfaction prior to or at the Closing of the following
conditions unless waived by Seller:
(a) Representations and Warranties of Buyer. The representations and
------------------------------------------
warranties of Buyer set forth in this Agreement shall be true and correct as of
the date of this Agreement and as of the Closing as though made on and as of the
Closing, except: (i) as otherwise contemplated by this Agreement; or (ii) in
respects that do not have a Material Adverse Effect on the Parties or on the
benefits of the transactions provided for in this Agreement. Seller shall have
received a certificate signed on behalf of Buyer by the Chief Executive Officer
of Buyer to such effect on the Closing.
(b) Performance of Obligations of Buyer. Buyer shall have performed all
---------------------------------------
agreements and covenants required to be performed by it under this Agreement
prior to the Closing, except for breaches that do not have a Material Adverse
Effect on the Parties or on the benefits of the transactions provided for in
this Agreement. Seller shall have received a certificate signed on behalf of
Buyer by the Chief Executive Officer of Buyer to such effect on the Closing.
3.3 Conditions to Buyer's Obligations. The obligations of Buyer shall
-----------------------------------
be subject to the satisfaction prior to or at the Closing of the following
conditions unless waived by Buyer:
(a) Representations and Warranties of Seller and the Company. The
--------------------------------------------------------------
representations, warranties and covenants of Seller and the Company set forth in
this Agreement shall be true and correct as of the date of this Agreement and as
of the Closing as though made on and as of the Closing. Buyer shall have
received certificates signed on behalf of Seller and the Company by the Chief
Executive Officer or President of each Seller and the Company to such effect on
the Closing.
(b) Performance of Obligations of Seller and the Company. Seller and the
--------------------------------------------------------
Company shall have performed all agreements and covenants required to be
performed by them under this Agreement prior to the Closing, except for breaches
that do not have a Material Adverse Effect on the Parties or on the benefits of
the transactions provided for in this Agreement. Buyer shall have received
certificates signed on behalf of Seller and the Company by the Chief Executive
Officer or President of each Seller and the Company to such effect on the
Closing.
(c) Governmental Approvals. All Consents of Governmental Entities legally
-----------------------
required by Seller and the Company for the transactions contemplated by this
Agreement shall have been filed, occurred, or been obtained, other than such
Consents, the failure of which to obtain would not have a Material Adverse
Effect on the consummation of the transactions contemplated by this Agreement.
(d) Consents of Other Third Parties. Seller and the Company shall have
--------------------------------
received and delivered to Buyer all requisite consents and approvals of all
lenders, lessors, and other third parties whose consent or approval is required
in order for Seller and the Company to consummate the transactions contemplated
by this Agreement, or in order to permit the continuation after the Closing of
the business activities of the Company in the manner such business is presently
carried on by it. Buyer shall have received copies of any necessary written
consent(s) to this Agreement and the transactions contemplated herein.
(e) Material Adverse Change. Since the date hereof and through Closing,
-------------------------
there shall not have occurred any change, occurrence, or circumstance in Seller
or the Company having or reasonably likely to have, individually or in the
aggregate, in the reasonable judgment of Buyer, a Material Adverse Effect on the
Parties or on the transactions contemplated by this Agreement.
(f) Diligence Investigation. Buyer, in Buyer's sole and absolute discretion,
-----------------------
shall not have disapproved in writing prior to the Closing of any fact or item
concerning Seller and the Company examined by Buyer in connection with Buyer's
investigation of the Seller.
ARTICLE 4
CLOSING AND DELIVERY OF DOCUMENTS
4.1 Time and Place. The closing of the transactions contemplated by
----------------
this Agreement shall take place at the offices of Buyer's Legal Counsel, located
in Los Angeles County, CA, no later than March 22, 2002, or at such other time
and place as the Parties mutually agree upon in writing (which time and place
are hereinafter referred to as the "Closing").
4.2 Deliveries by Seller. At Closing, Seller shall make the following
----------------------
deliveries to Buyer:
(a) Certificate(s) representing the Company Shares that Buyer is
acquiring as set forth in Section 1.1 above, together with a stock power duly
executed in blank, with medallion signature guarantee by a bank or broker-dealer
that is a member of the medallion system;
(b) A certificate of good standing for the Company and for each Seller
if a Seller is an entity;
(c) A certificate executed by Seller certifying that: (i) all Seller's
representations and warranties under this Agreement are true as of the Closing,
as though each of those representations and warranties had been made on that
date; and (ii) Seller has performed all agreements and covenants required to be
performed by it under this Agreement prior to the Closing;
(d) Certified resolutions of the shareholders and Board of Directors of the
Company and of each Seller, if Seller is an entity, in form satisfactory to
Buyer, authorizing the execution and performance of this Agreement;
(e) Transfer of checking, banking and financial authority to Buyer in the
form satisfactory to Buyer; and
(f) Financial Statements as of February 28, 2002, as provided above.
4.3 Deliveries by the Company. At Closing, the Company shall make the
---------------------------
following deliveries to Buyer:
(a) A certificate representing the Company Shares that Buyer is
acquiring as set forth in Section 1.1 above;
(b) A certificate of good standing for the Company;
(c) A certificate executed by the Company certifying that: (i) all of the
Company's representations and warranties under this Agreement are true as of the
Closing, as though each of those representations and warranties had been made on
that date; and (ii) the Company has performed all agreements and covenants
required to be performed by it under this Agreement prior to the Closing, except
for breaches that do not have a Material Adverse Effect on the Parties or on the
benefits of the transactions provided for in this Agreement; and
(d) Certified resolutions of the shareholders and the Board of Directors of
the Company, in form satisfactory to counsel for Buyer, authorizing the
execution and performance of this Agreement; and
(e) The minute book and corporate records of the Company.
4.4 Deliveries by Buyer. At Closing, Buyer shall make the following
---------------------
deliveries to Seller:
(a) A certificate executed by Buyer certifying that: (i) Buyer's
representations and warranties under this Agreement are true as of the Closing,
as though each of those representations and warranties had been made on that
date; and (ii) Buyer has performed all agreements and covenants required to be
performed by it under this Agreement prior to the Closing, except for breaches
that do not have a Material Adverse Effect on the Parties or on the benefits of
the transactions provided for in this Agreement;
(b) A certificate of good standing for Buyer; and
(c) Certified resolutions of the Board of Directors of Buyer in form
satisfactory to counsel for Seller, authorizing the execution and performance of
this Agreement.
ARTICLE 5
INDEMNIFICATION
5.1 Seller and the Company's Indemnity Obligations.
---------------------------------------------------
(a) Upon receipt of notice thereof, Seller and the Company shall,
jointly and severally, indemnify, defend, and hold harmless Buyer from any and
all claims, demands, liabilities, damages, deficiencies, losses, obligations,
costs and expenses, including attorney fees and any costs of investigation that
Buyer shall incur or suffer, that arise, result from or relate to: (i) any
breach of, or failure by Seller or the Company to perform, any of their
representations, warranties, covenants, or agreements in this Agreement or in
any schedule, certificate, exhibit, or other instrument furnished or to be
furnished by Seller and/or the Company under this Agreement; and (ii) the
employment of any of the Company's employees which is in violation of any law,
regulation, or ordinance of any Governmental Entity.
(b) Buyer shall notify promptly Seller and the Company of the existence
of any claim, demand, or other matter to which Seller and the Company's
indemnification obligations would apply, and shall give them a reasonable
opportunity to defend the same at their own expense and with counsel of their
own selection, provided that Seller shall at all times also have the right to
fully participate in the defense. If Seller and the Company, within a reasonable
time after this notice, fails to defend, Buyer shall have the right, but not the
obligation, to undertake the defense of, and, with the written consent of Seller
and the Company, to compromise or settle the claim or other matter on behalf,
for the account, and at the risk, of Seller and the Company.
5.2 Buyer's Indemnity Obligations.
-------------------------------
(a) Upon receipt of notice thereof, Buyer shall indemnify, defend, and
hold harmless Seller and/or the Company from any and all claims, demands,
liabilities, damages, deficiencies, losses, obligations, costs, and expenses,
including attorney fees and any costs of investigation that Seller and/or the
Company shall incur or suffer, that arise, result from or relate to any breach
of, or failure by Buyer to perform any of its representations, warranties,
covenants, or agreements in this Agreement or in any schedule, certificate,
exhibit, or other instrument furnished or to be furnished by Buyer under this
Agreement.
(b) Seller and/or the Company shall notify promptly Buyer of the existence
of any claim, demand or other matter to which Buyer's indemnification
obligations would apply, and shall give it a reasonable opportunity to defend
the same at its own expense and with counsel of its own selection, provided that
Seller and the Company shall at all times also have the right to fully
participate in the defense. If Buyer, within a reasonable time after this
notice, fails to defend, Seller and the Company shall have the right, but not
the obligation, to undertake the defense of, and, with the written consent of
Buyer, to compromise or settle the claim or other matter on behalf, for the
account, and at the risk, of Buyer.
ARTICLE 6
DEFAULT, AMENDMENT AND WAIVER
6.1 Default. Upon a breach or default under this Agreement by any of
--------
the Parties (following the cure period provided herein), the non-defaulting
party shall have all rights and remedies given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. Notwithstanding the
foregoing, in the event of a breach or default by any Party hereto in the
observance or in the timely performance of any of its obligations hereunder
which is not waived by the non-defaulting Party, such defaulting Party shall
have the right to cure such default within 15 days after receipt of notice in
writing of such breach or default.
6.2 Waiver and Amendment. Any term, provision, covenant,
-----------------------
representation, warranty, or condition of this Agreement may be waived, but only
-
by a written instrument signed by the party entitled to the benefits thereof.
The failure or delay of any party at any time or times to require performance of
any provision hereof or to exercise its rights with respect to any provision
hereof shall in no manner operate as a waiver of or affect such party's right at
a later time to enforce the same. No waiver by any party of any condition, or of
the breach of any term, provision, covenant, representation, or warranty
contained in this Agreement, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such condition or breach
or waiver of any other condition or of the breach of any other term, provision,
covenant, representation, or warranty. No modification or amendment of this
Agreement shall be valid and binding unless it be in writing and signed by all
Parties hereto.
ARTICLE 7
PRE-CLOSING COVENANTS.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
7.1 General. Each of the Parties will use its reasonable best efforts to take
-------
all action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth
herein).
7.2 Notices and Consents. The Company will give any notices to third parties,
----------------------
and the Company will use its reasonable best efforts to obtain any third party
consents, that the Buyer reasonably may request in connection with the matters
referred to herein. Each of the Parties will give any notices to, make any
filings with, and use its reasonable best efforts to obtain any authorizations,
consents, and approvals of governments and governmental agencies in connection
with the matters referred to in this Agreement. Without limiting the generality
of the foregoing, each of the Parties will file (and the Company will cause each
of its Subsidiaries to file) any Notification and Report Forms and related
material that it may be required to file with the Federal Trade Commission and
the Antitrust Division of the United States Department of Justice under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, will use its reasonable best efforts to obtain a waiver
from the applicable waiting period, and will make any further filings pursuant
thereto that may be necessary ,proper, or advisable in connection therewith.
7.3 Operation of Business. The Company will not engage in any practice, take any
---------------------
action, or enter into any transaction outside the Ordinary Course of Business.
Without limiting the generality of the foregoing, the Company will not ((i)
declare, set aside, or pay any dividend or make any distribution with respect to
its capital stock or redeem, purchase, or otherwise acquire any of its capital
stock, (ii) pay any amount to any third party with respect to any liability or
obligation (including any costs and expenses the Company has incurred or may
incur in connection with this Agreement and the transactions contemplated
hereby), or (iii) otherwise engage in any practice, take any action, or enter
into any transaction of the sort that would materially injure the prospects of
the Company.
7.4 Preservation of Business. The Company will keep its business and properties
------------------------
substantially intact, including its present operations, physical facilities,
working conditions, and relationships with lessors, licensors, suppliers,
customers, and employees.
7.5 Full Access. The Company will permit representatives of the Buyer to have
------------
full access at all reasonable times, and in a manner so as not to interfere with
the normal business operations of the Company, to all premises, properties,
personnel, books, records (including tax records), contracts, and documents of
or pertaining to the Company. The Buyer will treat and hold as such any
Confidential Information it receives from any of the Company Stockholders, the
Company, and its Subsidiaries in the course of the reviews contemplated by this
paragraph will not use any of the Confidential Information except in connection
with this Agreement, and, if this Agreement is terminated for any reason
whatsoever, will return to the Sellers and the Company all tangible embodiments
(and all copies) of the Confidential Information which are in its possession.
7.6 Notice of Developments. Each Party will give prompt written notice to the
------------------------
other Party of any material adverse development causing a breach of any of its
own representations and warranties above. No disclosure by any Party pursuant
to this paragraph however, shall be deemed to amend or supplement any disclosure
schedule or to prevent or cure any misrepresentation, breach of warranty, or
breach of covenant.
7.7 Exclusivity. The Company will not (i) solicit, initiate, or encourage the
-----------
submission of any proposal or offer from any person relating to the acquisition
of any capital stock or other voting securities, or any substantial portion of
the assets, of any of the Company (including any acquisition structured as a
merger, consolidation, or share exchange) or (ii) participate in any discussions
or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
person to do or seek any of the foregoing.
7.8 Maintenance of Real Property. The Company shall maintain its real
-------------------------------
property, including all of the improvements in substantially the same condition
as of the date of this Agreement, ordinary wear and tear excepted, and shall not
demolish or remove any of the existing improvements, or erect new improvements
on the real property or any portion thereof, without the prior written consent
of the Buyer.
7.9 Leases. The Company shall not amend, modify, extend, renew or terminate any
------
Lease, nor shall the Company enter into any new lease, sublease, license or
other agreement for the use or occupancy of any real property without the prior
written consent of the Buyer.
ARTICLE 8
MISCELLANEOUS
8.1 Expenses. Whether or not the transactions contemplated hereby are
---------
consummated, each of the Parties hereto shall bear all taxes of any nature
(including, without limitation, income, franchise, transfer, and sales taxes)
and all fees and expenses relating to or arising from its compliance with the
various provisions of this Agreement and such party's covenants to be performed
hereunder, and except as otherwise specifically provided for herein, each of the
Parties hereto agrees to pay all of its own expenses (including, without
limitation, attorneys and accountants' fees, and printing expenses) incurred in
connection with this Agreement, the transactions contemplated hereby, the
negotiations leading to the same and the preparations made for carrying the same
into effect, and all such taxes, fees, and expenses of the Parties hereto shall
be paid prior to Closing.
8.2 Notices. Any notice, request, instruction, or other document
--------
required by the terms of this Agreement, or deemed by any of the Parties hereto
to be desirable, to be given to any other party hereto shall be in writing and
shall be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the following addresses:
To Buyer: Imaging Technologies Corporation
Attn: President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇ - Fax: ▇▇▇ ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 213/▇▇▇-▇▇▇▇
To the Company: EnStructure, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Seller: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o EnStructure, Inc.
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by facsimile, personal delivery, or
overnight delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given at the time of such delivery. If
notice is given by mail in accordance with the provisions of this Section, such
notice shall be conclusively deemed given seven days after deposit thereof in
the United States mail.
8.3 Entire Agreement. This Agreement, together with the Schedule and
-----------------
Exhibits hereto, sets forth the entire agreement and understanding of the
Parties hereto with respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and understandings related to the
subject matter hereof. No understanding, promise, inducement, statement of
intention, representation, warranty, covenant, or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto which is not embodied in this Agreement, or in the schedules or exhibits
hereto or the written statements, certificates, or other documents delivered
pursuant hereto or in connection with the transactions contemplated hereby, and
no party hereto shall be bound by or liable for any alleged understanding,
promise, inducement, statement, representation, warranty, covenant, or condition
not so set forth.
8.4 Survival of Representations. All statements of fact (including
-----------------------------
Financial Statements) contained in the Schedules, the exhibits, the
certificates, or any other instrument delivered by or on behalf of the Parties
hereto, or in connection with the transactions contemplated hereby, shall be
deemed representations and warranties by the respective party hereunder. All
representations, warranties, agreements, and covenants hereunder shall survive
the Closing and remain effective regardless of any investigation or audit at any
time made by or on behalf of the Parties or of any information a party may have
in respect hereto. Consummation of the transactions contemplated hereby shall
not be deemed or construed to be a waiver of any right or remedy possessed by
any party hereto, notwithstanding that such party knew or should have known at
the time of Closing that such right or remedy existed.
8.5 Incorporated by Reference. The schedules, exhibits, and all documents
---------------------------
(including, without limitation, all financial statements) delivered as part
hereof or incident hereto are incorporated as a part of this Agreement by
reference.
8.6 Remedies Cumulative. No remedy herein conferred upon the Parties is
--------------------
intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
8.7 Execution of Additional Documents. Each Party hereto shall make,
------------------------------------
execute, acknowledge, and deliver such other instruments and documents, and take
all such other actions as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions contemplated
hereby.
8.8 Finders' and Related Fees. Each of the Parties hereto is responsible
----------------------------
for, and shall indemnify the other against, any claim by any third party to a
fee, commission, bonus, or other remuneration arising by reason of any services
alleged to have been rendered to or at the instance of said party to this
Agreement with respect to this Agreement or to any of the transactions
contemplated hereby.
8.9 Governing Law. This Agreement has been negotiated and executed in the
--------------
State of California and shall be construed and enforced in accordance with the
laws of such state without regard to its conflict of laws provisions.
8.10 Forum. Each of the Parties hereto agrees that any action or suit which
-----
may be brought by any party hereto against any other party hereto in connection
with this Agreement or the transactions contemplated hereby may be brought only
in a federal or state court in Orange County or San Diego County, California.
8.11 Professional Fees. In the event any Party hereto shall commence legal
------------------
proceedings against the other to enforce the terms hereof, or to declare rights
hereunder, as the result of a breach of any covenant or condition of this
Agreement, the prevailing party in any such proceeding shall be entitled to
recover from the losing party its costs of suit, including reasonable attorneys'
fees, accountants' fees, and experts' fees.
8.12 Binding Effect and Assignment. This Agreement shall inure to the
--------------------------------
benefit of and be binding upon the Parties hereto and their respective heirs,
executors, administrators, legal representatives, and assigns.
8.13 Counterparts; Facsimile Signatures. This Agreement may be executed
----------------------------------
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
8.14 Representation. The Parties hereto agree and acknowledge that the
--------------
law firm of Radcliff, Frandsen, Dongell & ▇▇▇▇▇▇▇▇ LLP has represented Buyer in
preparing this Agreement. All Parties to this Agreement have been given the
opportunity to consult with counsel of their choice regarding their rights under
this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of
the date first written hereinabove.
BUYER:
Imaging Technologies Corporation,
a Delaware corporation
/s/ ▇▇▇▇▇ ▇▇▇▇▇
Its: Chief Executive Officer and President
THE COMPANY:
EnStructure, Inc.,
a Nevada corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: CEO
SELLER
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual
EXHIBIT A
SHAREHOLDERS OF ENSTRUCTURE, INC.
Name Number of Shares Held
---- ------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 25,000
EXHIBIT B
IMAGING TECHNOLOGIES CORPORATION DISCLOSURE SCHEDULE
The items set forth below are exceptions to the representations and warranties
of Imaging Technologies Corporation ("Buyer") set forth in Section 2 of the
Agreement. Any matter set forth herein as an exception to a section of the
Agreement shall be deemed to constitute an exception to all other applicable
sections of the Agreement. Capitalized terms not otherwise defined herein shall
have the meaning ascribed to them in the Agreement.
Section Exception
------- ---------
EXHIBIT C
ENSTRUCTURE, INC. DISCLOSURE SCHEDULE
The items set forth below are exceptions to the representations and warranties
of EnStructure, Inc. (the "Company") set forth in Section 2 of the Agreement.
Any matter set forth herein as an exception to a section of the Agreement shall
be deemed to constitute an exception to all other applicable sections of the
Agreement. Capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Agreement.
Section Exception
------- ---------
EXHIBIT D
ENSTRUCTURE, INC. SHAREHOLDERS DISCLOSURE SCHEDULE
The items set forth below are exceptions to the representations and warranties
of the Shareholders of EnStructure, Inc. ("Seller") set forth in Section 2 of
the Agreement. Any matter set forth herein as an exception to a section of the
Agreement shall be deemed to constitute an exception to all other applicable
sections of the Agreement. Capitalized terms not otherwise defined herein shall
have the meaning ascribed to them in the Agreement.
Section Exception
------- ---------
EXHIBIT E
EXISTING CONTRACTS
Graduate Systems
A-Professional
Gregg's Mobil
Family Toyota
Discount Auto
Discount Repair
▇▇▇▇▇▇ Distributing
▇▇▇▇▇▇▇▇ Union Station
Pomona Union Station
Fulcrum Technology
Netsource
San Clemente Mobile
North County Center
Schlotzsky's Deli
City of Tyler, AZ
Certa Pro Painter
SC Medical Center
Certa Pro Painter
SCHEDULE 1.2.1
ASSETS AND LIABILITIES OF ENSTRUCTURE, INC.