EX-10(viii) Exchange of Share Agreement, re: Brounley Engineering
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is made this30th of September,
1998, by and among ▇▇▇▇▇ TECHNOLOGY LICENSING, INC., Florida corporation ("TTL")
; BROUNLEY ASSOCIATES, INC.. a Florida corporation ("Brounley); and the persons
listed in Exhibit "A-l" hereof who are the owners of record of all the issued
and outstanding stock of Brounley who execute and deliver the Agreement
("Brounley Stockholders"), based on the following:
Recitals
TTL wishes to acquire all the issued and outstanding stock of Brounley
in exchange for stock of TTL in ~; transaction intended to qualify as a tax-free
exchange pursuant to section 368(a)(l)(B) of the internal Revenue Code of 1986,
as amended. The parties intend for this Agreement to represent the terms and
conditions of such tax-free reorganization, which Agreement the parties hereby
adopt.
Agreement
Based on the stated premises, which are incorporated herein by
reference, and for and in consideration of the mutual covenants and agreements
hereinafter set forth, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, it is hereby agreed as follows:
ARTlCLE I EXCHANGE OF STOCK
1.01 Exchange of Shares. On the terms and subject to the conditions set forth in
this Agreement; on the Closing Date (as defined in Section 1.05 hereof), the
Brounley Stockholders shall assign, transfer, and deliver.. to TTL, free and
clear of all liens, pledges, encumbrances, charges, restrictions, or claims of
any kind, nature, or description, all issued and outstanding shares of common
stock of Brounley (the "Brounley Shares") held by Brounley Stockholders which
shares shall represent all issued and outstanding shares of Brounley common
stock which total 22,222 shares, and TTL agrees to acquire such shares on such
date by issuing and delivering in exchange therefore aggregate of 900,000
unregistered shares of TTL common stock, par value $0.001 per share, (the "TTL
Common Stock"). Such shares of TTL Common Stock shall be issued pro rata based
on the number of Brounley Shares held and as set forth opposite the Brounley
Stockholder's respective names in Exhibit "A-l". All 900,000 shares of TTL
Common Stock to be issued and delivered pursuant to this Agreement shall be
appropriately adjusted to take into account any stock split, stock dividend,
reverse stock split, recapitalization, or similar change in the TTL Common Stock
which may occur between the date of the execution of this Agreement and the
Closing Date.
1.02 Delivery of Certificates by Brounley Stockholders. The transfer of Brounley
Shares by the Brounley Stockholders shall be effected by the delivery to T7L at
the Closing (as set forth in Section 1.05 hereof) of a certificate issued to TTL
representing all of the issued and outstanding shares of Brounley.
1.03 Operation as Wholly-Owned Subsidiary. After giving effect to the
transaction contemplated hereby, TTL will own all the issued and outstanding
shares of Brounley and Brounley shall be merged with TTL.
1.04. Further Assurances . At the Closing and from time to time thereafter, the
Brounley Stockholders shall execute such additional instruments and take such
other action as TTL may reasonably request without undue cost to the Brounley
Stockholders in order to more effectively sell, transfer, and assign clear title
and assign clear title and ownership in the Brounley Shares to TTL.
1.05 Closing and Parties. The Closing contemplated hereby shall be held at the
principal office of TTL in Largo, Florida on or before 9:00 a.m. September 30,
1998, or on another date to be agreed to in writing by the parties (the "Closing
Date"). The Agreement may be closed at any time following approval by a majority
of the stockholders of TTL Common Stock as set forth in Section 4.02 hereof and
the Brounley Stockholders as set forth in Section 5.02. The Closing may be
accomplished by wire, express mail, overnight courier conference telephone call
or as otherwise agreed to by the respective parties or their duly authorized
representatives.
1.06. Closing Events.
(a) TTL Deliveries. Subject to fulfillment or waiver of the conditions set forth
in Article 1V, TTL shall deliver to Brounley at Closing all the following:
(i) A certificate of good standing from the secretary of State of Florida,
certifying that TTL is in good standing as a corporation in the State of
Florida;
(ii) Incumbency and specimen signature certificates dated the Closing Date with
respect to ; the officers of TTL executing this Agreement and any other document
delivered pursuant hereto on behalf of TTL;
(iii) Copies of the resolutions of TTL's board of directors and shareholder
minutes or consents i authorizing the execution and performance of this
Agreement and the contemplated transactions, certified by the secretary or an
assistant secretary of TTL as of the Closing Date;
(iv) The certificate contemplated by Section 4.03, duly executed by the chief
executive officer of TTL;
(vi) Certificates for 900,000 shares of TTL Common Stock in the names of the
Brounley Stockholders and in the amounts set forth in Exhibit "A-l" which shall
be issued by TTL's transfer agent immediately following Closing or as
expeditiously as possible thereafter; and
(v) The certificate contemplated by Section 4.04, dated the Closing Date, signed
by the chief executive officer of TTL
In addition to the above deliveries, TTL shall take all steps and actions as
Brounley and Brounley Stockholders I' may reasonably request or as may otherwise
be reasonably necessary to consummate the transactions contemplated 6 hereby.
(b) Brounley Deliveries. Subject to fulfillment or waiver of the conditions set
forth in Article V, Brounley and/or Brounley Stockholder's shall deliver to TTL
at Closing all the following:
(i) A certificate of good standing from the secretary of state of Florida,
issued as of a date within five days prior to the Closing Date certifying that
Brounley is in good standing as a corporation in the State of Florida;
(ii) Incumbency and specimen signature certificates dated the Closing Date with
respect to the officers of Brounley executing this Agreement and any other
document delivered pursuant hereto on behalf of Brounley;
(iii) Copies of resolutions of the board of directors and of the stockholders of
Brounley authorizing the execution and performance of this Agreement and the
contemplated transactions, certified by the secretary or an assistant secretary
of Brounley as of the Closing Date;
(iv) The certificate contemplated by Section 5.03, executed by the chief
operating officer of Brounley; and
(v) The certificate contemplated by Section 5.04, dated the Closing Date, signed
by the chief operating officer of Brounley.
In addition to the above deliveries, Brounley shall take all steps and actions
as TTL may reasonably request or as may otherwise be reasonably necessary to
consummate the transactions contemplated hereby.
Termination.
This Agreement may be terminated by the board of directors of either TTL or
Brounley at any time prior to the Closing Date if:
(i) There shall be any actual or threatened action or proceeding before any
court or any govemmental body which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement and which, in the
reasonable judgment of such board of directors, made in good faith and based
upon the advice of its' legal counsel, makes it inadvisable to proceed with the
transactions contemplated by this Agreement;
(ii) Any of the transactions contemplated hereby are disapproved by any
regulatory authority whose approval is required to consummate such transactions
or in the reasonable judgment of such board of directors made in good faith and
based on the advice of counsel, there is substantial likelihood that any such
approval will not be obtained or will be obtained only on a condition or
conditions which would be unduly burdensome, making it inadvisable to proceed
with the exchange;
In the event of termination pursuant to this paragraph (a) of Section 1.07, no
obligation, right, or liability shall arise hereunder, and each party shall bear
all of the expenses incurred by it in connection with the negotiation,
preparation, and execution of this Agreement and the transactions contemplated
hereby.
(b) This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of TTL if(i) Brounley shall fail to comply in
any material respect with any of its covenants or agreement contained in this
Agreement or if any of the representations or warranties of Brounley contained
herein shall be inaccurate in any material respect or (ii) TTL determines that
there has been or is likely to be any material adverse change in the financial
or legal condition of Brounley. In the event of termination pursuant to this
paragraph (b) of this Section 1.07, no obligation, right, remedy, or liability
shall arise hereunder. All parties shall bear their own costs incurred in
connection with the negotiation, preparation, and execution of this Agreement
and the transactions contemplated hereby.
(c) This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of Brounley if(i) TTL shall fail to comply in
any material respect with any of its covenants or agreement contained in this
Agreement or if any of the representations or warranties of TTL contained herein
shall be inaccurate in any material respect, or (ii) Brounley determines that
there has been or is likely to be any adverse change in the financial or legal
condition of TTL. In the event of termination pursuant to this paragraph (c) of
this Section 1.07. no obligation, right, remedy, or liability shall arise
hereunder. All parties shall each bear their own costs incurred in connection
with the negotiation, preparation, and execution of this Agreement and the
transactions contemplated hereby'
1.08 Registration of TTL Shares. Concurrent with the Closing of this Agreement,
or immediately thereafter, TTL shall file a form SB-2 registration statement to
register certain of its equity securities with the Securities and Exchange
Commission ("S.E.C") pursuant to the Securities Act of 1933, as amended ("▇▇▇
▇▇▇▇ ▇▇▇") and shall use its best efforts to have said registration statement
approved by the SEC Out of the total shares being registered, by TTL, 105,000 of
those shares shall be the TTL Common Stock being transferred to the Brounley
Stockholders pursuant to this Agreement. Thus, TTL shall submit for registration
105,000 out of the 900,000 TTL shares in total being transferred to Brounley
Stockholders (hereafter "Registered Shares"). The Registered Shares shall be
issued and held as set forth in Exhibit A-l opposite the respective Brounley
Stockholders' names.
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF TTL
As an inducement to, and to obtain the reliance of Brounley, TTL represents and
warrants as follows:
2.01 Organization. TTL is, and will be on the Closing Date, a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida and has the corporate power and is and will be duly authorized,
qualified, franchised, and licensed under all applicable laws, regulations,
ordinances, and orders of public I' authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now
being': conducted, and there are no other jurisdictions in which it is not so
qualified in which the character and location of the' assets owned by it or the
nature of the material business transacted by it requires qualification, except
where failure to do so would not have a material adverse effect on its business,
operations, properties, assets or condition. The execution " and delivery of
this Agreement does not, and the consummation of the transactions contemplated
by this Agreement in accordance with the terms hereof will not, violate any
provision of TTL's articles of incorporation or bylaws, or other agreement to
which it is a party or by which it is bound.
2.02 Approval of Agreement. TTL has full power, authority, and legal right and
has taken, or will taken all action required by law, its articles of
incorporation, bylaws, and otherwise to execute and deliver this Agreement and
to consummate the transactions herein contemplated. The board of directors of
TTL has authorized and approved the execution, delivery, and performance of this
Agreement and the transactions contemplated hereby; subject to the approval of
the TTL stockholders and compliance with state and federal corporate and
securities laws.
2.03 Capitalization The authorized capitalization of TTL consists of 20,000,000
shares of common stock, $0.001 par value, of which 15,595,454 shares are issued
and outstanding. All issued and outstanding shares of TTL are legally issued,
fully paid, and nonassessable and not issued in violation of the preemptive or
other right of any person. There are no dividends or other amounts due or
payable with respect to any of the shares of capital stock of TTL.
Financial Statements.
(a) Included in Schedule 2.04 are the financial statements which were filed by
TTL in connection with TTL's Form IO-SB, as well as quarterly audited financial
statements for the periods ending March 31, 1998 and June 30, 1998 (collectively
"1OQs"), which financial statements have been duly filed with the Securities and
Exchange Commission ("SEC") as required by the ▇▇▇▇ ▇▇▇.
(b) The financial statements of TTL delivered pursuant to Section 2.04(a) have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved as6 explained in the notes
to such financial statements. The TLL financial statements present fairly, in
all material respects,: as of their respective dates, the financial position of
TTL. TTL did not have, as of the date of any such financial statements, except
as and to the extent reflected or reserved against therein, any liabilities or
obligations (absolute or contingent) which should be reflected therein in
accordance with generally accepted accounting principles, and all assets
reflected therein present fairly the assets of TTL in accordance with generally
accepted accounting principles.
(c) TTL has filed or will file as of the Closing Date all tax returns required
to be filed by it from3 inception to the Closing Date. All such returns and
reports are accurate and correct in all material respect. TTL has' no material
liabilities with respect to the payment of any federal, state, county, local, or
other taxes (including any deficiencies, interest, or penalties) accrued for or
applicable to the period ended on the date of the most recent balance sheet of
TTL, except to the extent reflected on such balance sheet and all such dates and
years and periods prior thereto and for which TTL may at said date have been
liable in its own right or as transferee of the assets of, or as successor to,
any other corporation or entity, except for taxes accrued but not yet due and
payable, and to the best knowledge of TTL, no deficiency assessment or proposed
adjustment of any such tax return is pending, proposed or contemplated. To the
best knowledge of TTL, none of such income tax returns has been examined or is
currently being examined by the Internal Revenue Service and no deficiency
assessment or proposed adjustment of any such return is pending, proposed or
contemplated. TTL has not made any election pursuant to the provisions of any
applicable tax laws (other than elections that relate solely to methods of
accounting, depreciation, or amortization) that would have a material adverse
affect on ~n, its financial condition, its business as presently conducted or
proposed to be conducted, or any of its respective properties or material
assets. There are no outstanding agreements or waivers extending the statutory
period of limitation applicable to any tax return of TTL.
2.05 Outstanding Warrants and Options. TTL has no existing warrants or options,
calls, or commitments of any nature relating to the authorized and unissued TTL
Common Stock, except as disclosed in documents which are publicly filed by TTL.
2.06. Information. The information concerning TTL set forth in this Agreement is
complete and accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact required to make
the statements made, in light of the circumstances under which they were made,
not misleading. TTL shall cause the schedules delivered by it pursuant hereto
and the instruments delivered to Brounley hereunder to be updated after the date
hereof up to and including the Closing Date.
2.07 Absence of Certain Changes or Events. Except as set forth in this Agreement
or the schedules hereto: since the date of the most recent TTL balance sheet
described in Section 2.04 and included in the information referred to in Section
2.06:
(a) There has not been (i) any material adverse change in the business,
operations, properties, level of inventory, assets, or financial condition of
TTL or (ii) any damage, destruction, or loss to TTL (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or conditions o~
(b) To the best knowledge of TTL, it has not become subject to any law or
regulation which materially and adversely affects, or in the future would be
reasonably expected to adversely affect, the business, operations,.
properties, assets, or condition of TTL.
2.08 Litigation and Proceedings. . There are no material actions, suits, or
administrative or other proceedings pending or, to the knowledge of TTL,
threatened by or against TTL or adversely affecting TTL or its properties, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before and arbitrator of any kind. TTL
does not have any knowledge of any default on its part with respect to any
judgment, order; writ, injunction, decree, award, rule, or regulation of any
court, arbitrator, or govemmental agency or instrumentality.
2.09 Compliance With Laws and Regulations. TTL has complied with all applicable
statutes and regulations of any federal, state, or other govemmental entity or
agency thereof, except to the extent that noncompliance (i) could not materially
and adversely affect the business, operations, properties, assets, or condition
of TTL or (ii) could not result in the occurrence of any material liability for
TTL. To the best knowledge of TTL, the consummation of this transaction will
comply with all applicable statutes and regulations, subject to the preparation
and filing of any form required by state and federal securities laws.
2.10 Compliance with Securities Laws. TTL has complied with all applicable
security statutes and regulations. of any federal, state or other govemmental
entity or agency thereof, including the filing of any required documents in
regards to all sales of TTL Stock. TTL makes the additional following securities
disclosures as a material inducements to Brounley to enter into this
transaction:
a) TTL's common stock is currently traded on the OTC Bulletin Board ("OTC" or
"Over-the Counter") and TTL is in compliance with all applicable securities
rules and regulations regarding the OTC trading of its securities; and
b) TTL voluntarily became a reporting company pursuant to section 12(g) of the
Securities Exchange Act o 1934 by virtue of filing a Form IO-SB registration
statement which was approved by the SEC and is currently effective; and
c) TTL has filed for and been approved for a manual filing exemption with
Standard & Poor's (S&P) for 1998 and to the best of TTL's knowledge, its
securities have been and are currently trading in compliance with applicable
federal and state blue sky securities laws; and
d) TTL, through its approved market maker(s), has filed a current Form 211 with
the N.A.S.D.R. pursuant to Rule 15c-211, and has otherwise maintained and
updated the Form 211 as required by applicable securities laws an:'
e) TTL has met all current reporting requirements of Rule 12(g) and any other
applicable securities law and regulation applicable to TTL's trading market.
2.11 Material Contract Defaults. TTL is not in default in any material respect
under the terms of any outstanding contract, agreement, lease, or other
commitment which is material to the business, operations, properties, assets, or
condition of TTL, and there is no event of default or other event which, with
notice or lapse of time or both, would constitute a default in any material
respect under any such contract, agreement, lease, or other commitment in,
respect of which TTL has not taken adequate steps to prevent such a default from
occurring.
2.12 No Conflict With Other Instruments. The execution of this Agreement and the
consummation of the, transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust, or other material
contract, agreement, or instrument to which TTL is a party or to which any of
its properties or operations are subject.
2.13 TTL Schedules. TTL has delivered to Brounley the following schedules, which
are collectively referred to as the "TTL Schedules" and which consist of the
following separate schedules dated as of the date of execution of this
Agreement, all certified by a duly authorized officer of TTL as complete, true,
and accurate of the date of this Agreement;
(a) A schedule including copies of the articles of incorporation and bylaws of
TTL in effect as of the date of this agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of TTL approving this Agreement and the transactions herein
contemplated.
(c) A schedule setting forth the financial statements required pursuant to
Section 2.04(a) hereof,
(d) A schedule setting forth any other information, together with any required
copies of documents, required to be disclosed the TTL Schedules by Sections 2.01
through 2.13, TTL shall cause the TTL Schedules and the instruments delivered to
Brounley hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date. Such
updated TTL Schedules, certified in the same manner as the original TTL
Schedules, shall be delivered prior to and as a condition precedent to the
obligation of Brounley to close.
ARTICLE III REPRESENTATIONS, COVENANTS, AND WARRANTIES OF BROUNLEY
As an inducement to, and to obtain the reliance of, TTL, Brounley represents and
warrants as follows:
3.01 Organization. Brounley is, and will be on the Closing Date, a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida and has the corporate power and is and will be duly authorized,
qualified, franchised, and licensed under all applicable laws, regulations,
ordinances, and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being;
conducted, and there are no other jurisdictions in which it is not so qualified
in which the character and location of the assets owned by it or the nature of
the material business transacted by it requires qualification, except where
failure to do so would not have a material adverse effect on its business,
operations, properties, assets or condition of Brounley the execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate any provision of Brounley's articles of incorporation or bylaws, or
other material agreement to which it is a party or by which it is bound.
3.02 Approval of Agreement. Brounley has full power, authority, and legal right
and has taken, or will take, all action required by law, its articles of
incorporation, bylaws, or otherwise to execute and deliver this Agreement and to
consummate the transactions herein contemplated. The board of directors of
Brounley have authorized and approved the execution, delivery, and performance
of this Agreement and the transactions contemplated hereby; subject to the
approval of the Brounley Stockholders and compliance with state and federal
corporate and securities laws.
3.03 Capitalization. The authorized capitalization of Brounley consists
of 100,000 shares of common stock $1.00 par value, of which as of the date
hereof 22,222 shares are issued and outstanding. All issued and outstanding
shares of Brounley are legally issued, fully paid, and nonassessable and not
issued in violation of the preemptive or other right of any person. There are no
dividends or other amounts due or payable with respect to any of the shares of
capital
stock of Brounley.
Financial Statements.
(a) included in Schedule 3.04 are the federal and state
corporate tax rectums of Brounley for the fiscal years ended 1996 and 1997 as
well as the unaudited balance sheet and income statement prepared by management
~
Brounley for the period ending August 31, 1998.
(b) The financial statements of Brounley present fairly, as of
their respective dates, the financial
position of Brounley. Brounley did not have, as of the date of any such balance
sheets, except as and to the extent reflected or reserved against therein, any
liabilities or obligations (absolute or contingent) which should be reflected i~
any financial statements or the notes thereto and all assets reflected therein
present fairly the assets of Brounley.
(c) Brounley has filed or will have filed as of the Closing Date all tax returns
required to be filed by it from inception to the Closing Date. All such returns
and reports are accurate and correct in all material respect Brounley has no
material liabilities with respect to the payment of any federal, state, county,
local, or other taxes (including any deficiencies, interest, or penalties)
accrued for or applicable to the period ended on the date of the most recent
unaudited balance sheet of Brounley, except to the extent reflected on such
balance sheet and adequately provide for, and all such dates and years and
periods prior thereto and for which Brounley may at said date have been liable ~
its own right or as transferee of the assets of, or as successor to, any other
corporation or entity, except for taxes accrued: but not yet due and payable,
and to Brounley's knowledge no deficiency assessment or proposed adjustment of
any such tax return is pending, proposed or contemplated. Proper and accurate
amounts of taxes have been withheld by or on behalf of Brounley with respect to
all material compensation paid to employees of Brounley for all periods ending
on or before the date hereof, and all deposits required with respect to
compensation paid to such employees have beet made, in complete compliance with
the provisions of all applicable federal, state, and local tax and other laws.
T~ Brounley's knowledge, none of such income tax returns has been examined or is
currently being examined by the Internal Revenue Service, and no deficiency
assessment or proposed adjustment of any such return is pending, proposed or
contemplated. Brounley has not made any election pursuant to the provisions of
any applicable tax laws (other the elections that relate solely to methods of
accounting, depreciation, or amortization) that would have a material adverse
affect on Brounley, its financial condition, its business as presently conducted
or proposed to be conducted, or any of its properties or material assets. There
are no tax liens upon any of the assets of Brounley. There are no outstanding
agreements or waivers extending the statutory period of limitation applicable to
any tax return of Brounley.
3.05 Outstanding Warrants and Options. Brounley has no issued warrants
or options, calls, or commitments of any nature relating to the authorized and
unissued Brounley Common Stock.
3.06 Information. The information concerning Brounley set forth in this
Agreement and in the schedules delivered by Brounley pursuant hereto is complete
and accurate in all material respects and does not contain any statement of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not misleading.
Brounley shall cause the schedules delivered by Brounly pursuant hereto to TTL
hereunder to be updated after the date hereof up to and including the Closing
Date.
3.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement since the date of the most recent Brounley balance sheet described in
Section 3.04 and included in the information referred to in Section 3.OC:
(a) There has not been (i) any material adverse change in the business,
operations, properties level of inventory, assets, or condition of Brounley or
(ii) any damage, destruction, or loss to Brounley materially adversely affecting
the business, operations, properties, assets, or conditions of Brounley; and
(b) Brounley has not (i) amended its articles of incorporation or bylaws; (ii)
declared or made, or agreed to declare or make, any payment of dividends or
distributions of any assets of any kind whatsoever to stockholders or purchased
or redeemed, or agreed to purchase or redeem, any of its capital stock; (iii)
waived any rights of value which in the aggregate are extraordinaly and material
considering the business of Brounley; (iv) made any material change in its
method of accounting; (v) entered into any other material transactions other
than those contemplated by this Agreement; (vi) made any material accrual or
material arrangement for or payment of bonuses or special compensation of any
kind or any severance or termination pay to any present or former officer or
employee; or (vii) made any material increase in any profit-sharing, bonus,
deferred compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement made to, for, or with their officers, directors,
or employees; and
(c) Brounley has not (i) granted or agreed to grant any options, warrants, or
other rights for its stocks, bonds, or other corporate securities calling for
the issuance thereof, (ii) borrowed or agreed to borrow any funds or incurred,
or become subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent) other
than current liabilities reflected in or shown on the most recent Brounley
balance sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or transfer, any
of its material assets, properties, or rights, or agreed to cancel, any material
debts or claims; (v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such amendment or
termination is material, considering the business of Brounley; or (vi) issued,
delivered, or agreed to issue or deliver any stock, bonds, or other corporate
securities including debentures (whether authorized and unissued or held as
treasury stock); and
(d) To the best knowledge of Brounley, it has not become subject to any law or
regulation which materially and adversely affects, or in the future would be
reasonably expected to adversely affect, the business, operations, properties,
assets, or condition of Brounley.
3.08 Title and Related Matters. Except as provided herein or disclosed in the
most recent Brounley balance sheet of its properties, inventory, interests in
properties, technology, whether patented or unpatented and assets, which are
reflected in the most recent Brounley balance sheet or acquired after that date
(except properties, interests in properties, and assets sold or otherwise
disposed of since such date in the ordinary course of business), free and clear
of all mortgages, liens, pledges, charges, or encumbrances, except (i) statutoly
liens or claims not yet delinquent, and (ii) such imperfections of title and
easements as do not, and will not, materially detract from or interfere with,
the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business e operations on such
properties. To the best knowledge of Brounley, its technology does not infringe
on the copyright, patent, trade secret, know-how, or other proprietary right of
any other person or entity and comprises all such rights necessary to permit the
operation of the business of Brounley as now being conducted or as contemplated.
3.09 Litigation and Proceedings. There are no material actions, suits, or
proceedings pending or, to the knowledge of Brounley, threatened by or against
Brounley or adversely affecting Brounley, at law or in equity, before any court
or other govemmental agency or instrumentality domestic or foreign, or before
any arbitrator of any kind Brounley does not have any knowledge of any default
on its part with respect to any judgment, order, writ, injunction decree, award,
rule, or regulation of any court, arbitrator, or govemmental agency or
instrumentality.
3.10 Material Contract Defaults. Brounley is not in default in any material
respect under the terms of outstanding contract, agreement, lease, or other
commitment which is material to the business, operations, assets, or condition
of Brounley, and there is no event of default or other event which, with notice
or lapse of time or both, would constitute a default in any material respect
under any such contract, agreement, lease, or other commitment in respect of
which Brounley has not taken adequate steps to prevent such a default from
occuring.
3.11 No Conflict with other Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision or, or constitute an event of default
under, any material indenture, mortgage, deed of trust, or other material
contract, agreement, or instrument to which Brounley is a party or to which any
of its properties or operations are subject.
3.12 Govemmental Authorizations. Brounley has all licenses, franchises, permits,
and other govemmental authorizations that are legally required to enable it to
conduct its business in all material respects as conducted on the date of this
Agreement. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent,
or order of, or registration, declaration, or filing with, any court or other
governmental body is required in connection with the execution and delivery by
Brounley of this Agreement and the consummation by Brounley of the transactions
contemplated hereby.
3.13 Compliance With Laws and Regulations. Brounley has complied with all
applicable statutes and regulations of any federal, state, or other govemmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets, or
condition of Brounley or except to the extent that noncompliance would not
result in the occurrence of any material liability for Brounley. To the best
knowledge of Brounley, the consummation of this transaction will comply with all
applicable statutes and regulations, subject to the preparation and filing of
any forms required by state and federal security laws.
3.14 Subsidiary. Brounley does not own, beneficially or of record, any equity
securities in any other entity.
3.15 Brounley Schedules. Brounley has delivered to TTL the following schedules,
which are collectively ~ referred to as the "Brounley Schedules" and which
consist of the following separate schedules dated as of the date of :i execution
of this Agreement, and instruments and TTL as of such date, all certified by the
chief executive officer of Brounley as complete, true, and accurate:
(a) A schedule including copies of the articles of incorporation and bylaws of
Brounley and all amendments thereto in effect as of the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of Brounley approving this Agreement and the transactions herein
contemplated as referred to in Section 3.02:
(c) A Schedule setting forth a description of any material adverse change in the
business, operations, property, inventory, assets, or condition of Brounley
since the most recent Brounley balance sheet, required to be provided pursuant
to Section 3.04 hereof,
(d) A schedule setting forth the financial statements required pursuant to
Section 3.01al hereof,
(e) A schedule setting forth any other information, together with any required
copies of documents, required to be disclosed in the Brounley Schedules by
Sections 3.01 through 3.14.
Brounley shall cause the Brounley Schedules and the instruments
delivered to TTL hereunder to be updated after the date hereof up to and
including a specified date not more than three business days prior to the
Closing Date. Such updated Brounley Schedules, certified in the same manner as
the original Brounley Schedules, shall be delivered prior to and as a condition
precedent to the obligation of TTL to close.
ARTICLE IV CONDITIONS PRECEDENT TO OBLIGATIONS OF BROUNLEY
The obligations of Brounley under this Agreement are subject to the satisfaction
of Brounley, at or before the Closing Date, of the following conditions.
4.01 Shareholder Approval. TTL shall obtain the written consent of a majority of
its stockholders to approve the transactions contemplated by this Agreement,
including the acquisition of Brounley through the issuance of TTL common stock
for all of the issued and outstanding Shares. Said written consent shall be
provided to Brounley at closing.
4.02 Accuracy of Representations. The representations and warranties made by TTL
in this Agreement were true when made and shall be true at the Closing Date with
the same force and affect as if such representations and warranties were made at
and as of the Closing Date (except for changes therein permitted by this
Agreement), and TTL shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by TTL
prior to or at the Closing. Brounley shall be furnished with certificates,
signed by duly authorized officers of TTL and dated the Closing Date, to the
foregoing effect.
4.03 Officer's Certificates. Brounley shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
executive officer of TTL to the effect that to such officers best knowledge no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of TTL threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement
Furthermore, based on certificates of good standing, representations of
government agencies, and TTL's own documents and information, the certificate
shall represent, to the best knowledge of the officer, that:
(a) This Agreement has been duly approved by TTL's board of directors and
stockholders and has been duly executed and delivered in the name and on behalf
of and by its duly authorized officers pursuant to, and in compliance with,
authority granted by the board of directors of TTL pursuant to a unanimous
consent;
(b) There have been no material adverse changes in TTL up to and including the
date of the certificate;
(c) All conditions required by this Agreement have been met, satisfied, or
performed by TTL;
(d) All authorizations, consents, approvals, registrations, and/or filings with
any govemmental body agency, or court required in connection with the execution
and delivery of the documents by 7TL have been obtained and are in full force
and effect or, if not required to have been obtained, will be in full force and
effect by such time as may be required; and TTL.
(e) There is no material action, suit, proceeding, inquily, or investigation at
law or in equity by any public board or body pending or threatened against TTL,
wherein an unfavorable decision, ruling, or finding could have an adverse effect
on the financial condition of TTL, the operation of TTL, or the acquisition and
reorganization contemplated herein, or any agreement or instrument by which TTL
is bound or in any way contests the existence of TTL.
4.04 No Material Adverse Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business, or
operations of TTL, nor shall any event have occurred which, with the lapse of
time or the giving of notice, may cause or create any material adverse change in
the financial condition, business, or operations of TTL.
4.05 Good Standing. Brounley shall have received a certificate of good standing
from the secretary of the State of Florida, certifying that TTL is in good
standing as a corporation in the State of Florida.
4.06. Other Items. Brounley shall have received such further documents,
certificates, or instruments relating to the transactions contemplated hereby as
Brounley may reasonably request.
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF TTL
The obligations of tTL under this Agreement are subject to the satisfaction, at
or before the Closing Date, of the following conditions:
5.01 Shareholder Approval. TTL shall obtain through a majority written consent
of its stockholders authorization and approval for this Agreement and the
transactions contemplated hereby.
5.02. Brounlev Stockholders. Holders of all of the issued and outstanding
Brounley Shares shall agree to this Agreement and the exchange of shares
contemplated by this Agreement.
5.03 Accuracy of Representations. The representations and warranties made by
Brounley and the Brounley Stockholders in this Agreement were correct when made
and shall be true at the Closing Date with the same force and affect as if such
representations and warranties were made at and as of the Closing Date (except
for changes therein " permitted by this Agreement), and Brounley shall have
performed or compiled with all covenants and conditions required by this
Agreement to be performed or complied with by Brounley prior to or at the
Closing. TTL shall be! furnished with a certificate, signed by a duly authorized
officer of Brounley and dated the Closing Date, to the foregoing effect.
5.04 Officer's Certificates. TTL shall have been furnished with certificates
dated the Closing Date and signed by the duly authorized chief operating officer
of Brounley to the effect that no litigation, proceeding, investigation, or
inquiry is pending or, to the best knowledge of Brounley, threatened, which
might result in an action ~ to enjoin or prevent the consummation of the
transactions contemplated by this Agreement. Furthermore, based on; certificates
of good standing, representations of government agencies, and Brounley's own
documents, the certificate shall represent, to the best knowledge of the
officer, that:
(a) This Agreement has been duly approved by Brounley's board of directors and
stockholders; and has been duly executed and delivered in the name and on behalf
of Brounley by its duly authorized officers pursuant to, and in compliance with,
authority granted by the board of directors of Brounley pursuant to a unanimous
consent ~ of its board of directors and a majority vote of its stockholders;
(b) Except as provided or permitted herein, there hae been no material adverse
changes in Brounley up to and including the date of the certificate;
(c) All authorizations, consents, approvals, registrations, and/or filing with
any governmental, body, agency, or court required in connection with the
execution and delivery of the documents by Brounley have been obtained and are
in full force and effect or, if not required to have been obtained will i be in
full force and effect by such time as may be required; and
(d) There is no material action, suit, proceeding, inquiry, or investigation at
law or in equity by any public board or body pending or threatened against
Brounley, wherein an unfavorable decision, ruling, or finding would have an
adverse affect on the financial condition of Brounley, the operation of
Brounley, or the acquisition and reorganization contemplated herein, or any
material agreement or instrument by which Brounley is bound or would in any way
contest the existence of Brounley.
5.05 No Material Adverse Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of Brounley, nor shall any event have occurred which, with the lapse
of time or the giving of notice, may cause of create any material adverse change
in the financial condition business, or operations of Brounley.
5.06 Good Standing. TTL shall have received a certificate of good standing from
the appropriate authority in the State of Florida, dated as of a date with five
days prior to the Closing Date, certifying that the Brounley is in good standing
as a corporation in the State of Florida.
5.07. Other Items. TTL shall have received such further documents certificates
or instruments relating to the transactions contemplated hereby as TTL, may
reasonably request.
ARTICLE V1 SPECIAL COVENANTS
6.01 Activities of TTL and Brounlev.
(a) From and after the date of this Agreement until the Closing Date and except
as set forth in the respective schedules to be delivered by TTL and Brounley
pursuant hereto or as permitted or contemplated by this Agreement, TTL and
Brounley will each:
(i) Carry on its business in substantially the same manner as it has heretofore;
(ii) Maintain in full force and effect insurance comparable in amount and in
scope ofcoverage to that now maintained by it;
(iii) Perform in all material respects all of the obligations under material
contracts, leases and instruments relating to or affecting its assets,
properties, and business;
(iv) Use its best efforts to maintain and preserve it business Organization
intact, to retain its key employees, and to maintain its relationships with its
material suppliers and customers;
(v) Duly and timely file for all taxable periods ending on or prior to the
Closing all federal, state, county, and local tax returns required to be filed
by or on behalf of such entity or for which such entity as may be held
responsible and shall pay, or cause to pay, all taxes required to be shown as
due and payable on such returns, as well as all installments of tax due and
payable during the period commencing on the date of this Agreement:and ending on
the Closing Date; and
(vi) Fully comply with and perform in all material respects all obligations and
duties imposed on it by all federal and state laws and all rules, regulations,
and orders imposed by federal or state governmental authorities.
(b) From and after the date of this Agreement and except as provided herein
until the Closing Date, TTL and Brounley will not:
(i) Make any change in its articles of incorporation or bylaws;
(ii) Enter into or amend any material.contracts, agreement, or other instrument
of any of the types described in such party's schedules, except that a party may
enter into or amend any contract, agreement, or other instrument in the ordinary
course of business; and Enter into any agreement far the sale of Brounley
securities without the prior approval of the other party.
6.02 Access to Properties and Records Until the Closing Date, Brounley and TTL
will afford to the other party's officers and authorized representatives full
access to the properties, books, and records of the other party in order that
each party may have full opportunity to make such reasonable investigation as it
shall desire to make of the affairs of Brounley or TTL and will furnish the
other party with such additional financial and other information as to the
business and properties of Brounley or TTL as each party shall from time to time
reasonably request.
6.03 Indemnification bv Brounley. Brounley will indemnify and hold harmless
TTL and its directors and Officers, and each person, if any, who controls within
the meaning of the Securities Act, from and against any and all losses, claims,
damages, expenses, liabilities, or actions to which any of them may become
subject under applicable law (including the Securities Act and the Securities
Exchange Act) and will reimburse them for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any claims or
actions, whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities, or actions arise out of or are based upon any
untrue statement or alleged untrue statement of material fact contained in any
application or statement file with a govemmental body or arising out of or are
based upon the omission or alleged omission to state therein a material: fact
required to be stated therein, or necessary in order to make the statements
therein not misleading, but only insofar as any such statement or omission was
made in reliance upon and in conformity with information furnished in writing by
Brounley expressly for use therein. The indemnity agreement shall remain in full
force and effect, regardless of any investigation made by or on behalf of TTL
and shall survive consummation of the transactions contemplated by this
Agreement for a period of one year.
6.04 Indemnification bv TTL. . TTL will indemnify and hold harmless Brounley and
its directors and Officers, and each person, if any, who controls within the
meaning of the Securities Act, from and against any and all losses, claims,
damages, expenses, liabilities, or actions to which any of them may become
subject under applicable law (including the Securities Act and the Securities
Exchange Act) and will reimburse them for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any claims or
actions, whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities, or actions arise out of or are based upon any
untrue statement or alleged untrue statement of material fact contained in any
application or statement file with a govemmental body or arising out of or are
based upon the omission or alleged omission to state therein a material: fact
required to be stated therein, or necessary in order to make the statements
therein not misleading, but only insofar as any such statement or omission was
made in reliance upon and in conformity with information furnished in writing by
TTL expressly for use therein. The indemnity agreement shall remain in full
force and effect, regardless of any investigation made by or on behalf of
Brounley and shall survive consummation of the transactions contemplated by this
Agreement for a period of one year.
6.05 The Acauisition of TTL Common Stock. TTL and Brounley understand and agree
that the consummation of this Agreement including the issuance of the TTL Common
Stock to Brounley in exchange for the Brounley Shares as contemplated hereby,
constitutes the offer and sale of securities under the Securities Act and
applicable state statutes. TTL and Brounley agree that such transactions shall
be consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, among other items, on the
circumstances under which such securities are acquired.
(a) In order to provide documentation for reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions, the
signing of this Agreement and the delivery of appropriate separate
representations shall constitute the parties acceptance of, and concurrence in,
the following representations and
(i) The Brounley Stockholders acknowledge that neither the SEC nor the
securities commission of any state or other federal agency has made any
determination as to the merits of acquiring TTL Common Stock, and that this
transaction involves certain risks.
(ii) Brounley Shareholders have such knowledge and experience in business and
financial matters that they are capable of evaluating such business risks.
(iii) All information which the Brounley Stockholders have provided to TTL or
the representatives concerning their suitability and intent to hold shares in
TTL following the transactions contemplated hereby is complete accurate and
correct.
(iv) The Brounley Stockholders understand that the TTL Common Stock has not been
registered, , but is being acquired by reason of a specific exemption under the
Securities Act as well as under certain statr statutes for transactions not
involving any public offering and that any disposition of the subject TTL Common
Stock: may, under certain circumstances, be inconsistent with this exemption and
may make Brounley or TTL an underwriter within the meaning of the Securities
Act. It is understood that the definition of "underwriter" focuses upon the
concept of "distribution" and that any subsequent disposition of the subject TTL
Common Stock can only be effected iin transactions which are not considered
distributions. Generally, the term "distribution" is considered synonymous with
"public offering" or any other offer or sale involving general solicitation or
general advertising. Under present law, in determining whether a distribution
occurs when securities are sold into the public market, under certain
circumstances one must consider the availability of public information regarding
the issuer, a holding period for the securities sufficient to assure that the
persons desiring to sell the securities without registration first bear the
economic risk of their investment, and a limitation on the number of securities
which the stockholder is permitted to sell and on the manner of sale, thereby
reducing the potential impact of the sale on the trading markets. These criteria
are set forth specifically in rule 144 promulgated under the Securities Act,
and, afer one year after the date the TTL Common Stock or Brounley Shares is
fully paid for, as calculated in accordance with rule 144(d) sales of securities
in reliance upon rule 144 can; only be made in limited amounts in accordance
with the terms and conditions of that rule. After two years from the date the
securities are fully paid for, are calculated in accordance with rule 144(d) may
can generally be sold without meeting those conditions, provided the holder is
not (and has not been for the preceding three months) an affiliate of the
issuer.;
(v) The Brounley Stockholders acknowledge that the shares of TTL Common Stock
must be held and may not be sold, transferred, or otherwise disposed of for
value unless they are subsequently registered under the Securities Act or an
exemption from such registration is available. TTL is not under any obligation
to registered the TTL Common Stock under the Securities Act except as stated in
this Agreement. If rule 144 is available after one year and prior to two years
following the date the shares are fully paid for, only routine sales of such TTL
Common Stock in limited amounts can be made in reliance upon rule 144 in
accordance with the terms and conditions of that rule TTL is not under any
obligation to make rule 144 available except as set forth in this Agreement and
in the event rule 144 is not available, compliance with Regulation A or some
other disclosure exemption may be required before Brounley Stockholders can
sell, transfer, or otherwise dispose of such TTL Common Stock without
registration under the Securities Act. Subject to compliance with federal and
state securities laws, TTL's registrar and transfer agent will maintain a stop
transfer order against the registration of transfer of the TTL Common Stock held
by Brounley; Stockholders and the certificates representing the TTL Common Stock
will bear a legend in substantially the following form so restricting the sale
of such securities:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED i UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT3 AND ARE "RESTRICTED
SECURITIES" WITHTN THE MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT.
THE SECURITIES HAVE BEEN ACQUIRED FOR:: INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER UNDER THE SECURITlES ACT.
(vi) TTL. will require Brounley Stockholder to provide an opinion of counsel
reasonably acceptable to TTL stating that the transfer is proper. TTL agrees to
provide Brounley with assistance and cooperation in good faith when Brounley
seeks to sell any shares which are free from restrictions or exempt therefrom
(b) In connection with the transactions contemplated by this Agreement, TTL
shall file with the assistance of its legal counsel, such notices, applications,
reports, or other instruments as may be deemed by it be necessary or appropriate
in an effort to document reliance on such exemptions, and with the appropriate
regulatory authority in the states where the Brounley Stockholders reside unless
an exemption requiring no filing is available in such jurisdictions, all to the
extent and in the manner as may be deemed by TTL to be appropriate.
(c) The Brounley Stockholders acknowledge that the basis for relying on
exemptions from registration or qualifications are factual, depending on the
conduct of the various parties, and that no legal opinion order other assurance
will be required or given to the effect that the transactions contemplated
hereby are in fact exempt from registration or qualification.
6.06 Securities Filings. TTL shall be responsible for the preparation and filing
of any required forms, or documents, deemed necessary by TTL and its legal
counsel, with the Securities and Exchange Commission and in jurisdiction which
would require a filing with a govemmental agency as a result of the transactions
contemplated in this Agreement.
6.07 Sales of Securities Under Rule 144 if Applicable.
(a) TTL will use its best efforts to at all times satisfy the current public
information requirements of rule 144 promulgated under the Securities Act so
that its stockholders can sell restricted securities that have been held for one
year or more or such other restricted period as required by rule 144 as it is
from time to time amended.
(b) Upon being informed in writing by any person holding restricted stock of TTL
as of the date of this Agreement that such person intends to sell any shares
under rule 144 promulgated under the Securities Act (including any rule adopted
in substitution or replacement thereof), TTL will certify in writing to such
person that it is in compliance with rule 144 current public information
requirements to enable such person to sell such person's restricted stock under
rule 144, as may be applicable under the circumstances.
(c) If any certificate representing any such restricted stock is presented to
TTL's transfer agent for registration or transfer in connection with any sales
theretofore made under rule 144, provided such certificate is duly endorsed for
transfer by the appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with reasonable
assurances that such endorsements are genuine and effective, and is accompanied
by an opinion of counsel satisfactory to TTL and its counsel that such transfer
has complied with the requirements of rule 144, as the case may be, TTL will use
its best efforts to cooperate with the shareholder and/or transfer agent with
the registration or transfer in connection with any sales made under rule 144.
ARTICLE VII MISCELLANEOUS
7.01 Brokers. The Brounley Stockholders have agreed to issue 45,000 shares of
their TTTL Common Stock to certain finders in this transaction. Except as
provided herein, TTL and Brounley agree that there were no other finders or
brokers involved in bringing the parties together or who were instrumental in
the negotiation, execution, or consummation of this Agreement. Further, TTL and
Brounley each agree to indemnify the other against any claim by any third person
for any commission, brokerage, or finder's fee or other payment with respect to
this Agreement or the transactions contemplated hereby based on any alleged
agreement or understanding between such party and such third person, whether
express or implied, from the actions of such party.
The covenants set forth in this section shall survive the Closing Date and the
consummation of the transactions herein contemplated.
7.02 No Representation Regarding Tax Treatment. No representation or warranty is
being made by any party to any other regarding the treatment of this transaction
for federal or state income taxation. Each party has relied exclusively on its
own legal, accounting, and other tax adviser regarding the treatment of this
transaction for federal and state income taxes and on no representation,
warranty, or assurance from any other party or such other party's legal,
accounting, or other adviser.
7.03. Governing Law. This Agreement shall be governed by, enforced and construed
under and in accordance with the laws of the State of Florida.
7.04 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently ~ given if personally delivered, if sent by
facsimile or telecopy transmission or other electronic communication confirmed ~
by registered or certified mail, postage prepaid, or if sent by prepaid
overnight courier addressed as follows:
If to TTL: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Brounley, to: ▇▇▇▇ ▇▇▇'▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other addresses as shall be furnished in writing by any party any such
notice or communication shall be deemed to have been given as of the date so
delivered or sent by facsimile or telecopy transmission or other electronic
communication, or one day after the date so sent by overnight courier.
7.05 Attorney Fees. In the event that any party institutes any action or suit to
enforce this Agreement or to secure relief from any default hereunder or breach
hereof, the breaching party or parties shall reimburse the nonbreaching party or
parties for all costs, including reasonable attomeys' fees, incurred in
connection therewith and in enforcing or collecting any judgment rendered
therein.
7.06 Schedules. Knowledge. Whenever in any section of this Agreement reference
is made to information set forth in the schedules provided by TTL or Brounley
such reference is to information specifically set forth in such I schedules and
clearly marked to identify the section of this Agreement to which the
information relates. Whenever any, representation is made to the "knowledge" of
any party, it shall be deemed to be a representation that no officer or director
of such party, after reasonable investigation, has any knowledge of such
matters.
7.07 Entire Agreement. This Agreement represents the entire agreement between
the parties relating to: the subject matter hereof All previous agreements
between the parties, whether written or oral, have been merged into, this
Agreement. This Agreement alone fully and completely expresses the agreement of
the parties relating to the subject matter hereof. There are no other courses of
dealing, understandings, agreements, representations, or warranties, written or
oral, except as set forth herein.
7.08 Survival: Termination. The representations, warranties, and covenants of
the respective parties shall survive the Closing Date and the consummation of
the transactions herein contemplated for a period of six months from the Closing
Date, unless otherwise provided herein.
7.09 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which taken together shall be
but a single instrument.
7.10 Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and such remedies may be enforced concurrently, and no waiver by
any party of the performance of any obligation by the other shall be construed
as a waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this Agreement may
be amended by a writing signed by all parties hereto, with respect to any of the
terms contained herein and any term or condition of this Agreement may be waived
or the time for performance thereof may be extended by a writing signed by the
party or parties for whose benefit the provision is intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be executed by their respective officers, hereunto duly authorized, as of the
date first above written.
▇▇▇▇▇ TECHNOLOGY LICENSING, INC. BROUNLEY ASSOCIATES, INC.
a Florida Corporation a Florida Corporation
By: S/S ▇▇▇▇ ▇. ▇▇▇▇▇ By: S/S ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President Vice President
executed September 30, 1998