EXHIBIT 2.16
STOCK ACQUISITION AGREEMENT
BY AND AMONG
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
AS "STOCKHOLDER",
M L C ENTERPRISES, INC.
AS THE "COMPANY"
AND
INDUSTRIAL DATA SYSTEMS, CORP.
AS THE "ACQUIRING CORPORATION"
EFFECTIVE DATE: NOVEMBER 1, 1998
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STOCK ACQUISITION AGREEMENT
INDEX
Page
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS
1.2 OTHER DEFINED TERMS
1.3 REFERENCES
ARTICLE II
EFFECT OF THE AGREEMENT
2.1 EXCHANGE OF STOCK
2.2 EFFECT
ARTICLE III
CLOSING
3.1 CLOSING
3.2 DOCUMENTS TO BE DELIVERED
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 ORGANIZATION OF THE COMPANY
4.2 AUTHORIZATION
4.3 SUBSIDIARIES
4.4 ABSENCE OF CERTAIN CHANGES OR EVENTS
4.5 TITLE TO ASSETS, ETC.
4.6 CONDITION OF TANGIBLE ASSETS
4.7 CONTRACTS AND COMMITMENTS
4.8 NO CONFLICT OR VIOLATION
4.9 CONSENTS AND APPROVALS
4.10 FINANCIAL STATEMENTS
4.11 LITIGATION
4.12 LABOR MATTERS
4.13 LIABILITIES
4.14 COMPLIANCE WITH LAW
4.15 NO BROKERS
4.16 NO OTHER AGREEMENTS TO SELL THE ASSETS OR THE COMPANY
4.17 PROPRIETARY RIGHTS
4.18 EMPLOYEE AGREEMENTS AND BENEFITS
4.19 TRANSACTIONS WITH CERTAIN PERSONS
4.20 TAX MATTERS
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4.21 SEVERANCE ARRANGEMENTS
4.22 INSURANCE
4.23 ACCOUNTS RECEIVABLE
4.24 INVENTORIES
4.25 PURCHASE COMMITMENTS AND OUTSTANDING BID
4.26 PAYMENTS
4.27 CUSTOMERS AND SUPPLIERS
4.28 ENVIRONMENTAL AND SAFETY COMPLIANCE
4.29 MATERIAL MISSTATEMENTS OR OMISSIONS
4.30 BUSINESS OF THE COMPANY
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
5.1 ORGANIZATION OF STOCKHOLDERS
5.2 AUTHORIZATION
5.3 CONTRACTS AND COMMITMENTS
5.4 CONSENTS AND APPROVALS
5.5 NO BROKERS
5.6 NO OTHER AGREEMENTS TO SELL THE ASSETS
OR THE COMPANY
5.7 TRANSACTIONS WITH CERTAIN PERSONS
5.8 MATERIAL MISSTATEMENTS OR OMISSIONS
5.9 NO KNOWLEDGE OF INDEMNIFICATION EVENTS
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ACQUIRING CORPORATION
6.1 ORGANIZATION OF ACQUIRING CORPORATION
6.2 AUTHORIZATION
6.3 CONSENTS AND APPROVALS
6.4 NO BROKERS
6.5 NO CONFLICT OR VIOLATION
6.6 LITIGATION
6.7 COMPLIANCE WITH LAW
6.8 MATERIAL MISSTATEMENTS OR OMISSIONS
ARTICLE VII
ACTIONS BY STOCKHOLDER, THE COMPANY
ACQUIRING CORPORATION PRIOR TO THE CLOSING
5.1 MAINTENANCE OF BUSINESS
5.2 CERTAIN PROHIBITED TRANSACTIONS
5.3 INVESTIGATION BY ACQUIRING CORPORATION
5.4 CONSENTS AND BEST EFFORTS
5.5 NOTIFICATION OF CERTAIN MATTERS
5.6 NO MERGERS, CONSOLIDATIONS, SALE OF STOCK, ETC.
5.7 MAINTENANCE OF SHAREHOLDER EQUITY
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ARTICLE VIII
CONDITIONS TO STOCKHOLDERS OBLIGATIONS
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS
8.2 CONSENTS
8.3 NO GOVERNMENTAL PROCEEDING OR LITIGATION
8.4 CORPORATE DOCUMENTS
ARTICLE IX
CONDITIONS TO ACQUIRING CORPORATIONS OBLIGATION
9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS
9.2 CONSENTS
9.3 NO GOVERNMENTAL PROCEEDING OR LITIGATION
9.4 CERTIFICATE
9.5 CORPORATE DOCUMENTS
9.6 INVESTIGATION
9.7 EMPLOYMENT AGREEMENTS
9.8 ACCOUNTING MATTERS
9.9 COMPLETION OF BUY OUT
ARTICLE X
ACTIONS BY STOCKHOLDER, THE COMPANY AND ACQUIRING
CORPORATION AFTER THE CLOSING
10.1 FURTHER ASSURANCES
ARTICLE XI
INDEMNIFICATION
11.1 SURVIVAL OF REPRESENTATIONS, ETC.
11.2 INDEMNIFICATION
11.3 INDEMNIFICATION PROCEDURES
11.4 NO RIGHT OF CONTRIBUTION
ARTICLE XII
SECURITIES LAWS
10.1 ACQUISITION OF INVESTMENT
ARTICLE XIII
STOCKHOLDER'S OPTION TO RESELL
TO ACQUIRING CORPORATION
10.1 SALE OPTION OF STOCKHOLDER
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ARTICLE XIV
MISCELLANEOUS
14.1 TERMINATION
14.2 ASSIGNMENT
14.3 NOTICES
14.4 CHOICE OF LAW
14.5 ENTIRE AGREEMENT: AMENDMENTS AND WAIVERS
14.6 COUNTERPARTS
14.7 INVALIDITY
14.8 HEADING
14.9 EXPENSES
14.10 PUBLICITY
14.11 CONFIDENTIAL INFORMATION
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STOCK ACQUISITION AGREEMENT
This Agreement is made and entered into effective the 25 day of
November, 1998 by and between INDUSTRIAL DATA SYSTEMS CORP., a Nevada
Corporation, having its principal place of business in Texas located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter called the
"Acquiring Corporation"); ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (hereinafter called "Stockholder");
and M L C ENTERPRISES, INC., (hereinafter called the "Company").
RECITALS
A) M L C ENTERPRISES, INC., is a Texas Corporation having its
principal place of business located at 10913 Metronome, Houston, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇. The Company is engaged in the business of manufacture,
distribution and sale of oil and gas related products and industrial fire
suppression systems.
B) The Company is authorized to issue 100,000 shares of common
stock. There are 1000 shares of common stock issued and outstanding.
C) The Acquiring Corporation is authorized to issue 75,000,000
shares of common stock of which 13,023,718 shares are issued and outstanding.
D) The Stockholder has agreed to accept voting stock of the
Acquiring Corporation in exchange for all of his shares of common stock of the
Company.
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. As used herein, the terms below shall have the
following meanings:
"BALANCE SHEET" shall mean the Consolidated Balance Sheet of the Company
as of September 30, 1998 together with the notes thereon prepared in accordance
with Generally Accepted Accounting Principles.
"BALANCE SHEET DATE" shall mean September 30, 1998.
"CLOSING BALANCE SHEET" shall mean the Consolidated Balance Sheet of the
Company as of the end of the month immediately
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preceding the Closing Date together with notes thereon prepared in accordance
with Generally Accepted Accounting Principles.
"CLOSING DATE" shall mean the close of business on November 15, 1998, or
such other date as may be mutually agreed upon in writing by Stockholders and
Acquiring Corporation.
"CLOSING FINANCIAL STATEMENTS" shall mean the Closing Balance Sheet, and
Consolidated Statements of Income, Cash Flows and Stockholders Equity for the
Company for the period since the end of the Company's most recent fiscal year
and ending as of the date of the Closing Balance Sheet, together with the notes
thereon.
"CODE" shall mean the Internal Revenue Code of 1986, as may be amended
from time to time.
"CONTRACTS" shall mean any of the agreements, contracts, commitments or
other documents described in Section 4.7 (a)-(g).
"DISCLOSURE SCHEDULE" means a schedule executed and delivered by
Stockholder or the Company to Acquiring Corporation on or prior to the date
hereof which sets forth exceptions to the representations and warranties
contained in Article IV and V hereof and certain other information called for by
Articles IV and V hereof and other provisions of this Agreement.
"ENCUMBRANCES" shall mean any claim, lien, pledge, option, charge,
easement, security interest, right-of-way, encumbrance or other rights of third
parties.
"ENVIRONMENTAL LAWS" shall mean all federal, state, and local laws,
statutes, ordinances, regulations, and rules, which (i) regulate or relate to
the protection or clean-up of the environment, the use, treatment, storage,
transportation or disposal of hazardous, toxic or otherwise dangerous
substances, wastes or materials (whether gas, liquid or solid) or the
preservation or protection of waterways, groundwater, drinking water, air,
wildlife, plants, or other natural resources or (ii) impose liability with
respect to any of the foregoing, including without limitation the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq.), Resource Conservation &
Recovery Act 42 U.S.C. Section 6901 et seq.) ("RCRA"), Safe Drinking Water Act
(21 U.S.C. Section 349, 42 U.S.C. Section 201, 300f), Toxic Substances Control
Act (15 U.S.C. Section 2601 et seq.), Clean Water Act (42 U.S.C. Section 7401 et
seq.) Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. Section 9601 et seq.) ("CERCLA"), or any similar federal, state or local
law of similar effect, each as amended.
"FACILITIES" shall mean the plant, offices, manufacturing facilities,
stores, warehouses, administration buildings, etc. and
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all other real property and related facilities which are owned or leased by the
Company.
"FINANCIAL STATEMENTS" shall mean the Balance Sheet, and Consolidated
Statements of Income, Cash Flows and Stockholders Equity for the Company for the
period since the end of the Company's most recent fiscal year and ending as of
the Balance Sheet Date, together with the notes thereon, previously delivered to
Acquiring Corporation and attached hereto as Schedule 1.1.
"FIXTURES AND EQUIPMENT" shall mean all of the furniture, fixtures,
furnishings machinery and equipment owned or leased by the Company and located
in, at or upon the Facilities as of the Balance Sheet Date plus all additions,
replacements or deletions since the Balance Sheet Date in the ordinary course of
the Company's business.
"HAZARDOUS SUBSTANCES" shall mean any quantity of asbestos in any form,
urea formaldehyde, PCB's, radon gas, crude oil or any fraction thereof, all
forms of natural gas, petroleum products or by-products, any radioactive
substance, any toxic, infectious, reactive, corrosive, ignitable or flammable
chemical or chemical compound and any other hazardous substance, material or
waste (as defined in or for purposes of any Environmental Law), whether solid,
liquid or gas.
"REPRESENTATIVE" shall mean any officer, director, principal, attorney,
agent, employee or other representative.
"SUBSIDIARIES" shall mean all corporations, partnerships, joint ventures
or other entities in which the Company either owns capital stock or is a partner
or is in some other manner affiliated through an investment or participation in
the equity of such entity.
1.2 Other Defined Terms. The following terms shall have the meanings
defined for such terms in the Sections set forth below:
Term Section
Action 4.11
Assets 4.5
Closing 3.1
Damages 11.2
ERISA 4.18
Handled 4.28
Personnel 4.4
Plans 4.18
Proprietary Rights 4.17
Tax 4.20
Taxpayers 4.20
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1.3 References. As used in this Agreement, unless expressly stated
otherwise, references to "knowledge", "known", to the knowledge of", or other
similar phrases, mean, with respect to any person, the actual knowledge or
reason to have actual knowledge after reasonable independent investigation at
the time of execution of this agreement and at the closing.
ARTICLE II
EFFECT OF THE AGREEMENT
2.1 EXCHANGE OF STOCK. In accordance with the terms and conditions
herein, Stockholder shall at closing, exchange all of his shares of the Company,
representing all of the issued and outstanding shares of the Company for a total
of 50,000 shares of common voting stock in the Acquiring Corporation, par value
One Cent ($0.01) per share.
2.2 EFFECT. The transaction contemplated under the terms of this
Agreement is intended to qualify as a tax free exchange under Section
368(a)(1)(b) of the Internal Revenue Code. Each party to this agreement has
relied solely on the opinion of its counsel as to the qualification of the
transaction for a tax free exchange pursuant to IRC 368 (a)(l)(b) Although
Acquiring Corporation in no manner guarantees that the transaction will be
non-taxable, Acquiring Corporation will make all reasonable efforts necessary to
assist Company and Stockholder in making the transaction non-taxable.
ARTICLE III
CLOSING
3.1 CLOSING. The closing of the transactions contemplated herein
(the "Closing") shall be held at 10:00 a.m. local time on the Closing Date at
the Houston office of Acquiring Corporation's counsel unless the parties hereto
otherwise agree.
3.2 DOCUMENTS TO BE DELIVERED. To effect the exchange referred to in
Section 2.1 and the delivery of the consideration described therein,
Stockholders and Acquiring Corporation shall, on the Closing Date, deliver the
following:
(a) Stockholders shall deliver to Acquiring Corporation certificate(s)
evidencing all of the issued and outstanding shares of the Company, free and
clear of any encumbrances of any nature, duly endorsed for transfer to Acquiring
Corporation.
(b) Acquiring Corporation shall deliver to Stockholder a copy of
instructions sent to its transfer agent directing the issuance to
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Stockholder of fifty thousand (50,000) of the Acquiring Corporation's fully paid
non-assessable common voting shares.
(c) All instruments and documents executed and delivered to Acquiring
Corporation pursuant hereto shall be in form and substance, and shall be
executed in a manner reasonably satisfactory to Acquiring Corporation. All
instruments and documents executed and delivered to Stockholder pursuant hereto
shall be in form and substance, and shall be executed in a manner reasonably
satisfactory to Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Except as set forth in the Disclosure Schedules, the Company and
Stockholder hereby represent and warrant to Acquiring Corporation as follows:
4.1 ORGANIZATION OF THE COMPANY.
(a) The Company is duly organized, validly existing and in good standing
under the laws of the State of Texas, has full corporate power and authority to
conduct its business as it is presently being conducted and to own and lease its
properties and assets. The Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is necessary under the applicable law as a result of the conduct
of its business or the ownership of its properties and where the failure to be
so qualified would have a material adverse effect on the business or financial
condition of the Company. Each jurisdiction, if any, in which the Company is
qualified to do business as a foreign corporation is listed on the Disclosure
Schedule. The Company has duly filed assumed names of HOUSTON SUPPLY
INTERNATIONAL; MARINE & INDUSTRIAL FIRE & SAFETY; VALVCO INDUSTRIAL SUPPLY CO.
and MARINE & INDUSTRIAL SUPPLY CO.
(b) The Company has authorized 100,000 shares of Common Voting Stock.
The only shares of the Company which have been issued and the current
Stockholders of the Company are as follows:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1000 shares
(c) The company has one Director whose names is as follows:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(d) The officers of the Company are as follows:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - PRESIDENT, TREASURER
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - VICE PRESIDENT, SECRETARY
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4.2 AUTHORIZATION. The Company has all necessary corporate power and
authority to enter into this agreement and has taken all corporate action
necessary to consummate the transactions contemplated hereby and to perform its
obligations hereunder. This Agreement has been duly executed and delivered by
the Company and is a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
4.3 SUBSIDIARIES. The Company has no Subsidiaries.
4.4 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the Balance Sheet
Date, there has not been any:
(a) change in the Company's condition (financial or otherwise), assets,
liabilities, working capital, reserves, earnings, business or prospects, except
for changes contemplated hereby or changes which have not, individually or in
the aggregate, been materially adverse;
(b) (i) except for normal periodic increases in the ordinary course of
business consistent with past practice, increase in the compensation payable or
to become payable by the Company to any of its officers, employees or agents
(collectively, "Personnel") whose total compensation for services rendered to
the Company is currently at an annual rate of more than $20,000.00, (ii) bonus,
incentive compensation, service award or other like benefit granted, made or
accrued, contingently or otherwise, for or to the credit of any of the
Personnel, (iii) employee welfare, pension, retirement, profit-sharing or
similar payment or arrangement made or agreed to by the Company for any
Personnel except pursuant to the existing plans and arrangements described in
the Disclosure Schedule or (iv) new employment agreement to which the Company is
a party;
(c) addition to or modification of the employee benefit plans,
arrangements or practices described in the Disclosure Schedule affecting
Personnel other than (i) contributions made for most recent year in accordance
with the normal practices of the Company or (ii) the extension of coverage to
other Personnel who became eligible after the Balance Sheet Date;
(d) sale, assignment or transfer of any of the assets of the Company,
material singularly or in the aggregate, other than in the ordinary course;
(e) cancellation of any indebtedness or waiver of any rights of
substantial value to the Company, whether or not in the ordinary course of
business;
(f) amendment, cancellation or termination of any Contract, license or
other instrument material to the Company;
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(g) capital expenditure or the execution of any lease, except building
lease or any incurring of liability therefor by Company, involving payments in
excess of $5,000.00 in the aggregate;
(h) failure to repay any material obligation of the Company, except in
the ordinary course of business or where such failure would not have a material
adverse effect on the business or financial condition of the Company;
(i) failure to operate the business of the Company in the ordinary
course so as to use reasonable efforts to preserve the business intact, to keep
available to Acquiring Corporation the services of the Personnel, and to
preserve for Acquiring Corporation the goodwill of the Company's suppliers,
customers and others having business relations with it except where such failure
would not have a material adverse effect on the business or financial condition
of the Company;
(j) change in accounting methods or practices by the Company affecting
its assets, liabilities or business;
(k) revaluation by the Company of any of its assets, including without
limitation writing off notes or accounts receivable;
(l) damage, destruction or loss (whether or not covered by insurance)
adversely affecting the properties, business or prospects of the Company;
(m) mortgage, pledge or other encumbrances of any assets of the Company,
material singularly or in the aggregate, except purchase money mortgages arising
in the ordinary course of business;
(n) declaration, setting aside or payment of dividends or distributions
in respect of any capital stock of the Company or any redemption, purchase or
other acquisition of any of the Company's equity securities;
(o) issuance by the Company of, or commitment of the Company to issue,
any shares of stock or other equity securities or obligations or securities
convertible into or exchangeable for shares of stock or other equity securities;
(p) indebtedness incurred by the Company for borrowed money or
commitment to borrow money entered into by the Company, or loans made or agreed
to be made by the Company;
(q) liabilities involving $5,000.00, or more except in the ordinary
course of business and consistent with past practice, or
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increase or change in any assumptions underlying or methods of calculating any
bad debt, contingency or other reserves;
(r) payment, discharge or satisfaction of any liabilities other than the
payment, discharge or satisfaction (i) in the ordinary course of business and
consistent with past practice of liabilities reflected or reserved against in
the Balance Sheet or incurred in the ordinary course of business and consistent
with past practice since the Balance Sheet Date and (ii) of other liabilities
involving $5,000.00 or less singularly and $10,000.00 or less in the aggregate;
(s) payment to Stockholder by the Company;
(t) agreement by the Company to do any of the foregoing; or
(u) other event or condition of any character which in any one case or
in the aggregate has materially adversely affected, or event or condition known
to the Company (other than matters of general public knowledge relating to
general economic conditions or the Company's industry as a whole) which it is
reasonable to expect will, in any one case or in the aggregate, materially
adversely affect in the future, the condition (financial or otherwise), assets,
liabilities, working capital, reserves, earnings, business or prospects of the
Company.
4.5 TITLE TO ASSETS, ETC. The Company has good and marketable fee
simple title to the assets reflected on the Balance Sheet or acquired in the
ordinary course of business since the Balance Sheet Date (the "Assets"). None
of the Assets are subject to any Encumbrances, except for minor liens which in
the aggregate are not substantial in amount, do not materially detract from the
value of the property or assets subject thereto or interfere with the present
use and have not arisen other than in the ordinary course of business. The
Company has in all material respects performed all the obligations required to
be performed by it with respect to all Assets leased by it through the date
hereof, except where the failure to perform would not have a material adverse
effect on the business or financial condition of the Company. The Company
enjoys peaceful and undisturbed possession of all Facilities owned or leased by
it, and such Facilities are not subject to any Encumbrances, encroachments,
building or use restrictions, exceptions, reservations, or limitations which in
any material respect interfere with or impair the present and continued use
thereof in the usual and normal conduct of the business of the Company. There
are no pending or threatened condemnation proceedings relating to any of the
Facilities. The real property improvements (including leasehold improvements),
equipment and other tangible assets owned or used by the Company at the
Facilities are adequately insured and are structurally sound with no known
material defects. None of said improvements, equipment and other assets is
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subject to any commitment or other arrangement for their sale or use by any
affiliate of the Company or third parties. The Assets are valued at or below
actual cost less an adequate and proper depreciation charge. The Company has
not depreciated any of the Assets on an accelerated basis or in any other manner
inconsistent with applicable Internal Revenue Service guidelines, if any.
4.6 CONDITION OF TANGIBLE ASSETS. The Facilities and Fixtures and
Equipment are in good operating condition and repair (except for ordinary wear
and tear and any defect the cost of repairing which would not be material), are
sufficient for the operation of the Company's business as presently conducted
and are in conformity in all material respects with all applicable laws,
ordinances, orders, regulations and other requirements (including applicable
zoning, environmental, motor vehicle safety or standards, occupational safety
and health laws and regulations) relating thereto currently in effect, except
where the failure to conform would not have a material adverse effect on the
business or financial condition of the Company.
4.7 CONTRACTS AND COMMITMENTS. Except as listed in the Disclosure
Schedules 1.2, the Company is not a party to any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, or
letter of credit involving any obligation or liability on the part of the
Company of more than $10,000.00 and not cancelable (without liability) within 60
days;
(b) lease of real property;
(c) lease of personal property involving any annual expense in excess of
$10,000.00 and not cancelable (without liability) within 60 days;
(d) contracts and commitments not otherwise described above or listed in
the Disclosure Schedule (including purchase orders, franchise agreements and
undertakings or commitments to any governmental or regulatory authority)
relating to the business of the Company and otherwise materially affecting the
Company's business under contracts not in the ordinary course of business;
(e) material governmental or regulatory licenses or permits required to
conduct the business of the Company as presently conducted;
(f) contracts or agreements containing covenants limiting the freedom of
the Company to engage in any line of business or compete with any person; or
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(g) employment contracts, including without limitation, contracts to
employ executive officers and other contracts with officers or directors of the
Company.
The Company is not (and, to the best knowledge of the Company, no other
party is) in material breach or violation of, or default under any of the
Contracts or other instruments, obligations, evidences of indebtedness or
commitments described in (a)-(g) above, the breach or violation of which would
have a material adverse effect on the business or financial condition of the
Company.
4.8 NO CONFLICT OR VIOLATION. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
result in (a) a violation of or a conflict with any provision of the Certificate
of Incorporation or Bylaws of the Company, (b) a breach of, or a default under,
any term or provision of any contract, agreement, indebtedness, lease,
Encumbrance, commitment, license, franchise, permit, authorization or concession
to which the Company is a party or by which the Assets are bound, which breach
or default would have a material adverse effect on the business or financial
condition of the Company or its ability to consummate the transactions
contemplated hereby, (c) a violation by the Company of any statute, rule,
regulation, ordinance, code, order, judgment, writ, injunction, decree or award,
which violation would have a material adverse effect on the business or
financial condition of the Company or its ability to consummate the transactions
contemplated hereby, or (d) an imposition of any material Encumbrance,
restriction or charge on the business of the Company or on any of the Assets.
4.9 CONSENTS AND APPROVALS. No consent, approval or authorization
of, or declaration, filing or registration with, any governmental or regulatory
authority, or any other person or entity, is required to be made or obtained by
the Company in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby.
4.10 FINANCIAL STATEMENTS. Stockholder has heretofore delivered to
Acquiring Corporation the Financial Statements. Except as otherwise set forth
therein, the Financial Statements are complete, are in accordance with the books
and records of the Company, accurately reflect the assets, liabilities and
financial condition and results of operations indicated thereby in accordance
with Generally Accepted Accounting Principles consistently applied, and contain
and reflect all necessary adjustments for a fair representation of the Financial
Statements as of the date and for the period covered thereby.
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4.11 LITIGATION. There is no action, order, writ, injunction,
judgment or decree outstanding or claim, suit, litigation, proceeding, labor
dispute, arbitral action or investigation (collectively, "Actions") pending or,
to the knowledge of the Company, threatened or anticipated against, relating to
or affecting (i) the Company, (ii) any benefit plan for Personnel or any
fiduciary or administrator thereof or (iii) the transactions contemplated by
this Agreement. The Company is not in default with respect to any judgment,
order, writ, injunction or decree of any court or governmental agency, and there
are no unsatisfied judgments against the Company or the business or activities
of the Company. There is not a reasonable likelihood of an adverse determination
of any pending Actions which would, individually or in the aggregate, have a
material adverse effect on the business or financial condition of the Company.
4.12 LABOR MATTERS. The Company is not a party to any labor agreement
with respect to its employees with any labor organization, group or association.
The Company has not experienced any attempt by organized labor or its
representatives to make the Company conform to demands of organized labor
relating to its employees or to enter into a binding agreement with organized
labor that would cover the employees of the Company. The Company is in material
compliance with all applicable laws respecting employment practices, terms and
conditions of employment and wages and hours and is not engaged in any unfair
labor practice. There is no unfair labor practice charge or complaint against
the Company pending before the National Labor Relations Board or any other
governmental agency arising out of the Company's activities, and the Company has
no knowledge of any facts or information which would give rise thereto; there is
no labor strike or labor disturbance pending or threatened against the Company
nor is any grievance currently being asserted; and the Company has not
experienced a work stoppage or other labor difficulty.
4.13 LIABILITIES. The Company has no liabilities or obligations
(absolute, accrued, contingent or otherwise) except (i) liabilities which are
reflected and reserved on the Balance Sheet, (ii) liabilities incurred in the
ordinary course of business and consistent with past practice since the Balance
Sheet Date that individually or in the aggregate are not material, and (iii)
liabilities arising under Contracts, letters of credit, purchase orders,
licenses, permits, purchase agreements and other agreements, business
arrangements and commitments described in the Disclosure Schedule or which are
of the type described in Section 4.7 but which because of the dollar amount or
other qualifications are not required to be listed in the Disclosure Schedule.
4.14 COMPLIANCE WITH LAW. The Company and the conduct of its business
are in compliance with all applicable laws, statutes, ordinances and
regulations, whether federal, state or local, except
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where the failure to comply would not have a material adverse effect on the
business or financial condition of the Company. The Company has not received
any written notice to the effect that, or otherwise been advised that, it is not
in compliance with any of such statutes, regulations, orders, ordinances or
other laws where the failure to comply would have a material adverse effect on
the business or financial condition of the Company, and the Company has no
reason to anticipate that any presently existing circumstances are likely to
result in violations of any such regulations which would, in any one case or in
the aggregate, have a material adverse effect on the business or financial
condition of the Company.
4.15 NO BROKERS. Neither Stockholder, the Company or any affiliate of
the Company has entered into or will enter into any Contract, agreement,
arrangement or understanding with any person or firm which will result in the
obligation of Acquiring Corporation to pay any finder's fee, brokerage
commission or similar payment in connection with the transactions contemplated
hereby.
4.16 NO OTHER AGREEMENTS TO SELL THE ASSETS OR THE COMPANY. Neither
Stockholder nor the Company has any legal obligation, absolute or contingent, to
any other person or firm to sell the Assets, to sell any capital stock of the
Company or to effect any merger, consolidation or other reorganization of the
Company or to enter into any agreement with respect thereto.
4.17 PROPRIETARY RIGHTS. All of the Company's registrations of
trademarks and of other marks, trade names or other trade rights, and all
pending applications for any such registrations and all of the Company's patents
and copyrights and all pending applications therefor; all other trademarks and
other marks, trade names and other trade rights and all other trade secrets,
designs, plans, specifications and other proprietary rights, whether or not
registered (collectively, "Proprietary Rights") are listed in the Disclosure
Schedule 1.3. The Proprietary Rights listed in the Disclosure Schedule are in
all material respects all those used in the business of the Company. No person
has a right to receive a royalty or similar payment in respect of any
Proprietary Rights pursuant to any contractual arrangements entered into by the
Company, and no person otherwise has a right to receive a royalty or similar
payment in respect of any such Proprietary Rights. The Company has no licenses
granted by or to it or no other agreements to which it is a party, relating in
whole or in part to any of the Proprietary Rights. The Company's use of the
Proprietary Rights is not infringing upon or otherwise violating the rights of
any third party in or to such Proprietary Rights, and no proceedings have been
instituted against or notices received by the Company that are presently
outstanding alleging that the Company's use of its Proprietary Rights infringes
upon or otherwise violates any rights of a third party in or to such Proprietary
Rights.
17
4.18 EMPLOYEE AGREEMENTS AND BENEFITS.
(a) Except as set forth on the Disclosure Schedule 1.4, no employee of
the Company is a party to, participant in, or bound by, any collective
bargaining agreement, union contract or employment, bonus, deferred
compensation, insurance, pension, profit sharing, or other personnel
arrangement, any employee termination or severance arrangements, and the
employment by the Company of any person (whether or not there is a written
employment contract) can be terminated for any reason whatsoever not
inconsistent with current law, without penalty or liability of any kind other
than accrued vacation pay.
(b) The Company does not contribute to any multi-employer pension plan,
as defined in the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the Company is not subject to any claims, whether fixed or
contingent, for withdrawal liability relating to any such multi-employer plan.
(c) The Company has complied with all laws relating to the employment of
labor with respect to its employees, including any provisions thereof relating
to wages, hours, collective bargaining and the payment of social security and
similar taxes, and no person has asserted that the Company is liable for any
arrears of wages or any taxes or penalties for failure to comply with any of the
foregoing.
(d) The employee pension benefit plans and welfare benefit plans listed
in the Disclosure Schedule (collectively, the "Plans"), constitute all such
Plans in which any employees of the Company participate and have been operated
in all material respects in compliance with the Code and with ERISA since ERISA
became applicable with respect thereto. The Company shall make available to
Acquiring Corporation true and correct copies of all such Plans, trust
agreements with respect to such Plans, all determination letters with respect
thereto, insurance contracts, administrative servicing agreements and other
agreements relating to the Plans and the most recent annual reports filed with
the United States Department of Labor and/or the Internal Revenue Service by the
Company with respect thereto. None of the Plans nor any of their respective
related trusts have been terminated, and there has been no "reportable event",
as that term is defined in Section 4043 of ERISA, required to be reported since
the effective date of ERISA which has not been reported, and none of such Plans
nor their respective related trusts have incurred any "accumulated funding
deficiency", as such term is defined in Section 302 of ERISA (whether or not
waived), since the effective date of ERISA. The Plans are the only employee
benefit plans covering employees of the Company.
18
4.19 TRANSACTIONS WITH CERTAIN PERSONS. Neither any officer, director
or employee of the Company nor any member of any such person's immediate family
is presently a party to any material transaction with the Company relating to
the Company's business, including without limitation, any contract, agreement or
other arrangement (i) providing for the furnishing of material services by, (ii)
providing for the rental of material real or personal property from, or (iii)
otherwise requiring material payments to any such person or corporation,
partnership, trust or other entity in which any such person has a substantial
interest as a shareholder, officer, director, trustee or partner.
4.20 TAX MATTERS. The Company, any predecessor of the Company and all
members for income tax purposes of any affiliated group of corporations of which
the Company or any such predecessor corporation is or has been a member
(hereinafter referred to collectively as the "Taxpayers") have duly filed all
tax reports and returns required to be filed by them, including all federal,
state, local and foreign tax returns and reports. The Taxpayers have paid in
full all taxes required to be paid by such Taxpayers before such payment became
delinquent. The Company has made adequate provision, in conformity with
generally accepted accounting principles consistently applied, for the payment
of all taxes which may subsequently become due. All taxes which any Taxpayer
has been required to collect or withhold have been duly collected or withheld
and, to the extent required when due, have been or will be duly paid to the
proper taxing authority.
The consolidated federal income tax returns of the Company and the
federal income tax returns of each Subsidiary of the Company whose results of
operations are not consolidated in the federal income tax returns of the
Company, have been timely filed with the Internal Revenue Service for all
periods to and including those expressly set forth in the Disclosure Schedule,
and except to the extent shown therein, all deficiencies asserted as a result of
such examinations have been paid or finally settled, and no issue has been
raised by the Internal Revenue Service in any such examination which, by
application of similar principles, reasonably could be expected to result in a
proposed deficiency for any other period not so examined. There are no audits
known by the Company to be pending on the Company's tax returns, and there are
no claims which have been or may be asserted relating to any of the Company's
tax returns filed for any year which if determined adversely would result in the
assertion by any governmental agency of any deficiency. There have been no
waivers of statutes of limitations by the Company.
None of the Taxpayers have filed a statement under Section 341(f) of the
Code (or any comparable state income tax provision) consenting to have the
provisions of Section 341(f)(2) (collapsible corporations provisions) of the
Code (or any comparable state income
19
tax provision) apply to any disposition of any of the Company's assets or
property, no property of the Company is property which Acquiring Corporation or
the Company is or will be required to treat as owned by another person pursuant
to the provisions of Section 168(f) (safe harbor leasing provisions) of the
Code. The Company is not a party to any tax-sharing agreement or similar
arrangement with any other party.
For the purpose of this Agreement, any federal, state, local or foreign
income, sales, use, transfer, payroll, personal property, occupancy or other
tax, levy, impost, fee, imposition, assessment or similar charge, together with
any related addition to tax, interest or penalty thereon, is referred to as a
"tax."
4.21 SEVERANCE ARRANGEMENTS. The Company has not, except to the
extent that such arrangements have been made with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ in the
Employment Agreement attached hereto as Schedule 1.5, entered into any severance
or similar arrangement in respect of any present or former Personnel that will
result in any obligation (absolute or contingent) of Acquiring Corporation or
the Company to make any payment to any present or former Personnel following
termination of employment.
4.22 INSURANCE. The Disclosure Schedule 1.6 contains a complete and
accurate list of all policies or binders of fire, liability, title, worker's
compensation and other forms of insurance maintained by the Company on its
business, property or Personnel. All of such policies are sufficient for
compliance with all requirements of law and of all Contracts to which the
Company is a party. The Company is not in default under any of such policies or
binders, and the Company has not failed to give any notice or to present any
claim under any such policy or binder in a due and timely fashion. There are no
facts upon which an insurer might be justified in reducing coverage or
increasing premiums on existing policies or binders. There are no outstanding
unpaid claims under any such policies or binders. Such policies and binders
provide sufficient coverage for the risks insured against, are in full force and
effect on the date hereof and shall be kept in full force and effect by the
Company through the Closing Date.
4.23 ACCOUNTS RECEIVABLE. The accounts receivable reflected in the
Balance Sheet Schedule 1.7, and all accounts receivable ensuing since the
Balance Sheet Date, represent bona fide claims against debtors for sales,
services performed or other charges arising on or before the date hereof, and
all the goods delivered and services performed which gave rise to said accounts
were delivered or performed in accordance with the applicable orders, Contracts
or customer requirements. Said accounts receivable are subject to no defenses,
counterclaims or rights of offset and are fully collectible in the ordinary
course of business without cost to Acquiring Corporation in collection efforts
therefor except, in the
20
case of accounts receivable shown on the Balance Sheet, to the extent of the
appropriate reserves set forth on the Balance Sheet, and, in the case of
accounts receivable arising since the Balance Sheet Date, to a reasonable
allowance for bad debts which does not reflect a rate of bad debts more than
percent (4%) higher than that reflected by the reserve for bad debts on the
Balance Sheet.
4.24 INVENTORIES. The values at which inventories are shown on the
Balance Sheet have been determined in accordance with the normal valuation
policy of the Company, consistently applied and in accordance with Company's
historical accounting method. The inventories (and items of inventory acquired
or manufactured subsequent to the Balance Sheet Date) consist only of items of
quality and quantity commercially usable and salable in the ordinary course of
business, except for any items of obsolete material or material below standard
quality, all of which have been written down to realizable market value, or for
which adequate reserves have been provided.
4.25 PURCHASE COMMITMENTS AND OUTSTANDING BIDS. As of the date of
this Agreement, the aggregate of all accepted and unfulfilled orders for the
sale of merchandise entered into by the Company does not exceed $ 750,000.00 and
the aggregate of all Contracts or commitments for the purchase of supplies by it
does not exceed $ 200,000.00, all of which orders, Contracts and commitments
were made in the ordinary course of business. As of the date of this Agreement,
there are no claims against the Company to return in excess of an aggregate of $
10,000 of merchandise by reason of alleged overshipments, defective merchandise
or otherwise, or of merchandise in the hands of customers under an understanding
that such merchandise would be refundable. No outstanding purchase or
outstanding lease commitment of the Company presently is in excess of the
normal, ordinary and usual requirements of its business or was made at any price
in excess of the now current market price or contains terms and conditions more
onerous than those usual and customary in the Company's business. There is no
outstanding bid, proposal, Contract or unfilled order of the Company which when
or would, if accepted, have a material adverse effect, individually or in the
aggregate, on the business or financial condition of the Company.
4.26 PAYMENTS. The Company has not, directly or indirectly, paid or
delivered any fee, commission or other sum of money or item or property, however
characterized, to any finder, agent, government official or other party, in the
United States or any other country, which is in any manner related to the
business or operations of the Company, which the Company knows or has reason to
believe to have been illegal under any federal, state or local laws of the
United States or any other country having jurisdiction; and the Company has not
participated, directly or indirectly, in any boycotts or other similar practices
affecting any of its actual or potential customers
21
and has at all times done business in an open and ethical manner.
4.27 CUSTOMERS AND SUPPLIERS. The Disclosure Schedule contains a
complete and accurate list of (i) the ten (10) largest customers of the Company
in terms of sales during the Company's last fiscal year, showing the approximate
total sales by the Company to each such customer during such fiscal year; (ii)
the ten (10) largest suppliers of the Company in terms of purchases during the
Company's last fiscal year, showing the approximate total purchases by the
Company from each such supplier during such fiscal year. Since the Balance
Sheet Date, there has been no adverse change in the business relationship of the
Company with any customer or supplier named in the Disclosure Schedule which is
material to the business or financial condition of the Company.
4.28 ENVIRONMENTAL AND SAFETY COMPLIANCE. There are no present or
past Environmental Conditions in any way relating to the Facilities. The
Company did not cause or contribute to, nor did the Company negligently permit a
third party to cause or contribute to, any Environmental Condition in any way
relating to the Facilities. For purposes of this Agreement, "Environmental
Condition" means any environmental pollution, including, without limitation, any
contaminant, irritant or pollutant, from any spill, discharge, leak, emission,
escape, injection, dumping or release of any kind whatsoever or any exposure of
any type in any work places or to any medium, including, without limitation,
air, land, surface waters or groundwaters, or from any generation,
transportation, treatment, discharge, handling, storage or disposal of Hazardous
Substances used, generated, transported, treated, discharged, stored or disposed
of (in any case, "Handled"), except in all cases in the ordinary course of the
operations or business of the Company and in accordance in all material respects
with all Environmental Laws relating thereto.
Without limiting the generality of the foregoing, neither (i) the
operations of the Company, nor (ii) the collection, distribution or sale of the
processes, results or products of the Company, violates or has violated any
Environmental Law. The Company has timely obtained all licenses and permits and
timely filed all reports required to be filed under any Environmental Laws. The
Company has not handled any Hazardous Substances on, beneath or about any of the
Facilities, except for Hazardous Substances reasonably necessary to the business
of the Company (which Hazardous Substances, if any, were Handled, in compliance
with Environmental Laws). The Company has not received any notice from any
governmental agency or private or public entity advising the Company that it is
potentially responsible for response costs with respect to a release or
threatened release of Hazardous Substances. The Company has not buried, dumped,
released or otherwise disposed of any Hazardous Substances, on, beneath or about
any of the Facilities
22
or on, beneath or about any other property used in the business of the Company.
The Company has not received notice of any violation of any Environmental Law or
other zoning or land use ordinance, law or regulation relating to the business
or operations of the Company, or any of the processes followed, results obtained
or products made by the Company.
4.29 MATERIAL MISSTATEMENTS OR OMISSIONS. No representations or
warranties by the Company in this Agreement, nor any document, exhibit,
statement, certificate or schedule furnished to Acquiring Corporation pursuant
hereto, or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact necessary to make the statements or facts contained
therein not misleading. The Company has disclosed all events, conditions and
facts materially affecting the business, prospects and financial condition of
the Company.
4.30 BUSINESS OF THE COMPANY. As of the Closing Date, the Company
shall only be engaged in the manufacture, distribution and sale of Oil and Gas
Products and fire suppression systems and related equipment, and the only assets
and liabilities retained by the Company as of such date shall be related to the
manufacturing, distribution and selling of Oil and Gas products and fire
suppression systems, including, without limitation, accounts receivable,
inventory, tangible personal property, leased property, contractual rights,
records (customer and production related), government licenses, permits and
approvals, and trade name of the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Except as otherwise set forth in the Disclosure Schedule, Stockholder
hereby represents and warrants to Acquiring Corporation as follows:
5.1 ORGANIZATION OF STOCKHOLDERS. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is the owner of
record and beneficially of all of the issued and outstanding Stock free and
clear of all encumbrances, and upon transfer pursuant to this Agreement,
Acquiring Corporation will own shares representing 100% of the Company's issued
and outstanding capital stock free and clear of all encumbrances.
5.2 AUTHORIZATION. Stockholder has all necessary power and authority
to enter into this Agreement and has taken all action necessary to consummate
the transactions contemplated hereby and to perform his respective obligations
hereunder. This Agreement has been duly executed and delivered by Stockholder
and is a legal,
23
valid and binding obligation of Stockholder enforceable against Stockholder in
accordance with its terms.
5.3 CONTRACTS AND COMMITMENTS. Stockholder is not a party to any
written or oral commitment, contract, lease, note, loan, evidence of
indebtedness, purchase order, letter of credit or other agreement involving any
obligation or liability on the part of the Company or relating to the business
of the Company and otherwise materially affecting the Company's business not
otherwise listed in the Disclosure Schedule.
Stockholder and the Company is not (and to the best knowledge of
Stockholder, no other party is) in material breach or violation of, or default
under any of the contracts or other instruments, obligations, evidences of
indebtedness or commitments set forth in the Disclosure Schedule, the breach or
violation of which would have a material adverse effect on the business or
financial condition of the Company.
5.4 CONSENTS AND APPROVALS. No consent, approval or authorization
of, or declaration, filing or registration with, any governmental or regulatory
authority, or any other person or entity, is required to be made or obtained by
Stockholder in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby.
5.5 NO BROKERS. Stockholder has not entered and will not enter into
any Contract, agreement, arrangement or understanding with any person or firm
which will result in the obligation of Acquiring Corporation to pay any finder's
fee, brokerage commission or similar payment in connection with the transactions
contemplated hereby.
5.6 NO OTHER AGREEMENTS TO SELL THE ASSETS OR THE COMPANY.
Stockholder does not have any legal obligation, absolute or contingent, to any
other person or firm to sell the Assets, to sell any capital stock of the
Company or to effect any merger, consolidation or other reorganization of the
Company or to enter into any agreement with respect thereto.
5.7 TRANSACTIONS WITH CERTAIN PERSONS. To the knowledge of
Stockholder, no officer, director or employee of Stockholder nor any member of
any such person's immediate family is presently a party to any material
transaction with the Company relating to the Company's business, including
without limitation, any contract, agreement or other arrangement (i) providing
for the furnishing of material services by, (ii) providing for the rental of
material real or personal property from, or (iii) otherwise requiring material
payments to (other than for services as officers, directors or employees of
Stockholder) any such person or corporation,
24
partnership, trust or other entity in which any such person has a substantial
interest as a shareholder, officer, director, trustee or partner.
5.8 MATERIAL MISSTATEMENTS OR OMISSIONS. No representations or
warranties by Stockholder, in this Agreement, nor any document, exhibit,
statement, certificate or schedule furnished to Acquiring Corporation pursuant
hereto, or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact necessary to make the statements or facts contained
therein not misleading.
5.9 NO KNOWLEDGE OF INDEMNIFICATION EVENTS. Stockholder has no
knowledge of the existence of any event or combination of events, disclosed or
undisclosed, which have occurred prior to closing for which any person or entity
would be entitled to seek Indemnification against Stockholder, Company or
Acquiring Company.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ACQUIRING CORPORATION
Acquiring Corporation hereby represents and warrants to Stockholder as follows:
6.1 ORGANIZATION OF ACQUIRING CORPORATION. Acquiring Corporation is
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has full corporate power and authority to conduct its
business and to own and lease its properties.
6.2 AUTHORIZATION. Acquiring Corporation has all necessary corporate
authority to enter into this Agreement and has taken all necessary corporate
action to consummate the transactions contemplated hereby and to perform its
obligations hereunder. This Agreement has been duly executed and delivered by
Acquiring Corporation and is a valid and binding obligation of Acquiring
Corporation enforceable against it in accordance with its terms.
6.3 CONSENTS AND APPROVALS. No consent, approval or authorization
of, or declaration, filing or registration with, any United States federal or
state governmental or regulatory authority is required to be made or obtained by
Acquiring Corporation in connection with the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby.
25
6.4 NO BROKERS. Neither Acquiring Corporation nor any affiliate of
Acquiring Corporation has entered into or will enter into any agreement,
arrangement or understanding with any person or firm in which will result in the
obligation of Stockholder to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby.
6.5 NO CONFLICT OR VIOLATION. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
result in (a) a violation of or a conflict with any provision of the Certificate
of Incorporation or Bylaws of Acquiring Corporation, (b) a breach of, or a
default under, any term or provision of any contract, agreement, indebtedness,
lease, commitment, license, franchise, permit, authorization or concession to
which Acquiring Corporation is a party which breach or default would have a
material adverse effect on the business or financial condition of Acquiring
Corporation or its ability to consummate the transactions contemplated hereby or
(c) a violation by Acquiring Corporation of any statute, rule, regulation,
ordinance, code, order, judgment, writ, injunction, decree or award, which
violation would have a material adverse effect on the business or financial
condition of Acquiring Corporation or its ability to consummate the transactions
contemplated hereby.
6.6 LITIGATION. There is no action, order, writ, injunction,
judgment or decree outstanding or claim, suit, litigation, proceeding, labor
dispute, arbitral action or investigation (collectively, "Actions") pending or,
to the knowledge of the Acquiring Corporation, threatened or anticipated
against, relating to or affecting (i) the Acquiring Corporation, (ii) any
benefit plan for Personnel or any fiduciary or administrator thereof or (iii)
the transactions contemplated by this Agreement. The Acquiring Corporation is
not in default with respect to any judgment, order, writ, injunction or decree
of any court or governmental agency, and there are no unsatisfied judgments
against the Acquiring Corporation or the business or activities of the Acquiring
Corporation. There is not a reasonable likelihood of an adverse determination of
any pending Actions which would, individually or in the aggregate, have a
material adverse effect on the business or financial condition of the Acquiring
Corporation.
6.7 COMPLIANCE WITH LAW. The Acquiring Corporation and the conduct
of its business are in compliance with all applicable laws, statutes, ordinances
and regulations, whether federal, state or local, except where the failure to
comply would not have a material adverse effect on the business or financial
condition of the Acquiring Corporation. The Acquiring Corporation has not
received any written notice to the effect that, or otherwise been advised
26
that, it is not in compliance with any of such statutes, regulations, orders,
ordinances or other laws where the failure to comply would have a material
adverse effect on the business or financial condition of the Acquiring
Corporation, and the Acquiring Corporation has no reason to anticipate that any
presently existing circumstances are likely to result in violations of any such
regulations which would, in any one case or in the aggregate, have a material
adverse effect on the business or financial condition of the Acquiring
Corporation.
6.8 MATERIAL MISSTATEMENTS OR OMISSIONS. No representations or
warranties by the Acquiring Corporation in this Agreement, nor any document,
exhibit, statement, certificate or schedule furnished to Stockholder pursuant
hereto, or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact necessary to make the statements or facts contained
therein not misleading. The Acquiring Corporation's annual report has disclosed
all events, conditions and facts materially affecting the business, prospects
and financial condition of the Acquiring Corporation.
ARTICLE VII
ACTIONS BY STOCKHOLDER, THE COMPANY AND
ACQUIRING CORPORATION PRIOR TO THE CLOSING
Stockholder, the Company and Acquiring Corporation covenant as follows
for the period from the date hereof through the Closing Date:
7.1 MAINTENANCE OF BUSINESS. The company shall diligently carry on
its business in the ordinary course consistent with past practice.
7.2 CERTAIN PROHIBITED TRANSACTIONS. The Company shall not without
the prior written approval of Acquiring Corporation and Stockholder:
(a) incur any indebtedness for borrowed money, assume, guarantee,
endorse or otherwise become responsible for obligations of any other individual,
partnership, firm or corporation, or make any loans or advances to any
individual, partnership, firm or
27
corporation, except in the ordinary course of business and consistent with past
practice;
(b) issue any shares of its capital stock or any other securities or any
securities convertible into shares of its capital stock or any other securities;
(c) pay or incur any obligation to pay any dividend on its capital stock
or make or incur any obligation to make any distribution or redemption with
respect to capital stock;
(d) make any change to its Certificate of Incorporation or bylaws;
(e) mortgage, pledge or otherwise encumber any of its properties or
assets or sell, transfer or otherwise dispose of any of its properties or assets
or cancel, release or assign any indebtedness owed to it or any claims held by
it, except in the ordinary course of business and consistent with past practice;
(f) make any investment of a capital nature either by purchase of stock
or securities, contributions to capital, property transfer or otherwise, or by
the purchase of any property or assets of any other individual, partnership,
firm or corporation, except in the ordinary course of business and consistent
with past practice;
(g) enter into or terminate any material contract or agreement, or make
any material change in any of its leases and Contracts, other than in the
ordinary course of business and consistent with past practice; or
(h) engage in any business other than the type it currently conducts; or
(i) do any other act which would cause any representation or warranty of
Acquiring Corporation and the Company in this Agreement to be or become untrue
in any material respect.
7.3 INVESTIGATION BY ACQUIRING CORPORATION. Stockholder and the
Company shall allow Acquiring Corporation during regular business hours through
Acquiring Corporation's employees, agents and representatives, to make such
investigation of the business, properties, books and records of the Company, and
to conduct such examination of the condition of the Company, as Acquiring
Corporations deems necessary or advisable to familiarize itself with such
business, properties, books, records, condition and other matters, and to verify
the representations and warranties of Stockholder and the Company hereunder.
Stockholder and the Company shall allow Acquiring Corporation to contact the
Company's vendors, customers and any other person having business dealings with
the
28
Company. Acquiring Company's investigation shall be done in such a manner that
it does not interfere with the Company's business operations.
7.4 CONSENTS AND BEST EFFORTS. Stockholder and the Company will, as
soon as possible, commence to take all action required to obtain all consents,
approvals and agreements of, and to give all notices and make all other filings
with, any third parties, including governmental authorities, necessary to
authorize, approve or permit the full and complete sale, conveyance, assignment
or transfer of all of the Stock, and Acquiring Corporation shall cooperate with
Stockholder with respect thereto; provided, however, that Acquiring Corporation
shall not be required to agree to any unfavorable modification of any existing
contract or agreement in order to obtain such consent. In addition, subject to
the terms and conditions herein provided, each of the parties hereto covenants
and agrees to use its best efforts to take, or cause to be taken, all action or
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated hereby and to cause the fulfillment of the parties'
obligations hereunder.
7.5 NOTIFICATION OF CERTAIN MATTERS. Stockholder shall give prompt
notice to Acquiring Corporation, and Acquiring Corporation shall give prompt
notice to Stockholder, of (i) the occurrence, or failure to occur, of any event
which occurrence or failure would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect any time from the date hereof to the Closing Date and (ii) any material
failure of Stockholder, the Company or Acquiring Corporation, as the case may
be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder, and each party shall use all
reasonable efforts to remedy same.
7.6 NO MERGERS CONSOLIDATIONS, SALE OF STOCK, ETC. The Company and
Stockholder will not, directly or indirectly, solicit any inquiries or proposals
or enter into or continue any discussions, negotiations or agreements relating
to the sale or exchange of the Stock, the merger of the Company with, or the
direct or indirect disposition of a significant amount of the Company's assets
or business to any person other than Acquiring Corporation or its affiliates or
provide any assistance or any information to or otherwise cooperate with any
person in connection with any such inquiry, proposal or transaction. In the
event that the Company or Stockholder receives an unsolicited offer for such a
transaction or obtains information that such an offer is likely to be made, the
Company or Stockholder will provide Acquiring Corporation with notice thereof as
soon as practical after receipt, including the identity of the prospective
purchaser or soliciting party.
29
ARTICLE VIII
CONDITIONS TO STOCKHOLDERS' OBLIGATIONS
The obligations of Stockholder to transfer the Stock to Acquiring
Corporation on the Closing Date are subject, in the discretion of Stockholder,
to the satisfaction, on or prior to the Closing Date, of each of the following
conditions:
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations
and warranties of Acquiring Corporation contained in this Agreement shall be
true and correct in all material respects at and as of the Closing Date as if
such representations and warranties were made at and as of the Closing Date, and
Acquiring Corporation shall have performed in all material respects all
agreements and covenants required hereby to be performed by it prior to or at
the Closing Date.
8.2 CONSENTS. All consents, approvals and waivers from governmental
authorities and other parties necessary to permit Stockholders to transfer the
Stock to Acquiring Corporation as contemplated hereby shall have been obtained,
unless the failure to obtain any such consent, approval or waiver would not have
a material adverse effect upon Stockholder.
8.3 NO GOVERNMENTAL PROCEEDING OR LITIGATION. No suit, action,
investigation, inquiry or other proceeding by any governmental authority or
other person shall have been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby and which could
reasonably be expected materially to damage Stockholder if the transactions
contemplated hereunder are consummated.
8.4 CORPORATE DOCUMENTS. Stockholder shall have received from
Acquiring Corporation resolutions adopted by the Board of Directors of Acquiring
Corporation approving this Agreement and the transactions contemplated hereby,
certified by Acquiring Corporation's corporate secretary.
ARTICLE IX
CONDITIONS TO ACQUIRING CORPORATION'S OBLIGATIONS
The obligations of Acquiring Corporation to purchase the Stock as
provided hereby are subject, in the discretion of Acquiring Corporation, to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations
and warranties of Stockholder and the Company
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contained in this Agreement shall be true and correct as of the Closing Date as
if such representations and warranties were made at and as of the Closing Date,
and Stockholder and the Company shall have performed all agreements and
covenants required hereby to be performed by them prior to or at the Closing
Date. There shall be delivered to Acquiring Corporation certificates from each
of the Stockholder and the Company (signed by the President or a Vice President
of the Company and Stockholder) to the foregoing effect.
9.2 CONSENTS. All consents, approvals and waivers from governmental
authorities and other parties necessary to permit Stockholder to transfer the
Stock to Acquiring Corporation as contemplated hereby shall have been obtained,
unless the failure to obtain any such consent, approval or waiver would not have
a material adverse effect upon Acquiring Corporation.
9.3 NO GOVERNMENTAL PROCEEDING OR LITIGATION. No suit, action,
investigation, inquiry or other proceeding by any governmental authority or
other person shall have been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby and which could
reasonably be expected materially and adversely to affect the value of the Stock
or business of the Company.
9.4 CERTIFICATES. The Company shall furnish Acquiring Corporation
with such certificates of the respective officers of the Company and others to
evidence compliance with the conditions set forth in this Article IX as may be
reasonably requested by Acquiring Corporation.
9.5 CORPORATE DOCUMENTS. Acquiring Corporation shall have also
received the corporate minute books, Certificates of Incorporation, Bylaws and
stock transfer books of the Company.
9.6 INVESTIGATION. Acquiring Corporation or its Representatives
shall have investigated the Company's properties (including without limitation,
an environment audit), business, books and records, and in Acquiring
Corporation's sole discretion, Acquiring Corporation shall be satisfied on the
basis of such investigation that the representations and warranties of
Stockholder and the Company made pursuant to this Agreement are accurate and
complete.
9.7 EMPLOYMENT AGREEMENTS. Stockholder shall execute and deliver to
Company on or before closing an Employment Agreement in a form substantially the
same as attached hereto as Exhibit A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall execute an
instrument in acceptable form releasing the Company from any obligations arising
out of that certain letter agreement between the parties dated April 30, 1998.
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9.8 ACCOUNTING MATTERS. Prior to closing Company shall have
performed the following accounting functions in addition to any other
obligations contained herein:
1. Filed its 1997 1120S return;
2. Provided the Balance Sheets and Financial Statements required
herein;
3. All ▇▇▇▇▇▇▇▇ have been brought up to date;
4. Completion of a detailed inventory valuation;
5. Completion of a detailed fixed assets schedule with supporting
documentation; and
6. Compilation of "job cost" detail on a minimum of four jobs
completed in 1998 as representative of profit margins.
9.9 COMPLETION OF BUY OUT. Prior to Closing Stockholder shall have
provided fully executed copies of all buy out documents and proof of payment by
and between Company, Stockholder and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
ARTICLE X
ACTIONS BY STOCKHOLDER, THE COMPANY
AND ACQUIRING CORPORATION AFTER THE CLOSING
10.1 FURTHER ASSURANCES. On and after the Closing Date, Stockholder,
the Company and Acquiring Corporation will take all appropriate action and
execute all documents, instruments or conveyances of any kind which may be
reasonably necessary or advisable to carry out any of the provisions hereof.
ARTICLE XI
INDEMNIFICATION
11.1 SURVIVAL OF REPRESENTATIONS, ETC. All statements contained in
the Disclosure Schedule or in any certificate or instrument of conveyance
delivered by or on behalf of the parties pursuant to this Agreement or in
connection with the transactions contemplated hereby shall be deemed to be
representations and warranties by the parties hereunder. The representations
and warranties of Stockholder, the Company and Acquiring Corporation contained
herein shall survive the Closing Date until the 15th day of November, 2002,
without regard to any investigation made by any of the parties hereto; provided,
however, that such representations and warranties shall survive as to any claim
or demand made prior to the 15th day of November, 2002 until such claim or
demand is fully paid or otherwise resolved by the parties hereto in writing or
by a court of competent jurisdiction.
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11.2 INDEMNIFICATION. Stockholder shall indemnify Acquiring
Corporation and Company against, and hold Acquiring Corporation and Company
harmless from, any damage, claim, liability or expense, including without
limitation, interest, penalties and reasonable attorneys' fees, INCLUDING
WITHOUT LIMITATION ANY UNDISCLOSED TAX LIABILITIES OF COMPANY INCURRED PRIOR TO
NOVEMBER 1, 1998 WHETHER KNOWN OR UNKNOWN TO STOCKHOLDER, (collectively
"Damages"), arising out of the breach of any warranty, representation, covenant
or agreement of Stockholder contained in this Agreement. The Acquiring
Corporation shall indemnify and hold Stockholder harmless from any Damages
arising out of the breach of any warranty, representation, covenant or agreement
of Acquiring Corporation contained in this Agreement. The Company shall
indemnify and hold Acquiring Corporation harmless from any Damages arising out
of the breach of any warranty, representation, covenant or agreement of Company
contained in this Agreement. The term "Damages" as used in Article XI is not
limited to matters asserted by third parties against Stockholder, the Company or
Acquiring Corporation, but includes Damages incurred or sustained by the
Company, Stockholder or Acquiring Corporation in the absence of third party
claims. No claims for indemnification by Acquiring Corporation or Stockholder
may be made or instituted after four years following the Closing date of this
Agreement. All claims for indemnification made prior to the end of the four year
period shall continue until a final determination is made in regard to the
validity of the indemnification claim by either settlement, arbitration or
litigation.
11.3 INDEMNIFICATION PROCEDURES. Upon Acquiring Corporation becoming
aware of a fact, condition or event which constitutes a breach of any of the
representations, warranties, covenants or agreements of Stockholder or the
Company contained herein or a products liability claim, if a claim for Damages
in respect thereof is to be made against Stockholder under this Article XI,
Acquiring Corporation will with reasonable promptness notify Stockholder or the
Company, as the case may be, in writing of such fact, condition or event. If
such fact, condition or event is the assertion of a claim by a third party,
Stockholder or the Company, as the case may be, will be entitled to participate
in or take charge of the defense against such claim, provided that Stockholder
or the Company, as the case may be, and its counsel, shall proceed with
diligence and in good faith with respect thereto.
11.4 NO RIGHT OF CONTRIBUTION. After the Closing, the Company shall
have no liability to indemnify the Stockholder on account of the breach of any
representation or warranty or the nonfulfillment of any covenant or agreement of
the Company; and Stockholder shall have no right of contribution against the
Company. In addition to any other remedy which may be available at law or in
equity, Acquiring Corporation or the Company shall be entitled to specific
33
performance and injunctive relief, without posting bond or other security.
ARTICLE XII
SECURITIES LAWS
12.1 ACQUISITION FOR INVESTMENT. Acquiring Corporation and
Stockholder hereby acknowledge that the shares of Stock to be purchased pursuant
to the terms of this Agreement shall be acquired in good faith for investment
for its own account and not with a view to a distribution or resale of any of
such Stock, and shall not for a period of one (1) years after closing transfer,
sell, exchange or encumber the same except as provided for herein.
ARTICLE XIII
STOCKHOLDER'S OPTION TO RESELL
TO ACQUIRING CORPORATION
13.1 SALE OPTION OF STOCKHOLDER. Stockholder for a period of one year
following the closing of the transaction shall be entitled to require Acquiring
Corporation to repurchase all or any portion of his 50,000 shares of common
voting stock in the Acquiring Corporation for cash consideration of One Dollar
($1.00) per share. Stockholder shall exercise this option by written
notification, in accordance with Article 14.3 herein, to Acquiring Corporation.
The written notification shall state the number of shares Acquiring Corporation
shall be required to repurchase and the date and time, which time and date shall
be at least ten (10) days from the date of the notice, when the transaction
shall occur.
ARTICLE XIV
MISCELLANEOUS
14.1 TERMINATION. This Agreement may be terminated as follows:
(a) This Agreement may be terminated and the transactions contemplated
hereby abandoned by any party if the conditions set forth in Articles VIII and
IX have not been satisfied on or before November 15, 1998 (unless waived by the
party entitled to the benefit thereof), without liability of any party hereto;
provided, however, that no party shall be released from liability hereunder if
this Agreement is terminated and the transactions abandoned by reason of (i)
willful failure of any party to have performed its obligations hereunder, or
(ii) any knowing misrepresentation made by any party of any matter set forth
herein.
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(b) This agreement may be terminated by Acquiring Corporation in its
sole discretion at any time between November 1, 1998 and closing should:
1. After completion of a complete financial audit of the
Company, Acquiring Company shall determine in its sole discretion that it does
not desire to complete the closing of the transaction.
2. After completion of a legal audit of the Company, Acquiring
Company shall determine in its sole discretion that it does not desire to
complete the closing of the transaction.
14.2 ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by Stockholder without the prior written
consent of Acquiring Corporation, or by Acquiring Corporation without the prior
written consent of Stockholder. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and no other person shall have any right,
benefit or obligation hereunder.
14.3 NOTICES. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the others
shall be in writing and delivered in person or by courier, telegraphed, telexed
or by facsimile transmission or mailed by certified mail, postage prepaid,
return receipt requested (such mailed notice to be effective on the date such
receipt is acknowledged), as follows:
If to Stockholders: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to Company: 10913 Metronome
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to Acquiring Corporation: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
14.4 CHOICE OF LAW. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of Texas except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
35
14.5 ENTIRE AGREEMENT: Amendments and Waivers. This Agreement,
together with all exhibits and schedules hereto, constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement, modification or waiver
of this Agreement shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
14.6 COUNTERPARTS. This Agreement may be executed 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.
14.7 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument.
14.8 HEADINGS. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
14.9 EXPENSES. Company, Stockholder and Acquiring Corporation will
each be liable for their own costs and expenses incurred in connection with the
negotiation, preparation, execution or performance of this Agreement, except for
the fees incurred in the financial audit of Company and conversion of Company
from the cash to the accrual method of accounting. The fees for such audit and
conversion shall be split equally between Acquiring Corporation and the
Stockholder.
14.10 PUBLICITY. No party shall issue any press release or make any
public statement regarding the transactions contemplated hereby, without the
prior approval of the other party, and the parties hereto shall issue a mutually
acceptable press release as soon as practicable after the Closing Date.
14.11 CONFIDENTIAL INFORMATION. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to consultants, advisors and affiliates, or as required by law,
until such time as the parties make a public announcement regarding the
transaction as provided in Section 14.10. Neither Stockholder nor Acquiring
Corporation shall make any public disclosure of the specific terms of this
Agreement,
36
except as required by law. In connection with the negotiation of this Agreement
and the preparation for the consummation of the transactions contemplated
hereby, each party acknowledges that it will have access to confidential
information relating to the other party. Each party shall treat such
information as confidential, preserve the confidentiality thereof and not
duplicate or use such information, except to advisors, consultants and
affiliates in connection with the transactions contemplated hereby.
Stockholder, at a time and in a manner which he reasonably determines and after
prior notice to and consultation with Acquiring Corporation, may notify
employees, unions and bargaining agents of the fact of the subject transaction.
In the event of the termination of this Agreement for any reason whatsoever,
each party shall return to the other all documents, work papers and other
material (including all copies thereof) obtained in connection with the
transactions contemplated hereby and will use all reasonable efforts, including
instructing its employees and others who have had access to such information, to
keep confidential and not to use any such information, unless such information
is now, or is hereafter disclosed, through no act or omission of such party, in
any manner making it available to the general public.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or have
caused this Agreement to be duly executed on their respective behalf by their
respective officers thereunto duly authorized, to be effective as of the day and
year first above written.
INDUSTRIAL DATA SYSTEMS, CORP.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PRESIDENT
MLC ENTERPRISES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
BY: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, PRESIDENT
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, STOCKHOLDER
37