Exhibit 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") shall be effective as of the
13th day of August, 2003, by and between those persons listed on Exhibit "A"
(each a "Seller" and collectively "Sellers"), and Secure Blue, Inc., a Nevada
corporation, having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Buyer").
WHEREAS, Sellers are, in the aggregate, the owner all of the issued and
outstanding capital stock of Red Hand Software Ltd., a UK corporation, (the
"Company"), as further described in Section 2.2 herein;
WHEREAS, pursuant to the terms and conditions set forth herein, Buyer desires to
purchase from Sellers, and Sellers desire to sell to Buyer, all of the issued
and outstanding capital stock of the Company with the understanding that RedHand
Software Ltd has the right to withdraw from all obligations set out herein
subject to its full and final due diligence on Secure Blue Inc.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
SALE AND TRANSFER OF SHARES; CLOSING
1.1 Sale and Purchase of Company Common Shares. Upon the terms and
subject to the conditions of this Agreement and on the basis of the
representations, warranties and covenants contained herein, at the Closing, each
Seller shall sell to Buyer the number of shares (the "Company Common Shares") of
the Company common stock, par value 1.00 GBP per share, (the "Company Common
Stock") set forth next to such Seller's name on Exhibit "A" annexed hereto,
which Company Common Shares in the aggregate represent all of the issued and
outstanding shares of capital stock of the Company, free and clear of all Liens,
and Buyer shall purchase all such Company Shares.
1.2 Payment of Purchase Price for Company Common Shares. Subject
to the terms and conditions of this Agreement, and in reliance upon the
representations and warranties and covenants contained herein, at the Closing,
in consideration for the Company Shares, Buyer shall issue to Sellers such
number of shares (the "Buyer Common Shares") of Buyer's common stock, $0.001 par
value per share (the "Buyer Common Stock") as set forth on Exhibit "A", which
Buyer Common Shares shall be allocated among each Seller as set forth on Exhibit
"A" annexed hereto. The total of the Buyer's Common Shares issued to the Sellers
at the Closing Date will be Fourteen Million (14,000,000) Shares. Although the
officers and directors of the Company shall immediately take over the day-to-day
operations of the Buyer, the 14,000,000 shares the Buyer's stock and the stock
of Red Hand tendered by the shareholders of the Company shall remain in escrow
until the Release Date. The Release Date shall be defined as the later of:
1. The company filing with the SEC the required Form 8k,
including the consolidated audit of the company and secure blue according to US
GAAP.
Upon the Release Date, the exchange of shares shall be consummated and
the escrow shall terminate. Notwithstanding the foregoing, the Release Date may
be accelerated by the mutual consent of the parties hereto.
1.3 Closing. The closing (the "Closing") shall take place at the
offices of Buyer at 10:00 a.m. local time, on a date, not more than ten (10)
days after all conditions to Closing have been satisfied or waived. The Closing,
and all transactions to occur at the Closing, shall be deemed to have taken
place at, and shall be effective as of, the close of business on the "Closing
Date".
ARTICLE II
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
Each Seller, other than the ▇▇▇▇▇▇▇▇▇▇ Trust, severally, makes the
following representations and warranties to Buyer as of the date hereof and as
of the Closing Date, unless a different date is specifically provided herein.
2.1 Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the United Kingdom with
full corporate power and authority to carry on its business as it is now being
conducted and proposed to be conducted, and to own, and operate its business and
assets. The Company is duly qualified, licensed or admitted to do business and
in good standing in the jurisdictions in which the conduct of its business, the
ownership, operation of its properties and assets, or the transactions
contemplated by this Agreement, require it to be so qualified, licensed or
admitted. Included in the Company's. Schedules are complete and correct copies
of the articles of incorporation, and bylaws of the Company 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 the Company's articles of incorporation or bylaws. The Company has
taken all actions required by law, its articles of incorporation, or otherwise
to authorize the execution and delivery of this Agreement. The Company has full
power, authority, and legal right and has taken all action required by law, its
articles of incorporation, and otherwise to consummate the transactions herein
contemplated.
2.2 Subsidiaries. Each Subsidiary, if any, is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has full corporate power and authority to
carry on its business as it is now being conducted and to own, operate and lease
its businesses and assets. Each Subsidiary is duly qualified, licensed or
admitted to do business and is in good standing in those jurisdictions in which
the ownership, operation of such Subsidiary's businesses and assets, the conduct
or nature of its business, or the consummation of the transactions contemplated
herein makes such qualification, licensing or admission necessary. All of the
outstanding shares of capital stock of each Subsidiary have been duly authorized
and validly issued, are fully paid and non-assessable, and are owned,
beneficially and of record, by the Company or a Subsidiary wholly owned by the
Company free and clear of all Liens and there are no outstanding Options with
respect to any Subsidiary.
2.3 Capitalization. The total authorized capital stock of the
Company consists of 6,000 shares of common stock, par value 1.00 GBP per share,
of which 1,800 shares are issued and outstanding,
2.4 Options and Rights. There are no outstanding subscriptions,
options, warrants, rights, securities, contracts, commitments, understandings or
arrangements under which the Company is bound or obligated to issue any
additional shares of its capital stock or rights to purchase shares of its
capital stock (collectively, "Options"). There are no agreements, arrangements
or understandings between any Seller, the Company and any other Person regarding
the Company Shares (or the transfer, disposition, holding or voting thereof).
2.5 Financial Statements. The audited balance sheets as of August
30, 2002 and related statements of profit and loss for the year ended August 30,
2002 (the "Financial Statements") of the Company fairly present the consolidated
financial position of such Subsidiaries as at the dates and for the periods
indicated. The books and records, financial and otherwise, of the Company are in
all material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
It is understood that within sixty (60) days from the date of Closing, the
Company will provide the Buyer with audited financial statement according to US
General Accounting Procedures, as required by the regulations issued by the
Securities and Exchange Commission, and shall file the applicable Form 8k as
required by such regulations.
2.6 Absence of Changes. Since August 30, 2002, the Company has
conducted its business only in the Ordinary Course of Business and there has not
been: (a) any Material Adverse Change; (b) any material damage, destruction or
loss, whether covered by insurance or not, with regard to the Company's
properties and business; (c) any amendment or change in the Company's authorized
or issued capital stock, or Charter Documents or bylaws; (d) any declaration,
setting aside or payment of any dividend or distribution (whether in cash, stock
or property) in respect of, the capital stock of the Company, any purchase,
retirement, redemption or other acquisition of, any grant of any stock option,
warrant or other right to purchase shares of, or the grant of any registration
rights with respect to, the capital stock of the Company; (e) any cancellation
of, or agreement to cancel any indebtedness or obligation owing to the Company;
(f) any amendment, modification or termination of any existing Permits or
Contracts, or entering into any new Contract or plan relating to any salary,
bonus, insurance, pension, health or other employee welfare or benefit plan for
or with any directors, officers, employees or consultants of the Company; (g)
any entry into any material Contract by the Company not in the Ordinary Course
of Business, including, without limitation, relating to any borrowing, capital
expenditure or the sale or purchase of any property, rights, or assets or any
options or similar agreements with respect to the foregoing; (h) any disposition
by the Company of any material asset; (i) any adverse change in any Contract or
relationship with any customer or supplier, the sales patterns, pricing
policies, accounts receivable or accounts payable relating to the Company; (j)
any write-down of the value of any inventory of the Company, or write-off, as
uncollectible, of any notes, trade accounts or other receivables; or (k) any
change by the Company in accounting methods or principles.
2.7 Consents; Contracts. No consent of any party to any Contract
or from any Authority is required in connection with the execution, delivery or
performance of this Agreement, or the consummation of the transactions
contemplated hereby, except for such consents that are obtained, in form and
substance reasonably acceptable to Buyer, and delivered to Buyer at the Closing.
Each material Contract to which the Company is a party is in full force and
effect and is valid and enforceable in accordance with its terms. The Company
has performed in all material respects all obligations required to be performed
by it and (i) is not in default in any respect under or in breach of, and (ii)
is not in receipt of any claim of default or breach under any material Contract.
No event has occurred which with the passage of time or the giving of notice or
both would result in a default, breach or event of non-compliance under any
material Contract to which the Company is subject (including without limitation
all performance bonds, warranty obligations or otherwise). The Company does not
have any present expectation or intention of not fully performing all such
obligations. Set forth in the Company Schedules is a description of every
contract, agreement, or arrangement between the Company 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 the Company to own
beneficially, 5% or more of the issued and outstanding common stock of the
Company, 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.
Except as disclosed in the Company Schedules or otherwise disclosed herein, no
officer, director, or 5% shareholder of the Company has, or has had since
inception of the Company any known interest, direct or indirect, in any
transaction with the Company which was material to the business of the Company.
There are no commitments by the Company, whether written or oral, to lend any
funds, or to borrow any money from, or enter into any other transaction with,
any such affiliated person.
2.8 Litigation. There is no claim pending threatened against,
relating to or affecting the Company or any of the assets or businesses of the
Company nor is there any Order outstanding against the Company or any of the
assets or properties of the Company.
2.9 Compliance with Regulations and Orders; Permits; Affiliations.
The Company is presently complying with all applicable Regulations and Orders of
Authorities in respect of its operations, businesses, equipment, practices, real
property, plants, structures and other properties, and all other aspects of its
business and operations. The Company has all permits, licenses, provider
numbers, orders, franchises, registrations and approvals (collectively,
"Permits") required for the Company to conduct its business as presently
conducted. Each such Permit is valid and in full force and effect and there is
no basis for believing that such Permit will not be renewable upon expiration.
2.10 No Violation; Consents and Approvals. The execution and
delivery by any Seller of this Agreement, the Ancillary Documents and the
fulfillment of and compliance with the respective terms hereof and thereof do
not and will not, (a) conflict with or result in a breach of the terms,
conditions or provisions of, (b) constitute a default or event of default under
(with due notice, lapse of time or both), (c) result in the creation of any Lien
upon the capital stock or assets of the Company pursuant to, (d) give any third
party the right to accelerate any obligation under, (e) result in a violation
of, or (f) require any authorization, consent, approval, exemption or other
action by or notice to any Authority or other third party (including, without
limitation, any creditor, customer or supplier) pursuant to, the Charter
Documents of the Company or any Regulation, Order or Contract to which the
Company is subject. The board of directors of the Company has authorized the
execution and delivery of this Agreement by the Company, and has approved this
Agreement and the transactions contemplated hereby, and will recommend to the
Company's Shareholders that the Exchange be accepted by them.
2.11 Disclosure. Neither this Agreement nor any of the exhibits,
attachments, written statements, documents, certificates or other items prepared
by or at the instructions of Sellers, for or supplied to Buyer by or on behalf
of Sellers or the Company with respect to the transactions contemplated hereby
contains any untrue statement of a material fact or omits a material fact
necessary to make each statement contained herein or therein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING EACH SELLER
Each Seller, other than the ▇▇▇▇▇▇▇▇▇▇ Trust, individually, and not
jointly and severally, makes the following representations and warranties to
Buyer as of the date hereof and as of the Closing Date, unless a different date
is specifically provided herein.
3.1 Authorization. Such Seller that is a natural person has full
legal right, power and capacity to enter into this Agreement and all other
agreements, documents, instruments and certificates contemplated herein or
related hereto (the "Ancillary Documents") and perform his or her obligations
hereunder and there under. Such Seller that is not a natural person is duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of organization and has all requisite power and authority to
execute and deliver this Agreement and the Ancillary Documents and perform its
obligations hereunder and there under. Upon execution and delivery of this
Agreement and the Ancillary Documents by the parties hereto and thereto, this
Agreement and each of the Ancillary Documents shall constitute the legal, valid
and binding obligation of such Seller, enforceable against him, her or it in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditor rights generally and by general equitable
principles.
3.2 Title. Such Seller (a) is the sole record and beneficial
owner of the Company Common Shares set forth next to such Seller on Exhibit "A"
annexed hereto, free and clear of all Liens, save as disclosed in this Agreement
and (b) has sole managerial and dispositive authority with respect to such
Company Common Shares. All proxies granted with respect to such Seller's Company
Common Shares have been validly revoked. Upon delivery to such Seller by Buyer
of the Purchase Price at the Closing, such Seller will convey, and Buyer will
own and hold, good and marketable title to the Company Common Shares, free and
clear of any and all Liens or contractual restrictions or limitations
whatsoever.
3.3 Authorization. Such Seller has complied with all applicable
Regulations and Orders in connection with the execution, delivery and
performance of this Agreement, the Ancillary Documents and the transactions
contemplated hereby and thereby. Such Seller is not required to submit any
notice, report, or other filing with any governmental authority in connection
with such Seller's execution or delivery of this Agreement, the Ancillary
Documents or the consummation of the transactions contemplated hereby and
thereby. No authorization, consent, approval, exemption or notice is required to
be obtained by such Seller in connection with the execution, delivery, and
performance of this Agreement, the Ancillary Documents and the transactions
contemplated hereby and thereby.
3.4 Brokerage. Such Seller has not employed any broker, finder,
advisor, consultant or other intermediary in connection with this Agreement or
the transactions contemplated by this Agreement who is or might be entitled to
any fee, commission or other compensation from the Company or from Buyer or its
Affiliates with exception to the European Launch Pad contract already agreed by
the company, upon or as a result of the execution of this Agreement or the
consummation of the transactions contemplated hereby.
3.5 Purchase Entirely for Own Account. The Buyer's Common Shares
to be issued to such Seller in accordance with this Agreement will be acquired
for investment for such Seller's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that such
Seller has no present intention of selling, granting any participation in, or
otherwise distributing the same.
3.6 Disclosure of Information. Such Seller believes he, she or it
has received all the information such Seller considers necessary or appropriate
for deciding whether to purchase the Buyer's Common Shares. Such Seller further
represents that he, she or it has had an opportunity to ask questions of and
receive answers from Buyer regarding the terms and conditions of the
transactions contemplated by this Agreement.
3.7 Restricted Securities. Such Seller understands that the
Buyer Common Shares constitutes "restricted securities" under the federal
securities laws inasmuch as they are being acquired from Buyer in a transaction
not involving a public offering and that under such laws and applicable
regulations such securities may not be resold without registration under the
Securities Act of 1933, as amended (the "Act"), except in certain limited
circumstances. Such Seller understands that the certificates evidencing the
Buyer Common Shares shall bear an appropriate restrictive legend. With respect
to Buyer Common Shares issued in reliance on the exemption from registration
under Regulation S promulgated under the Act, Buyer shall refuse to register any
transfer of the Buyer Common Shares not made in accordance with the provisions
of Regulation S, pursuant to registration under the Act, or pursuant to an
available exemption from registration; unless foreign law prevents Buyer from
refusing to register securities transfers, which Buyer shall implement other
reasonable procedures to prevent any transfer not made in accordance with the
provisions of Regulation S.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Seller as of the date hereof and
as of the Closing Date, unless a different date is specifically provided herein
as follows:
4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida with full
corporate power and authority to carry on its business as it is now being
conducted and to own, operate and lease its properties and assets.
4.2 Authorization. Buyer has full corporate power and authority
to enter into this Agreement and the Ancillary Documents to which it is a party
and to carry out the transactions contemplated hereby and thereby. The Board of
Directors of Buyer has duly authorized the execution, delivery and performance
of this Agreement, the Ancillary Documents to which it is a party and the
transactions contemplated hereby and thereby, and no other corporate proceedings
on its part are necessary to authorize this Agreement, such Ancillary Documents
and the transactions contemplated hereby and thereby. Upon execution and
delivery of this Agreement and the Ancillary Documents by the parties hereto and
thereto, this Agreement and the Ancillary Documents to which Buyer is a party
shall constitute the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors rights
generally and by general equitable principles.
4.3 No Violation. The execution, delivery and performance by Buyer
of this Agreement and the Ancillary Documents to which it is a party, and the
fulfillment of and compliance with the respective terms hereof and thereof by
Buyer, do not and will not (a) conflict with or result in a material breach of
the terms, conditions or provisions of, (b) result in a violation of, or (c)
require any authorization, consent, approval, exemption or other action by or
notice to any Authority pursuant to, the certificate of incorporation or by-laws
of Buyer, or any Regulation to which Buyer is subject, or any material Contract
or Order to which Buyer or its properties are subject. Buyer will comply with
all applicable Regulations and Orders in connection with its execution, delivery
and performance of this Agreement and the transactions contemplated hereby.
Included in the Buyer Schedules are complete and correct copies of the
certificate of incorporation and bylaws of the Buyer 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 the Buyer's certificate of incorporation or bylaws. Buyer has taken
all action required by law, its certificate of incorporation, its bylaws, or
otherwise to authorize the execution and delivery of this Agreement, and Buyer
has full power, authority, and legal right and has taken all action required by
law, its certificate of incorporation, bylaws, or otherwise to consummate the
transactions herein contemplated.
4.4 Governmental Authorities. Buyer has complied in all material
respects with all applicable Regulations in connection with its execution,
delivery and performance of this Agreement, the Ancillary Documents to which it
is a party and the transactions contemplated hereby and thereby. Buyer is not
required to submit any notice, report, or other filing with any governmental
authority in connection with its execution or delivery of this Agreement, the
Ancillary Documents to which it is a party or the consummation of the
transactions contemplated hereby and thereby. No authorization, consent,
approval, exemption or notice is required to be obtained by Buyer in connection
with the execution, delivery, and performance of this Agreement, the Ancillary
Documents to which it is a party and the transactions contemplated hereby and
thereby.
4.5 Brokerage. Buyer has not employed any broker, finder,
advisor, consultant or other intermediary in connection with this Agreement or
the transactions contemplated by this Agreement who is or might be entitled to
any fee, commission or other compensation from Buyer, upon or as a result of the
execution of this Agreement or the consummation of the transactions contemplated
hereby. Buyer shall be solely responsible for any and all fees, commissions or
other compensation to any such broker employed by Buyer.
4.6 Capitalization. The total authorized capital stock of Buyer
consists of 50,000,000 shares of common stock, par value $0.001 per share, of
which 9,240,000 shares are issued and outstanding, and no shares of preferred
stock, are issued and outstanding.
4.7 Options and Rights. There are no outstanding subscriptions,
options, warrants, rights, securities, contracts, commitments, understandings or
arrangements under which the Company is bound or obligated to issue any
additional shares of its capital stock or rights to purchase shares of its
capital stock.
4.8 Litigation. There is no Claim pending or threatened against,
relating to or affecting Buyer or any of the assets or businesses of Buyer nor
is there any Order outstanding against Buyer or any of the assets or properties
of Buyer.
4.9 Disclosure. Neither this Agreement or any of the Ancillary
Documents to which Buyer is a party nor any exhibits, attachments, written
statements, documents, certificates or other items prepared for or supplied to
Sellers by Buyer with respect to the transactions contemplated hereby contains
any untrue statement of a material fact or omits a material fact necessary to
make each statement contained herein or therein not misleading.
4.10 Securities Filings; Financial Statements.
(a) Buyer is required to file forms or reports with the Securities and
Exchange Commission and is in compliance with all such requirements.
(b) Included in the Buyer Schedules are (i) the audited balance sheets
of Buyer as of March 31, 2003, and the related audited statements of operations,
stockholders' equity and cash flows for the fiscal year ended March 31, 2003,
with respect thereto, all as set forth in the SEC Reports.
(c) All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved. The Buyer's balance sheets present fairly as of their
respective dates the financial condition of Buyer. As of the date of such
balance sheets, except as and to the extent reflected or reserved against
therein, Buyer had no liabilities or obligations (absolute or contingent) which
should be reflected in the balance sheets 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 Buyer, in accordance with generally accepted accounting principles.
The statements of operations, stockholders' equity and cash flows reflect fairly
the information required to be set forth therein by generally accepted
accounting principles.
(d) Buyer 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) Buyer has timely filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the date
hereof. 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 buyer are in all
material aspects complete and correct and have been maintained in accordance
with good business and accounting practices.
(g) All of Buyer's assets are reflected on its financial statements,
and, except as set forth in the Buyer Schedules or the financial statements of
Buyer or the notes thereto, Buyer has no material liabilities, direct or
indirect, matured or unmatured, contingent or otherwise.
4.11 Material Transactions or Affiliations. Except as disclosed
herein and in the Buyer Schedules, there exists no contract, agreement or
arrangement between Buyer 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 Buyer to own beneficially, 5% or more of the issued
and outstanding common stock of Buyer, 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
Buyer has, or has had since inception of Buyer has any known interest, direct or
indirect, in any such transaction with Buyer, which was material to the business
of Buyer. Buyer has no commitment, whether written or oral, to lend any funds
to, borrow any money from, or enter into any other transaction with, any such
affiliated person.
4.12 Bank Accounts; Power of Attorney. Set forth in Schedule 2.21
is a true and complete list of (a) all accounts with banks, money market mutual
funds or securities or other financial institutions maintained by Buyer within
the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of Buyer, (b) all safe deposit boxes and
other similar custodial arrangements maintained by buyer within the past twelve
(12) months, and (c) the names of all persons holding powers of attorney from
Buyer or who are otherwise authorized to act on behalf of Buyer with respect to
any matter, other than its officers and directors, and a summary of the terms of
such powers or authorizations.
ARTICLE V
COVENANTS OF SELLER
From the date hereof until the Closing Date, except as otherwise
consented to or approved by Buyer in writing, Sellers shall cause the Company
to:
5.1 Regular Course of Business. Operate its business diligently
and in good faith and in the Ordinary Course of Business, including, without
limitation: (i) maintaining all of its respective properties in good order and
condition; (ii) maintaining (except for expiration due to lapse of time) all
Contracts in effect without change except as expressly provided herein; (iii)
complying with the provisions of all Regulations and Orders applicable to the
Company and the conduct of its respective business; (iv) maintaining insurance
and reinsurance coverage as in effect on the date hereof up to the Closing Date;
(v) preserving the business of the Company intact; (vi) using its best efforts
to keep available for the Company and Buyer, the services of the employees of
the Company; and (vii) preserving the good will of clients, suppliers and others
having business relations with the Company.
5.2 Certain Restrictions. Refrain from: (i) changing or amending
the Charter Documents of the Company; (ii) merging with or into or consolidating
with any other Person; (iii) acquiring all or substantially all of the stock or
the assets of any Person or changing the character of its business; (iv) issuing
or selling any shares of the Company's capital stock of any class or any
securities convertible into, or options, warrants to purchase or rights to
subscribe to, any shares of such capital stock; (v) permitting any liens upon,
pledging or otherwise encumbering any shares of such capital stock or any of
their respective assets or properties; (vi) declaring, paying or setting aside
for payment any dividend or other distribution to any of the stockholders of the
Company in respect of their respective capital stock or otherwise; (vii)
directly or indirectly, redeeming, retiring, purchasing or otherwise acquiring
any shares of their respective capital stock or any of their respective
indebtedness for money borrowed in advance of any scheduled repayment date;
(viii) making any capital expenditures, or commitments with respect thereto;
(ix) incurring, assuming or guaranteeing any indebtedness, obligations or
liabilities or entering into any transactions or making any commitment to do any
of the foregoing except in the Ordinary Course of Business or for purposes of
consummation of the transactions contemplated by this Agreement and in any case
only after consultation with Buyer; (x) canceling, releasing, waiving or
compromising any debt, Claim or right in their respective favor; (xi) altering
the rate or basis of compensation of any of their respective officers,
directors, employees or consultants; and (xii) taking any action or failing to
take any action as a result of which any of the other changes or events listed
in Section 2.6 hereof is likely to occur.
5.3 Full Access and Disclosure.
(a) Afford to Buyer and its counsel, accountants and
other authorized representatives reasonable access during business hours to the
Company's facilities, properties, books and records in order that Buyer may have
full opportunity to make such reasonable investigations as it shall desire to
make of the affairs of the Company's, including financial statement and other
audits at the sole cost and expense of Buyer; and each Seller shall cause the
Company's officers, employees and auditors to furnish on a timely basis such
additional financial and operating data and other information as Buyer shall
from time to time reasonably request including, without limitation, any internal
control recommendations applicable to the Company made by the Company's
independent auditors in connection with any examination of the Company's
financial statements and books and records.
(b) Promptly notify Buyer in writing if any Seller
becomes aware of any fact or condition that causes or constitutes a breach of
any representation or warranty of any Seller as of the date of this Agreement,
or if any Seller becomes aware of the occurrence after the date of this
Agreement of any fact or condition that would (except as expressly contemplated
by this Agreement) cause or constitute a breach of any such representation or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition.
5.4 Fulfillment of Conditions Precedent. Refrain from taking any
action which, if taken on or prior to the Closing Date, would constitute a
breach of this Agreement. Each Seller shall use his, her or its best efforts to
obtain at such Seller's expense, on or prior to the Closing Date, all such
waivers, permits, consents, approvals or other authorizations from third parties
and Authorities, and to do all things as may be necessary or desirable in
connection with the transactions contemplated by this Agreement in order to
fully and expeditiously consummate the transactions contemplated by this
Agreement.
5.5 Tax Returns. File all Tax Returns and reports with respect to
Taxes which are required to be filed for Tax periods ending on or before the
Closing Date (a "Pre-Closing Tax Return"), and the Company shall pay all Taxes
due in respect of such Pre-Closing Tax Returns to the appropriate Taxing
Authority; and the Company shall pay all costs associated with the preparation
thereof.
5.6 No Solicitation or Negotiation. Refrain from, and cause the
Company's directors, officers, employees, representatives, agents, advisors,
accountants and attorneys to refrain from, initiating, soliciting or
encouraging, directly or indirectly, any inquiries or the making of any proposal
with respect to, or engage in negotiations concerning, or provide any
confidential information or data to any Person with respect to, or have any
discussions with any Persons relating to, any acquisition, business combination
or purchase of all or any significant asset of, or any equity interest in, the
Company, or otherwise facilitate any effort or attempt to do or seek any of the
foregoing, and shall immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing.
5.7 Public Announcements. Refrain from disclosing any of the
terms of this Agreement to any third party (other than Buyer's advisors and the
Sellers' advisors) without the other party's prior written consent unless
required by any applicable law. The form, content and timing of any and all
press releases, public announcements or publicity statements (except for any
disclosures under or pursuant to Federal or State securities laws in connection
with the registration of Buyer's securities or otherwise) with respect to this
Agreement or the transactions contemplated hereby shall be subject to the prior
approval of the Buyer and the Sellers' representative.
5.8 Termination of Agreements. Terminate or cause to be
terminated, on or prior to the Closing Date, any stockholders' agreements,
voting agreements or voting trusts to which any Seller or the Company is a
party.
5.9 Anti-Dilution.
(a) The number of shares of Secure Blue, Inc., common stock issuable
upon exchange pursuant to Section 3.01 shall be appropriately adjusted to take
into account any other stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the Buyer common stock which may occur
(i) between the date of the execution of this Agreement and the Closing Date, as
to the Initial Shares, and (ii) between the date of the execution of this
Agreement and the release date, as to the Additional Shares.
ARTICLE VI
COVENANTS OF BUYER
6.1 Certain Restrictions. From the date hereof until the Closing
Date, except as otherwise consented to or approved by Sellers owning a majority
of the Company Common Shares, Buyer shall refrain from issuing or selling any
shares of the Company's or any other member of the Company's capital stock of
any class or any securities convertible into, or options, warrants to purchase
or rights to subscribe to, any shares of such capital stock.
6.2 Full Access and Disclosure. Buyer hereby covenants and agrees
with Sellers that prior to the Closing or the termination of this Agreement,
Buyer shall afford to Sellers, and their counsel, accountants and other
authorized representatives an opportunity to make such reasonable investigations
as they shall desire to make of the business of Buyer; and Buyer shall cause its
officers, employees and auditors to furnish such additional financial and
operating data and other information as Sellers shall from time to time
reasonably request. From time to time prior to the Closing Date, Buyer shall
promptly supplement or amend information previously delivered to Sellers with
respect to any matter hereafter arising which, if existing or occurring at the
date of this Agreement, would have been required to be set forth herein or
disclosed.
ARTICLE VII
PRE-CLOSING COVENANTS
7.1 Further Assurances. Subject to the terms and conditions of
this Agreement, each of the parties hereto shall use his, her or its best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable Regulations to
consummate and make effective the transactions contemplated by this Agreement.
7.2 Consents. Without limiting the generality of Section 7.1,
each of the parties hereto shall use his or its best efforts to obtain all
Permits of all Persons and Authorities necessary, proper or advisable in
connection with the consummation of the transactions contemplated by this
Agreement prior to the Closing Date.
7.3 No Termination of Any Seller's Obligations by Subsequent
Incapacity. Each Seller specifically agrees that the obligations of such Seller
hereunder shall not be terminated by the death or incapacity of such Seller.
7.4 Confidentiality. From the date hereof to and including the
Closing Date, Buyer, on the one hand, and each Seller, on behalf of himself,
herself or itself and the Company, on the other hand, shall cause its
principals, officers and other personnel and authorized representatives to hold
in confidence, and not disclose to any other Person without the other party's
prior consent, all written and oral information furnished or disclosed by or
received from such party or its officers, directors, employees, agents, counsel
and auditors in connection with the transactions contemplated hereby except as
may be contemplated therein.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF BUYER
Each and every obligation of Buyer under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions, unless waived in writing by Buyer:
8.1 Representations and Warranties; Covenants and Agreements. The
representations and warranties of each Seller contained in Article II and
Article III and elsewhere in this Agreement and all information contained in any
exhibit, certificate, schedule or attachment hereto or in any writing delivered
by, or on behalf of, each Seller to Buyer, shall be true and correct when made
and shall be true and correct in all material respects on the Closing Date as
though then made, except as expressly provided herein. Each Seller shall have
performed and complied with all agreements, covenants and conditions and shall
have made all deliveries required by this Agreement to be performed, delivered
and complied with by him, her or it prior to the Closing Date or at the Closing.
8.2 No Injunction. No preliminary or permanent injunction or
other Order, decree or ruling issued by any Authority, or any Regulation
promulgated or enacted by any Authority shall be in effect, which would prevent
the consummation of the transactions contemplated hereby.
8.3 Third Party Consents. Sellers shall have delivered to Buyer,
in form and substance reasonably acceptable to Buyer, all consents, approvals,
waivers or other authorizations reasonably requested by Buyer with respect to
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
8.4 No Material Adverse Change. There shall have been no Material
Adverse Change to the Company, since the date of this Agreement. Buyer shall
have received a certificate (which shall be addressed to Buyer), dated the
Closing Date, from a representative of Sellers certifying to the foregoing.
8.5 Due Diligence. Buyer shall have completed its due diligence
investigation with respect to the Company including, but not limited to,
business, financial, legal, operational, customer, worker's compensation,
employee (both internal and external) and real estate due diligence, with
results satisfactory to Buyer in its sole discretion.
8.6 Seller's Closing Documents. Seller shall have delivered to
Buyer executed originals of each of the Sellers' closing documents.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF SELLERS
Each and every obligation of each Seller under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions unless waived in writing by Sellers:
9.1 Representations and Warranties; Performance. The
representations and warranties of Buyer contained in Article IV and elsewhere in
this Agreement and all information contained in any exhibit, schedule or
attachment hereto, or in any writing delivered by Buyer to Sellers, shall be
true and correct in all material respects when made and shall be true and
correct in all material respects on the Closing Date as though then made, except
as expressly provided herein. Buyer shall have performed and complied in all
material respects with all agreements, covenants and conditions required by this
Agreement to be performed and complied with by them prior to the Closing Date.
9.2 No Injunction. No preliminary or permanent injunction or
other Order, decree or ruling issued by any Authority, or any Regulation
promulgated or enacted by any Authority shall be in effect, which would prevent
the consummation of the transactions contemplated hereby.
9.3 Purchase Price. Each Seller shall have received the purchase
price required to be delivered at Closing and to which such Seller is entitled
pursuant to Section 1.2 hereof.
9.4 Buyer's Closing Documents. Buyer shall have delivered to
Sellers executed originals of each of the other Buyer's Closing Documents.
9.5 14f Filing. Buyer shall have filed a Notification Statement
to its Shareholders (Form 14f) with the Securities and Exchange Commission, and
have mailed such notice to its shareholders.
ARTICLE X
TERMINATION OF AGREEMENT
10.1 Methods of Termination. This Agreement shall terminate:
(a) by mutual consent of Buyer and Sellers holding a
majority of the Company Common Shares; or
(b) on October 10, 2003
10.2 Procedure Upon Termination. In the event this Agreement is
terminated as provided in Section 10.1:
(a) each party shall redeliver all documents and other
material of any other party relating to the transactions contemplated hereby,
whether obtained before or after the execution hereof, to the party furnishing
the same;
(b) all information received by any party hereto of the
other party or the Company (other than information which is a matter of public
knowledge or which has heretofore been or is hereafter published in any
publication for public distribution or filed as public information with any
governmental authority) shall not at any time be used for the advantage of, or
disclosed to third parties by, such party to the detriment of the party
furnishing such information; and
(c) no party hereto shall have any further liability or
obligation to any other party under or in connection with this Agreement.
ARTICLE XI
CLOSING DELIVERIES
11.1 Deliveries by Sellers. At the Closing, in addition to any
other documents or agreements required under this Agreement, Sellers shall
deliver to Buyer the following:
(a) Certificates, in genuine and unaltered form,
representing the Company Common Shares, free and clear of all Liens, duly
endorsed in blank or accompanied by duly executed stock powers endorsed in
blank, for transfer to Buyer;
(b) Evidence, in form satisfactory to Buyer, that all
consents and approvals referred in Section 8.3 have been obtained;
(c) Such other agreements, documents and instruments
reasonably requested by Buyer to effectuate the transactions contemplated in
this Agreement.
11.2 Deliveries by Buyer. At the Closing, Buyer shall deliver to
each Seller in accordance with Exhibit "A" annexed hereto, the following:
(a) Certificates evidencing the Buyer Common Shares to
each Seller in accordance with Exhibit "A" annexed hereto;
(b) The Articles of Incorporation of Buyer, as certified
by the Nevada Secretary of State;
(c) A Certificate of Good Standing for Buyer from the
State of Nevada; and
(d) Such other agreements, documents and instruments
reasonably requested by Sellers to effectuate the transactions contemplated in
this Agreement.
ARTICLE XII
POST-CLOSING COVENANTS
12.1 Further Assurances. If at any time after the Closing Date,
Buyer, on the one hand, or any Seller, on the other hand, shall consider or be
advised that any further agreements, instruments, documents, deeds, papers,
assignments or assurances in law or in any other things are necessary, desirable
or proper to vest, perfect or confirm, of record or otherwise, in such party,
the title to any property or rights of the other acquired or to be acquired by
reason of, or as a result of, this Agreement or any of the transactions
contemplated herein, the other party agrees that it or they shall execute and
deliver all such proper agreements, instruments, documents, deeds, papers,
assignments and assurances in law and do all things necessary, desirable or
proper to vest, perfect or confirm title to such property or rights in such
party and otherwise to carry out the purpose of this Agreement.
12.2 Audited Financial Statements. Each Seller shall use his, her
or its best efforts to cause to be completed and delivered to Buyer audited
financial statements of the Company and each of the Company's Subsidiaries,
reasonably necessary for Buyer to meet its reporting obligations under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
ARTICLE XIII
SURVIVAL OF TERMS; INDEMNIFICATION
13.1 Survival; Knowledge. All of the terms and conditions of this
Agreement, together with the representations, warranties and covenants contained
herein or in any instrument or document delivered or to be delivered pursuant to
this Agreement, shall survive the execution of this Agreement and the Closing
notwithstanding any investigation heretofore or hereafter made by or on behalf
of any party hereto; provided, however, that (i) the agreements and covenants
set forth in this Agreement shall survive and continue until all obligations set
forth therein shall have been performed and satisfied; and (ii) all
representations and warranties shall survive and continue until eighteen (18)
months from the Closing Date (the "Anniversary Date"), except for
representations and warranties for which a claim for indemnification hereunder
(an "Indemnification Claim") shall be pending as of the Anniversary Date, in
which event such representations and warranties shall survive with respect to
such Indemnification Claim until the final disposition thereof.
13.2 Indemnification by Seller. Each Seller, other than the
▇▇▇▇▇▇▇▇▇▇ Trust, shall, severally, indemnify, defend and hold harmless Buyer
and each of the officers, directors, employees, shareholders, attorneys,
accountants, partners, representatives, agents, successors and assigns of each
of the foregoing (each an "Buyer Indemnified Party" and collectively, the "Buyer
Indemnified Parties"), at all times after the date of this Agreement, against
and in respect of any and all Claims (including, without limitation, the fees
and expenses of counsel) resulting from, or in respect of any misrepresentation,
breach of warranty, or nonfulfillment of any covenant or other obligation on the
part of such Seller under this Agreement, any document relating thereto or
contained in any schedule (without giving effect to any amendment or supplement
thereto) or exhibit to this Agreement or from any misrepresentation in or
omission from any certificate, schedule, other agreement or instrument by
Sellers hereunder.
A. Indemnification by Buyer. Buyer shall indemnify, defend
and hold harmless each Seller and each of the representatives,
agents, successors and assigns of such Seller (each a
"Seller Indemnified Party" and collectively, the "Seller
Indemnified Parties"), at all times after the date of this
Agreement, against and in respect of any and all Claims
(including, without limitation, the fees and expenses of
counsel) resulting from, or in respect of, any
misrepresentation, breach of warranty, or nonfulfillment of
any covenant or other obligation on the part of Buyer under
this Agreement, any document relating thereto or contained
in any schedule (without giving effect to any amendment or
supplement thereto) or exhibit to this Agreement or from any
misrepresentation in or omission from any certificate,
schedule, other agreement or instrument by Buyer hereunder.
13.4 Third Party Claims.
(a) Except as otherwise provided in this Agreement, the
following procedures shall be applicable with respect to indemnification for
third party Claims. Promptly after receipt by the party seeking indemnification
hereunder (hereinafter referred to as the "Indemnitee") of notice of the
commencement of any (a) Tax audit or proceeding for the assessment of Tax by any
taxing authority or any other proceeding likely to result in the imposition of a
Tax liability or obligation, or (b) any action or the assertion of any Claim,
liability or obligation by a third party (whether by legal process or
otherwise), against which Claim, liability or obligation the other party to this
Agreement (hereinafter the "Indemnitor") is, or may be, required under this
Agreement to indemnify such Indemnitee, the Indemnitee will, if a Claim thereon
is to be, or may be, made against the Indemnitor, notify the Indemnitor in
writing of the commencement or assertion thereof and give the Indemnitor a copy
of such Claim, process and all legal pleadings. The Indemnitor shall have the
right to participate in the defense of such action with counsel of reputable
standing. The Indemnitor shall have the right to assume the defense of such
action unless such action (i) may result in injunctions or other equitable
remedies in respect of the Indemnitee or its business; (ii) may result in
liabilities which, taken with other then existing Claims under this Article
XIII, would not be fully indemnified hereunder; or (iii) may have an adverse
impact on the business or financial condition of the Indemnitee after the
Closing Date (including an effect on the Tax liabilities, earnings or ongoing
business relationships of the Indemnitee). The Indemnitor and the Indemnitee
shall cooperate in the defense of such Claims. In the case that the Indemnitor
shall assume or participate in the defense of such audit, assessment or other
proceeding as provided herein, the Indemnitee shall make available to the
Indemnitor all relevant records and take such other action and sign such
documents as are necessary to defend such audit, assessment or other proceeding
in a timely manner.
(b) Upon judgment, determination, settlement or
compromise of any third party Claim, the Indemnitor shall pay promptly on behalf
of the Indemnitee, and/or to the Indemnitee in reimbursement of any amount
theretofore required to be paid by it, the amount so determined by judgment,
determination, settlement or compromise, unless in the case of a judgment an
appeal is made from the judgment, plus all other Claims of the Indemnitee with
respect thereto (including legal fees and expenses). If the Indemnitor desires
to appeal from an adverse judgment, then the Indemnitor shall post and pay the
cost of the security or bond to stay execution of the judgment pending appeal.
Upon the payment in full by the Indemnitor of such amounts, the Indemnitor shall
succeed to the rights of such Indemnitee, to the extent not waived in
settlement, against the third party who made such third party Claim.
(c) Prior to paying or settling any Claim against which
an Indemnitor is, or may be, obligated under this Agreement to indemnify an
Indemnitee, the Indemnitee must first supply the Indemnitor with a copy of a
final court judgment or decree holding the Indemnitee liable on such claim or
failing such judgment or decree, and must first receive the written approval of
the terms and conditions of such settlement from the Indemnitor. An Indemnitor
shall have the right to settle any Claim against it or as to which it has
assumed the defense, subject to the prior written approval of the Indemnitee,
which approval shall not be unreasonably withheld provided that such settlement
involves only the payment of a fixed sum which the Indemnitor is obligated to
pay and does not include any admission of liability or other such similar
admissions by or related to Indemnitee with respect to such Claim.
(d) An Indemnitee shall have the right to employ its own
counsel in any case, but the fees and expenses of such counsel shall be at the
expense of the Indemnitee unless: (i) the employment of such counsel shall have
been authorized in writing by the Indemnitor in connection with the defense of
such action or Claim; (ii) the Indemnitor shall not have employed, or is
prohibited under this Section 13.4 from employing, counsel in the defense of
such action or Claim; or (iii) such Indemnitee shall have reasonably concluded
that there may be defenses available to it which are contrary to, or
inconsistent with, those available to the Indemnitor, in any of which events
such fees and expenses of not more than one additional counsel for the
indemnified parties shall be borne by the Indemnitor.
13.5 Limitation on Indemnification.
(a) None of the Buyer Indemnified Parties shall assert
any Indemnification Claim hereunder against any Seller until such time as, and
solely to the extent that, the aggregate of all such claims which the Buyer
Indemnified Parties may have against Sellers shall exceed One Hundred Thousand
Dollars ($100,000) (the "Seller's Indemnification Threshold"), and the maximum
amount that each Seller shall be liable under this Article XIII shall be limited
to the value of the purchase price such Seller received pursuant to Section 1.2.
As to each Seller, the aggregate of all Claims against such Seller shall be
limited to recourse against the Buyer Common Shares issued to such Seller
pursuant to Section 1.2, and the proceeds from the sale, transfer or
hypothecation of such Buyer Common Shares.
(b) None of the Seller Indemnified Parties shall assert
any Indemnification Claim hereunder against Buyer until such time as, and solely
to the extent that, the aggregate of all such claims which the Seller
Indemnified Parties may have against Buyer shall exceed One Hundred Thousand
Dollars ($100,000) (the "Buyer Indemnification Threshold").
ARTICLE XIV
DEFINITIONS; INTERPRETATIONS
14.1 Headings. The article, section and other headings contained in
this Agreement are for reference purposes only and do not affect in any way the
meaning or interpretation of this Agreement (or any provision hereof).
14.2 Pronouns and Plurals. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular forms of nouns, pronouns, and verbs
include the plural and vice versa.
14.3 Construction. The parties acknowledge that each party has
reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement.
14.4 Certain Definitions. Capitalized terms not defined in this
Agreement, shall have the following respective meanings:
"Affiliate" means, with regard to any Person, (a) any Person,
directly or indirectly, controlled by, under common control of, or controlling
such Person, (b) any Person, directly or indirectly, in which such Person holds,
of record or beneficially, five percent or more of the equity or voting
securities, (c) any Person that holds, of record or beneficially, five percent
or more of the equity or voting securities of such Person, (d) any Person that,
through Contract, relationship or otherwise, exerts a substantial influence on
the management of such Person's affairs, (e) any Person that, through Contract,
relationship or otherwise, is influenced substantially in the management of
their affairs by such Person, or (f) any director, officer, partner or
individual holding a similar position in respect of such Person.
"Authority" means any international, federal, state local or
municipal governmental, regulatory or administrative body, agency, department,
division, subdivision, office, arbitrator or other authority, any court or
judicial authority, or any public, private or industry regulatory agency or
authority.
"Claim" means any action, claim, obligation, liability,
damage, loss, deficiency, cost, expense, commitment, lawsuit, demand, suit,
inquiry, hearing, investigation, notice of a violation, litigation, proceeding,
arbitration, or other dispute, whether civil, criminal, administrative or
otherwise, whether pursuant to contractual obligations or otherwise.
"Contract" means any agreement, contract, commitment,
instrument or other binding arrangement or understanding, whether written or
oral.
"Debt" means, for any Person as of any date, the aggregate
outstanding and unpaid balance (including but not limited to unpaid principal,
accrued interest, costs and expenses) of all indebtedness of such Person which
bears interest that would be included in Interest Expense of such Person for a
fiscal period that includes such date.
"GAAP" means United States generally accepted accounting
principles, applied on a consistent basis.
"Lien" means any security interest, lien, mortgage, pledge,
hypothecation, encumbrance, Claim, easement, restriction or interest of another
Person of any kind or nature.
"Material Adverse Change" means any development or change,
which has, had or would have a Material Adverse Effect.
"Material Adverse Effect" means, as to any Person, any
circumstances, events, state of facts or matters which has had, or might
reasonably be expected to have, a material adverse effect on (i) such Person's
business, operations, properties, assets, condition (financial or otherwise),
results, plans, strategies or prospects, or (ii) the ability of such Person to
consummate any of the transactions contemplated by this Agreement or any of the
related agreements, instruments or documents or (iii) the benefits contemplated
to be conferred on such Person by this Agreement or any of the related
agreements, instruments or documents.
"Order" means any decree, consent decree, judgment, award,
order, injunction or consent of or by an Authority.
"Ordinary Course of Business" shall mean an action taken by a
Person only if (i) such action is consistent with the past practices of such
Person and is taken in the ordinary course of the normal day-to-day operations
of such Person, (ii) such action is not required to be authorized by the board
of directors of such Person (or by any Person or group of Persons exercising
similar authority), and (iii) such action is similar in nature and magnitude to
actions customarily taken, without any authorization by the board of directors
(or by any Person or group of Persons exercising similar authority), in the
ordinary course of the normal day-to-day operations of other Persons that are in
the same line of business as such Person.
"Person" means any individual, corporation, partnership,
limited partnership, limited liability partnership or company, joint venture,
company, syndicate, union, unincorporated organization, association, trust,
entity, Authority or natural person.
"Regulation" means any law, statute, rule, regulation,
ordinance, requirement, announcement or other binding action of or by an
Authority.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by a written agreement
signed by the Companies, Buyer and Seller.
15.2 Entire Agreement. This Agreement, including the schedules
and exhibits hereto and the documents, annexes, attachments, certificates and
instruments referred to herein and therein, embodies the entire agreement and
understanding of the parties hereto in respect of the agreements and
transactions contemplated by this Agreement and supersedes all prior agreements,
representations, warranties, promises, covenants, arrangements, communications
and understandings, oral or written, express or implied, between the parties
with respect to such transactions. There are no agreements, representations,
warranties, promises, covenants, arrangements or understandings between the
parties with respect to such transactions, other than those expressly set forth
or referred to herein.
15.3 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or mailed, first class
certified mail with postage paid or by overnight receipted courier service:
If to any Seller: The address as set forth on Exhibit "A"
If to Buyer: Secure Blue, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. 10014
or to such other person or address as such party shall furnish by notice to all
other parties in writing.
15.4 Exhibits and Schedules. The Exhibits and Schedules referred
to in this Agreement are attached hereto and incorporated herein by this
reference. Disclosure of a specific item in any one Schedule shall be deemed
restricted only to the Section of this Agreement to which such disclosure
relates, except where, and to the extent that, there is an explicit
cross-reference in such Schedule to another Schedule.
15.5 Waiver of Compliance; Consents. Any failure of any party
hereto to comply with any obligation, covenant, agreement or condition herein
may be waived in writing by the other parties hereto, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing.
15.6 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties.
15.7 Governing Law. The Agreement shall be governed by the
internal laws of the State of Florida as to all matters, including but not
limited to matters of validity, construction, effect and performance.
15.8 Jurisdiction of Disputes; Waiver of Jury Trial. In the event
any party to this Agreement commences any litigation, proceeding or other legal
action in connection with or relating to this Agreement or any matters described
or contemplated herein, with respect to any of the matters described or
contemplated herein or therein, the parties to this Agreement hereby (a) agree
under all circumstances absolutely and irrevocably to institute any litigation,
proceeding or other legal action in a court of competent jurisdiction located
within the City and County of Broward, State of Florida, whether a state or
federal court; (b) agree that in the event of any such litigation, proceeding or
action, such parties will consent and submit to personal jurisdiction in any
such court described in clause (a) of this Section and to service of process
upon them in accordance with the rules and statutes governing service of process
(it being understood that nothing in this Section shall be deemed to prevent any
party from seeking to remove any action to a federal court in Broward County,
Florida); (c) agree to waive to the full extent permitted by law any objection
that they may now or hereafter have to the venue of any such litigation,
proceeding or action in any such court or that any such litigation, proceeding
or action was brought in an inconvenient forum; (d) agree as an alternative
method of service to service of process in any legal proceeding by mailing of
copies thereof to such party at its address set forth here in for communications
to such party; (e) agree that any service made as provided herein shall be
effective and binding service in every respect; and (f) agree that nothing
herein shall affect the rights of any party to effect service of process in any
other manner permitted by Law. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY
JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY AND
ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.
15.9 Injunctive Relief. The parties hereto agree that in the
event of a breach of any provision of this Agreement, the aggrieved party or
parties may be without an adequate remedy at law. The parties therefore agree
that in the event of a breach of any provision of this Agreement, the aggrieved
party or parties may elect to institute and prosecute proceedings in any court
of competent jurisdiction to enforce specific performance or to enjoin the
continuing breach of such provision, as well as to obtain damages for breach of
this Agreement. By seeking or obtaining any such relief, the aggrieved party
shall not be precluded from seeking or obtaining any other relief to which it
may be entitled.
15.10 Dealings in Good Faith; Best Efforts. Each party hereto
agrees to act in good faith with respect to the other party in exercising its
rights and discharging its obligations under this Agreement. Each party further
agrees to use its best efforts to ensure that the purposes of this Agreement are
realized and to take all further steps as are reasonably necessary to implement
the provisions of this Agreement. Each party agrees to execute, deliver and file
any document or instrument necessary or advisable to implement or satisfy the
express provisions of this Agreement.
15.11 Binding Effect. This Agreement shall not be construed so as
to confer any right or benefit upon any Person other than the signatories to
this Agreement and each of their respective successors and permitted assigns.
15.12 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any party hereto, upon any breach or default
of any other party under this Agreement, shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party hereto of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
15.13 Severability. Unless otherwise provided herein, if any
provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
15.14 Expenses. All fees, costs and expenses (including, without
limitation, legal, auditing and accounting fees, costs and expenses) incurred in
connection with considering, pursuing, negotiating, documenting or consummating
this Agreement and the transactions contemplated hereby shall be borne and paid
solely by the party incurring such fees, costs and expenses.
15.15 Attorneys' Fees. If any party to this Agreement seeks to
enforce the terms and provisions of this Agreement, then the prevailing party in
such action shall be entitled to recover from the losing party all costs in
connection with such action, including without limitation reasonable attorneys'
fees, expenses and costs incurred with respect to trials, appeals and
collection.
15.16 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement the date first hereinabove set forth.
SELLERS:
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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By: /s/ ▇▇▇ ▇▇▇▇▇
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By: /s/ Trustees
Trustees for the ▇▇▇▇▇▇▇▇▇▇ Settlement
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
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BUYER:
Secure Blue, Inc
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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