Exhibit 10.6
STOCK EXCHANGE AGREEMENT
AND PLAN OF REORGANIZATION
This Stock Exchange Agreement (the "Agreement") is made and entered into in Boca
Raton, Florida as of February , 2006 , to be effective December 31, 2005, by and
among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ 46131("▇▇▇▇▇▇▇▇▇▇"),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇"), and Juniper Group,
Inc., a Nevada corporation having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("JUNI");New Wave Communication Inc, a Indiana
corporation having an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Company"); and Juniper Services, Inc., a wholly owned subsidiary of JUNI having
its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Purchaser"). ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ are some times referred to
herein collectively as the "Seller".
W I T N E S S E T H:
WHEREAS, Seller owns and desires to transfer, assign and convey to Purchaser one
hundred percent (100%) of the issued and outstanding shares (the "Shares") of
capital stock of the Company, and Purchaser desires to acquire such Shares from
Seller;
WHEREAS, Seller is willing to exchange monies and the Shares with Purchaser in
return for receiving shares of the voting common stock of JUNI pursuant to a
plan of reorganization intended to qualify as a tax-free exchange of stock in
accordance with the provisions of Internal Revenue Code Section 368(a)(1)(B);
and
WHEREAS, the Company, JUNI, and the Purchaser have all adopted and are parties
to a plan of reorganization whereby the Shares will be exchanged for the JUNI
Shares upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the respective representations and
warranties hereinafter set forth and of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE I DEFINITIONS
As used herein, the following terms shall have the following meanings:
1.1 "Assets" shall mean:
(a) all cash of the Company on hand, in any bank, money market account,
mutual fund, unit investment trust, and all certificates of deposit, letters of
credit in favor of the Company and all other readily marketable securities or
other cash equivalents of the Company all as described in Schedule 1.1 (a)
hereto;
(b) all accounts receivable, notes receivable and other rights to receive
payments from customers of the Company, all as described in Schedule 1.1 (b)
hereto (the "Receivables");
(c) all equipment, vehicles, furniture and fixtures, and all other fixed
assets owned or leased by the Company, constituting all such items necessary for
the continued operation of the Company's business, as described on Schedule
1.1(c) hereto (the "Fixed Assets");
(d) all rights and benefits under all contracts, agreements, leases,
licenses, purchase commitments and sales orders to which the Company are a party
(collectively, the "Contracts"), constituting all such Contracts which are
necessary or beneficial to the operation of the Company's business, all set
forth on Schedule 1.1(d) annexed hereto;
(e) all patents, patent rights, copyrights, trademarks, trademark rights,
tradenames, tradename rights and patent, copyright or trademark applications,
which the Company owns, all set forth on Schedule 1.1(e) annexed hereto, and all
ideas, know-how, trade secrets, inventions, technology, designs and any other
proprietary rights which the Company owns including, but not limited to, the
Company's website as shown on Schedule 3.2(k);
(f) any and all other assets of the Company not described above and
included on the Balance Sheet (as hereinafter defined).
1.2 "Liabilities" shall mean all accounts payable, notes payable, bank
loans payable, and other obligations (including any and all loan obligations,
obligations under letters of credit or guarantees, purchase orders, UCC filings
or payments due vendors, customers and others) as described in Schedule 1.2
annexed hereto.
1.3 "Balance Sheet" shall mean the balance sheet of the Company at December
31, 2005, included as part of the Financial Statements (as hereinafter defined).
1.4 The "Effective Date" or the "Closing Date" shall mean on or before
March 28, 2006.
1.5 "Financial Statements" shall mean certified financial statements by
Independent auditors that shall comply with PCOAB, which shall include the
balance sheet of the Company at December 31, 2005, December 31, 2004, and the
income statement of the Company the statement of cash flow and the statement of
changes in shareholder equity along with appropriate financial statements
prepared in accordance with generally accepted accounting principles ("GAAP") on
an accrual basis for the twelve months ended December 31, 2005 and December 31,
2004 attached to this Agreement as Schedule 1.5, including unaudited financial
statements for periods ending February 28,2006 attached to this Agreement as
Schedule 1.5 A.
1.6 The "Shares" shall mean all of the issued and outstanding shares of
common stock, no par value, of the Company.
1.7 INTENTIONALLY LEFT BLANK
1.8 INTENTIONALLY LEFT BLANK
1.9 The "Leasing Agreement" shall mean the Lease Agreement dated , by and
between and the Company in the form attached hereto as Exhibit C.
ARTICLE II
SALE AND PURCHASE OF SHARES
2.1 Exchange of Shares. Subject to the terms and conditions contained
herein, Seller hereby agrees to transfer, assign, convey and deliver to
Purchaser, and Purchaser hereby agrees to accept from Seller, all of its right,
title and interest in and to the Shares, free and clear of any liens, pledges,
security interests, claims or encumbrances of any kind. The Shares shall be
delivered to the Purchaser as follows:
(a) Upon execution of the fully executed Stock Exchange Agreement
hereof, the Seller shall each deliver one hundred (100% ) percent of
their Shares;
The consideration payable by Purchaser for monies and the Shares to be
transferred to Purchaser as provided herein shall be as follows:
(1) $25,000 was paid by Purchaser to Seller on January 5,2006 pursuant to
the Term Sheet dated December 21,2005 ; and
(2) $100,000 upon receipt of audited financial statement for period ending
December 31, 2004 and December 31, 2005 and the fully execution of this
Stock Exchange Agreement and Plan of Organization upon acceptance of the
$100,000 this transaction shall be deemed closed.
(3) $100,000 ninety (90) days from the date of signing the fully executed
Stock Exchange Agreement and Plan of Reorganization; and
(4) $592,000 in Juni securities at the earlier of (1) forty-five (45) days
after the last conversion of 8% Callable Secured Notes dated December
28,2005 (which the Purchaser shall notify the Seller) or (2) twelve (12)
months after the effectiveness of the registration statement filed with SEC
on February 10,2006 (herein, the "lock-up period"). The amount due of
$592,000 shall be convertible, into such number of fully paid and
non-assessable shares of common stock of Juni determined by dividing (x)
$592,000, by (Y) the Conversion Price that shall be based on the average of
the closing after ten (10) days immediately prior to the notice of
conversion exercised by Seller. The converted shares shall be the exchange
of shares of voting Common Stock, $.001 par value, of JUNI (all such shares
to be received by Seller under this Article II shall be referred to as the
"JUNI Shares").
2.1.1 & 2. INTENTIONALLY LEFT BLANK
2.2.1 Thirty-three (33%) percent of Juni shares and monies delivered shall
be paid and issued to ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, and thirty-four (34%) percent
of the Juni shares or monies delivered shall be paid and issued to ▇▇▇▇▇▇▇
under section 2.1.
2.2.2 INTENTIONALLY LEFT BLANK
2.2.3 INTENTIONALLY LEFT BLANK
2.2.4 INTENTIONALLY LEFT BLANK
2.2.5 All JUNI Shares and monies issued under this Article II shall be
deemed to be in consideration for delivery of the Sellers' shares.
Notwithstanding anything to the contrary contained herein, in no event and
under no circumstances shall ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ be entitled to
received hereunder more than nineteen (19%) percent of JUNI's Shares of
outstanding common stock.
2.2.6 INTENTIONALLY LEFT BLANK
ARTICLE III
EFFECTIVE DATE; CLOSING; CONDITIONS TO CLOSING; DELIVERIES
3.1 Effective Date and Closing. The Effective Date of this transaction
shall be deemed to be as of December 31, 2005. The closing date shall be deemed
upon execution by all parties of this Agreement, receipt of audited financial
statement by ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇, CPA's.
3.2 Conditions to Purchaser's Obligation. Purchaser's and JUNI's
obligations hereunder are subject to the satisfaction of the following
conditions, any of which may be waived, in whole or in part, by Purchaser and/or
JUNI in their sole discretion, and Seller shall use their best efforts to cause
such conditions to be fulfilled:
(a) Representations and Warranties Correct; Performance of Covenants;
Satisfaction of Conditions. The representations and warranties of ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ in this Agreement (including the Exhibits and Schedules
hereto) and those otherwise made in writing by or on behalf of Seller in
connection with the transactions contemplated by this Agreement shall be true,
complete and accurate when made. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall have duly
and properly performed, complied with, satisfied and observed each of their
respective covenants, agreements, conditions to closing and obligations
contained in this Agreement to be performed, complied with, satisfied and
observed on or before the date hereof, and ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall
have delivered to Purchaser a certificate signed by them and dated as of the
date hereof to such effect.
(b) Purchase Permitted by Applicable Laws. The exchange of JUNI Shares for
the Shares of the Seller to be transferred to Purchaser hereunder shall not be
prohibited by any applicable law or governmental regulation and shall not
subject Purchaser to any fine or penalty under or pursuant to any applicable law
or governmental regulation.
(c) Proceedings; Receipt of Documents. All corporate and other proceedings
taken or required to be taken by Seller in connection with the transactions
contemplated hereby and all documents incident thereto shall have been taken and
shall be reasonably satisfactory in form and substance to Purchaser and its
counsel, and Purchaser shall have received all such information and such
counterpart originals or certified or other copies of such documents as
Purchaser may reasonably request.
(d) Delivery of Documents by the Seller. Seller shall have delivered, or
caused to be delivered, to Purchaser the following:
(1) Corporate and tax good standing certificates of the Company from the
respective jurisdictions in which the Company is incorporated or
transacts business;
(2) The Shares, with duly executed stock powers and all other documents
and signatures necessary or appropriate for their transfer to
Purchaser free and clear by delivery;
(3) Certified copies of the Certificate of Incorporation and By-Laws of
the Company;
(4) INTENTIONALLY LEFT BLANK AND EXHIBIT D;
(5) the written resignations of each and every officer and director of the
Company and all documents necessary to elect or appoint Purchaser's
nominees to such positions effective as of the time that all Shares of
the Company have been delivered by the Seller in the form annexed
hereto as Exhibit "E";
(6) all documents necessary or appropriate to change the authorized
signatories of all Company bank accounts and to otherwise take
possession and full operational control of the Company and its assets,
effective as of the time that all Shares of the Company have been
delivered;
(7) all other consents, agreements, schedules, documents and exhibits
required by this Agreement to be delivered by Seller, or reasonably
requested by Purchaser, in order to effectuate the Closing; and
(8) INTENTIONALLY LEFT BLANK.
(e) No Adverse Decision. There shall be no action, suit, investigation or
proceeding pending or threatened by or before any court, arbitrator or
administrative or governmental body which: seeks to restrain, enjoin, prevent
the consummation of or otherwise affect the transactions contemplated by this
Agreement; questions the validity or legality of any such transactions; or seeks
to recover damages or to obtain other relief in connection with any such
transactions.
(f) INTENTIONALLY LEFT BLANK
(g) Due Diligence. The Purchaser shall have completed, it's due diligence
review of the Company's operations. On or prior to February 28, 2006, the
Company shall have delivered to the Purchaser, for due diligence purposes, all
of the items listed on the Summary of Schedules annexed hereto (the "Due
Diligence Materials"). In the event that the Company does not deliver any item
by March 15, 2006, then the Purchaser's due diligence period as to that item
shall be thirty (30) days from the date of delivery.
(h) Approvals and Consents. Seller shall have duly obtained all
authorizations, consents, rulings, approvals, licenses, franchises, permits and
certificates, or exemptions therefrom, by or of all governmental authorities and
non-governmental administrative or regulatory agencies, domestic or foreign,
having jurisdiction over the Company, its assets, this Agreement, the Shares or
the transactions contemplated hereby, including, without limitation, the
consents of all third parties pursuant to existing material agreements or
instruments by which the Company or Seller may be bound, which are required for
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby on the part of the Seller and the
Company, at no cost or other adverse consequence to Purchaser, and all thereof
shall be in full force and effect as of the date hereof and Seller shall have
delivered to Purchaser a certificate signed by them and dated as of the date
hereof, to such effect.
(i) INTENTIONALLY LEFT BLANK Exhibit A.
(j) Web Site. INTENTIONALLY LEFT BLANK
(k) INTENTIONALLY LEFT BLANK OR EXHIBIT "B"
3.3 Conditions to the Obligation of the Seller. The obligation of Seller to
consummate the transactions contemplated hereby are subject to the fulfillment
of the following conditions, any of which may be waived, in whole or in part, by
the Seller in its sole discretion, and Purchaser and JUNI shall use their best
efforts to cause such conditions to be fulfilled:
(a) Representations and Warranties Correct; Performance. The
representations and warranties of Purchaser and JUNI in this Agreement shall be
true, complete and accurate when made and Purchaser and JUNI shall have
delivered to Seller a certificate signed by their respective Chief Executive
Officers, to such effect. Purchaser and JUNI shall have duly and properly
performed, complied with, satisfied and observed on or before the date hereof
each of their covenants, agreements, conditions to closing and obligations
contained in this Agreement to be performed, complied with, satisfied and
observed, and the Chief Executive Officer of Purchaser and JUNI shall have
delivered to the Seller a certificate signed by them and dated as of the date
hereof, to such effect.
(b) Purchase Permitted by Applicable Laws. The exchange of the JUNI Shares
for the Shares shall not be prohibited by any applicable law or governmental
regulation.
(c) Delivery of JUNI Shares. Purchaser shall have delivered the JUNI Shares
to Seller, free and clear of any liens, claims, or encumbrances other than the
transfer restrictions set forth in this Agreement.
(d) Approvals and Consents. Purchaser and JUNI shall have duly obtained all
authorizations, consents, rulings, approvals, licenses, franchises, permits and
certificates, or exemptions therefrom, by or of all governmental authorities and
non-governmental administrative or regulatory agencies, domestic or foreign,
having jurisdiction over Purchaser and JUNI, their assets, this Agreement, the
JUNI Shares or the transactions contemplated hereby, including, without
limitation, the consents of all third parties pursuant to existing agreements or
instruments by which Purchaser or JUNI may be bound, which are required for the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby on the part of the Purchaser and JUNI, at
no cost or other adverse consequence to Seller, and all thereof shall be in full
force and effect as of the Closing Date and the date hereof, and the Chief
Executive Officer of Purchaser and JUNI shall have delivered to Seller a
certificate signed by them dated as of the date hereof, to such effect.
(e) INTENTIONALLY LEFT BLANK AND EXHIBIT "A"
(f) INTENTIONALLY LEFT BLANK
(g) Proceedings; Receipt of Documents. All corporate and other proceedings
taken or required to be taken by Purchaser and JUNI in connection with the
transactions contemplated hereby and all documents incident thereto shall have
been taken and shall be reasonably satisfactory in form and substance to Seller
and its counsel, and Seller shall have received all such information and such
counterpart originals or certified or other copies of such documents as Seller
may reasonably request.
(h) Delivery of Documents. Purchaser and JUNI shall have delivered, or
cause to be delivered to Seller the following:
(1) An opinion of counsel from the law firm ▇▇▇▇▇▇ and ▇▇▇▇▇, who serves as
counsel to Purchaser and JUNI, in the form of that annexed hereto as Exhibit
"F";
(2) Certified copies of Resolutions adopted by the Board of Directors of
Purchaser and JUNI authorizing the transactions contemplated by this Agreement
and the issuance of the JUNI Shares; and
(3) All other consents, agreements or documents required by this Agreement to be
delivered by Purchaser or JUNI, or reasonably requested by Seller, in order to
effectuate the Closing.
ARTICLE IV
SELLER'S REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ hereby represent and warrant to, and agree with,
Purchaser and JUNI as follows:
4.1 Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Indiana and is in good standing as a foreign corporation in each other
jurisdiction where the properties owned, leased or operated or the business
conducted by it requires such qualification.
4.2 Authority. Seller has full authority to execute and to perform this
Agreement in accordance with its terms; the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby does not
and will not result in a breach, violation or default or give rise to an event
which with the giving of notice or after the passage of time, or both, would
result in a breach, violation or default of any of the terms or provisions of
the Company's respective Certificate of Incorporation, By-Laws or of any
indenture, agreement, judgment, decree or other instrument or restriction to
which the Company or Seller is a party or by which the Company, Seller, the
Shares or any of their assets may be bound or affected, except for the existing
( to be filled in if any agreements exist ) agreements between the Company,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ and the existing Lease between the Company and (
landlord agreement ); the execution and delivery of this Agreement have been
and, as of the date hereof and with and Effective Date of December 31, 2005, the
consummation of the transactions contemplated hereby will have been, duly
authorized, and no authorization or approval, whether of the stockholders or
directors of the Company or of governmental bodies or otherwise, will be
necessary in order to enable Seller to enter into and perform same; and this
Agreement constitutes a valid and binding obligation enforceable against Seller
in accordance with its terms.
4.3 Capitalization. The authorized capital stock of the Company consists of
(need to fill this in) shares of common stock, no par value, of which (need to
fill this in) shares are issued and outstanding. All of the aforesaid issued and
outstanding shares of the Company are directly owned of record and beneficially
by Seller, have been duly authorized and validly issued and are fully paid and
non-assessable. Schedule 4.3 attached hereto sets forth a true and complete
history of the issuance and cancellation, where applicable, of all the shares of
capital stock of the Company and the share certificates evidencing same, which
have heretofore been issued by the Company. There are no outstanding preemptive,
conversion or other rights, options, warrants or agreements granted or issued by
or binding upon Seller or the Company for the purchase or acquisition of any
shares of the Company's capital stock, including, without limitation, the
Shares. The Company does not hold any equity interest in any other entity.
4.4 Title to Assets.
(a) The Company has good and marketable title to all of its Assets;
and
(b) Except as described in Schedule 4.4 annexed hereto, none of such
Assets, the Shares, or the use thereof: (i) is subject to any easements or
restrictions or to any mortgages, liens, pledges, charges, bank loans,
security interests, encumbrances or encroachments, or to any rights of
others of any kind of nature whatsoever, (ii) encroaches or infringes on
the property or rights of another or (iii) contravenes any applicable law
or ordinance or any other administrative regulation or violates any
restrictive covenant or any provision of law; and there are no agreements
or arrangements between the Company or Seller and any third person which
have any effect upon the Company's title to or other rights respecting the
Assets or the Shares.
4.5 Condition of Property. To the best knowledge of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, all of the Assets are suitable for the purposes for which they are
used, are in good operating condition and in reasonable repair, free from any
known defects, except for (i) normal wear and tear and such minor defects as do
not interfere with the continued use thereof or (ii) defects set forth on
Schedule 4.5 annexed hereto.
4.6 Patents, Trademarks, Etc. Except as described in Schedule 1.1(e), there
are no inventions, licenses, patents, patent applications, trademarks,
copyrights, trademark or copyright applications or registrations, pending or
existing, relating to the Company's products owned by or registered in the name
of the Company; and the inventions, patents, licenses, trademarks, tradenames
and copyrights, existing or pending, listed in Schedule 1.1(e) hereto are all
such items necessary for the present conduct of the Company's business, none of
which is being contested or, to the best knowledge of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, infringed upon; and to the best knowledge of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ the present conduct of the business of the Company does not infringe
upon or violate the patents, trademarks, trade names, trade secrets or
copyrights of anyone, nor has the Company or Seller received any notice of any
infringement thereof.
4.7 Compliance with Law. To the best knowledge of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, the Company is not in violation of any laws, governmental orders, rules
or regulations to which the Company or any of its properties or businesses is
subject.
4.8 Agreements. Annexed hereto as Schedule 1.1(d) is a true and complete
list of all contracts, instruments, commitments and agreements, whether oral or
written, excluding routine orders for the Company's products, presently in
effect to which the Company is a party or to which the Company, the Shares or
the Assets are subject, including, without limitation, the following:
(a) any plan or contract or arrangement, oral or written, providing for
employment or consulting services, bonuses, commissions, pensions, stock
purchase or stock option or other stock rights, deferred compensation,
retirement or severance payments, profit sharing, or the like;
(b) any instrument or arrangement evidencing or relating in any way to (i)
indebtedness for borrowed money by way of direct loan, purchase money
obligation, conditional sale, lease purchase arrangement, guarantee or
otherwise, (ii) confession of judgment or agreed judgment, (iii) liens,
encumbrances or security interests, (iv) guaranties or indemnification or (v)
investments in any person;
(c) any contract containing provisions limiting the freedom of the Company
to engage in any business, compete in any line of business or market any
particular type of product, in any geographic area or with or to any person;
(d) any license, sublicense, lease or sublease agreement, whether as
licensor, sub licensor, licensee, sublicensee, lessor, sublessor, lessee,
sublessee or otherwise, or any agreements with dealers, vendors, customers,
suppliers, sales representatives, any governmental entity, fund or university,
or any agents, marketing representatives, brokers or distributors;
(e) any joint venture contract or arrangement or other agreement involving
a sharing of profits or expenses, or any joint or other technology development,
cooperation or exchange contract or arrangement;
(f) agreements providing for disposition of the business or any assets or
shares of the capital stock of the Company; agreements of merger or
consolidation to which the Company are a party; or any letters of intent with
respect to the foregoing;
(g) contracts requiring the performance of consulting services, software
development or modification or other
services.
Except as set forth on Schedule 4.8 hereof, each such agreement is a valid
and subsisting agreement and in full force and effect, all payments due to or
from the Company thereunder have been made, there are no disputes or suits or
actions at law or otherwise pending or threatened thereunder and such agreements
are the only agreements or arrangements of this nature. True, complete and
correct copies of each such agreement have been supplied to Purchaser prior to
the date hereof as part of Schedule 1.1 (d).
4.9 Financial Statements. Attached hereto as Schedules 1.5 and 1.5A are
copies of the Financial Statements for the Company, as certified by ▇▇▇▇▇▇▇▇▇▇▇
& Company CPA's P.C. for December 31 2004 and December 31,2005 and two months
ending February 28,2006 respectively , as true and correct in all material
respects. The Financial Statements have been prepared on a consistent basis in
accordance with generally accepted accounting principles ("GAAP") and in
compliance with the PCOAB, consistently applied, and fairly present the
financial position and results of operations, cash flows and changes in
shareholders equity of the Company for the periods covered thereby. The books
and records respectively maintained by the Company upon which the Financial
Statements are based are true and correct in all respects and accurately reflect
the business of the Company. Except to the extent reflected or reserved against
in the Balance Sheet, the Company has no liability of any nature, whether
absolute, accrued, contingent or otherwise and whether due or to become due,
including, without limitation, any liability for taxes for any period prior to
such date. Except as described in detail on Schedule 4.9, since December 31,
2005, the Company has not taken any of the actions referred to in Article VII of
this Agreement. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ acknowledge that ▇▇▇▇▇▇▇ will
become a passive investor in the Juni with no operational input.
As soon as practicable, but no later than on or about March 31, 2006, the
Company shall provide to Purchaser reviewed financial statements for the first
two months ending February 28, 2006. During said two months, the Company shall
be operated in the ordinary course and no extraordinary payments or expenses
shall be made by the Company. The Company shall conduct itself in the normal
course of business and shall comply with Paragraph 4.13 during the two month
period ending February 28, 2006.
4.10 Litigation. There are no actions, suits, proceedings or investigations
(including any purportedly on behalf of the Company) pending or threatened
against or affecting the business or properties of the Company whether at law or
in equity or admiralty or before or by any governmental department, commission,
board, agency, court or instrumentality, domestic or foreign; nor is the Company
operating under, subject to, in violation of or in default with respect to, any
judgment, order, writ, injunction or degree of any court or other governmental
department, commission, board, agency or instrumentality, domestic or foreign.
No inquiries have been made directly to the Company or Seller by any
governmental agency which might form the basis of any such action, suit,
proceeding or investigation, or which might require the Company to undertake a
course of action which would involve any expense. No filings have been made by
any present or former employee of the Company with the Equal Employment
Opportunity Commission or any governmental agency, asserting any claim based on
alleged race, gender (including, without limitation, sexual harassment), age or
other type of discrimination on the part of the Company.
4.11 Salaries. Schedule 4.11 annexed hereto sets forth a true and complete
list, as of the date of this Agreement, of all of the persons who are employed
by the Company, together with their current compensation, fringe benefits and
bonuses paid or to be paid or the methods of computing such compensation and
bonuses, for the current fiscal year. Except as set forth on Schedule 4.11
annexed hereto, no such employee is employed by the Company under a written
contract of employment, nor since December 31, 2005 has the Company incurred any
outstanding liability for payment of wages, vacation pay (whether accrued or
otherwise), salaries, bonuses, pensions or contributions under any labor or
employment contract, whether oral or written, or by reason of any past practices
with respect to such employees based upon or accruing with respect to services
of present or former employees of the Company, other than in the ordinary course
of business.
4.12 Taxes. The Company has filed, or caused to be filed, with all
appropriate governmental agencies all required tax and information returns and
have paid, caused to be paid or accrued all taxes (including, without
limitation, all income, franchise, sales, excise and use taxes), assessments,
charges, penalties and interest shown to be due and payable. The Company has no
liability, contingent or otherwise, for any taxes, assessments, charges,
penalties or interest, other than amounts adequately reserved for. The Company
has not received directly or indirectly notice of, nor is it otherwise aware of
an audit or examination; the Company is not a party directly or indirectly to
any action or proceeding by any governmental authority for assessment or
collection of taxes, charges, penalties or interest; nor has any claim for
assessment and collection been asserted against the Company directly or
indirectly; nor has the Company executed a waiver of any statute of limitations
with respect thereto. The Company has paid, or caused to be paid, or adequately
reserved for, all applicable corporate franchise taxes, unemployment taxes,
payroll taxes, social security taxes, occupation taxes, property taxes, excise
taxes and imposts, sales and use taxes, and all other taxes of every kind,
character or description required to be paid to the date hereof, and has
received no notices and is not otherwise aware, of any deficiencies, adjustments
or changes in assessments with respect to any such taxes. The Company has duly
filed, or caused to be filed, all reports or returns relating to or covering any
such taxes or other charges which are due or required to be filed at the date
hereof and no extensions of time are in effect for the assessment of
deficiencies for such taxes in respect of any fiscal period. The Company shall
provide to Purchaser a copy of tax returns for 2002, 2003 and 2004, if
available, including therewith 941's and 942's for 2004 and 941's for 2005.
4.13 Absence of Changes. Except as set forth on Schedule 4.13 attached
hereto, since December 31, 2005, the Company has been operated in the ordinary
course and there has not been:
(a) any declaration, setting aside or payment of any dividend or other
distribution of any assets of any kind whatsoever with respect to any shares of
the capital stock of the Company or any direct or indirect redemption, purchase
or other acquisition of any such shares of the capital stock of the Company or
any issuance of securities or any rights whatsoever to acquire securities;
(b) any difficulty with its labor relations adversely affecting the
business of the Company;
(c) any license, sale, transfer, pledge, lien, security interest, mortgage
or other disposition of any tangible or intangible assets other than in the
ordinary course of business;
(d) any write-down or write-up of the value of any asset of the Company or
any portion thereof;
(e) any change in the accounting methods or practices followed by the
Company, in depreciation or amortization policies or rates theretofore adopted
by the Company;
(f) any single capital expenditure or commitment therefore by the Company
in excess of $1,000, or such capital expenditures in the aggregate in excess of
$5,000, for additions to property, plant or equipment of the Company;
(g) any changes in the manner in which the Company extends discounts or
credit or otherwise deals with customers, vendors, suppliers, distributors or
sales representatives;
(h) any agreement or commitment relating to the sale by the Company of any
fixed assets;
(i) any outstanding contract or commitment which will result in any loss to
the Company upon completion of performance thereof, or any outstanding contract,
bid or sale or service proposal quoting prices which will not result in a normal
profit in the ordinary course of business;
(j) any grant by the Company or Seller of any power of attorney (whether
revocable or irrevocable) to any person that is or may hereafter be in force for
any purpose whatsoever;
(k) the creation of any lien of record or guarantee, or any investment in
any person; or
(l) any commitment to do any of the acts or things specified in items (a)
though (k) of this Section 4.13.
4.14 Insurance. The Company maintains adequate insurance against all
ordinary and insurable risks with respect to all property, real, personal and
mixed, owned or leased by it. Schedule 4.14 annexed hereto contains a complete
list of all policies of insurance held by the Company, showing for each policy
(i) the owner, (ii) the coverage, (iii) the amount of premium properly allocable
thereto, (iv) the name of the insurer, (v) the termination date of the policy
and (vi) all claims made thereunder. All such policies are in full force and
effect, all premiums with respect thereto covering all periods up to and
including the Closing Date have been paid, and no notice of cancellation or
termination has been received with respect to any such policy. The Company has
not failed to give any notice or present any claim thereunder in a due and
timely fashion.
4.15 ERISA. Schedule 4.15 contains a complete list and brief description of
each Employee Benefit Plan (as such term is defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")),
established or maintained, or to which contributions have been made, by or for
the Company. With respect to all such Employee Benefit Plans the Company has not
engaged in a transaction which could subject it to any tax, penalty or liability
for prohibited transactions imposed by Section 502(i) of ERISA or Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code"). Neither the
Company nor any director or employee of the Company has breached any of the
responsibilities or obligations imposed upon such person as a fiduciary under
Title I of ERISA with respect to any Employee Benefit Plan. No Employee Benefit
Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412
of the Code has an accumulated funding deficiency (as defined in Section 302 of
ERISA and Section 412 of the Code), whether or not waived. With respect to any
Employee Benefit Plan which is a defined benefit pension plan, as of the last
day of the most recent plan year the current value of plan assets exceeds the
actuarial present value of Benefit Commitments (as that term is used in Section
3 of ERISA) (as determined on the basis of the actuarial assumptions contained
in the Employee Benefit Plan's most recent actuarial valuation). No liability
(other than the annual payment of insurance premiums) to the Pension Benefit
Guaranty Corporation ("PBGC") has been or is expected to be incurred by the
Company with respect to any Employee Benefit Plan. The Company has not incurred
or expects to incur any withdrawal liability to any Multi-employer Plan (as that
term is used in Section 3 of ERISA). All Employee Benefit Plans have been
administered in compliance with ERISA and the Code. With respect to all Employee
Benefit Plans that are intended to qualify under Section 401(a) of the Code, all
such Employee Benefit Plans are covered by a determination letter from the
Internal Revenue Service which opines that such Employee Benefit Plans satisfy
the requirements under Section 401(a) of the Code and nothing has occurred
subsequent to the issuance of any such letter that adversely affects any such
prior determination by the Internal Revenue Service. Complete and correct copies
of all Employee Benefit Plans have been furnished to Purchaser.
4.16 Brokers. There has been no broker or finder involved in any manner in
the negotiations leading up to the execution of this Agreement or the
consummation of any transactions contemplated hereby, and Seller, agrees to
indemnify Purchaser and JUNI against and hold Purchaser and JUNI harmless from
any claim made by any party for a broker's or finder's fee or other similar
payment based upon any agreements, arrangements or understanding made by Seller.
4.17 Transactions with Affiliates. Except as described in Schedule 4.17
annexed hereto, there are no loans, leases, royalty agreements, employment
contracts or any other agreement or arrangement, oral or written, between the
Company, on the one hand, and any past or present stockholder, officer,
employee, consultant or director of the Company or Seller (or any member of the
immediate family of such stockholder, officer, employee, consultant, director or
Seller), on the other hand.
4.18 Acquisition of Securities.
(a) Seller is acquiring the JUNI Shares for its own account for investment
only and not with a view towards the public sale or distribution thereof and not
with a view to or for sale in connection with any distribution thereof.
(b) INTENTIONALLY LEFT BLANK
(c) All subsequent offers and sales of the JUNI Shares by Seller shall be
made pursuant to registration of the JUNI Shares under the Securities Act or
pursuant to an exemption from registration.
(d) Seller acknowledges that the JUNI Shares are being offered and sold to
it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that JUNI is relying upon
the truth and accuracy of, and Seller's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Seller set forth
herein in order to determine the availability of such exemptions and the
eligibility of Seller to acquire the JUNI Shares.
(e) Seller and its advisors, if any, have been furnished with materials
relating to the business, finances and operations of JUNI and materials relating
to the offer and sale of the JUNI Shares which have been requested by Seller.
Seller and its advisors, if any, have been afforded the opportunity to ask
questions of the Purchaser and have received complete and satisfactory answers
to any such inquiries.
(f) Seller understands that its investment in the JUNI Shares involves a
high degree of risk.
(g) Seller understands that no United States federal or state agency or any
other government or governmental agency has passed on or made any recommendation
or endorsement of the JUNI Shares.
(h) Seller acknowledges that: (i) the JUNI Shares are subject to a
"lock-up" and have not been and are not being registered under the SB-2 filed on
February 10,2006 under the provisions of the Securities Act and may not be
transferred unless (A) subsequently registered thereunder or (B) Seller shall
have delivered to JUNI an opinion of counsel, or other evidence reasonably
satisfactory in form, scope and substance to JUNI, to the effect that the JUNI
Shares to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; (ii) any sale of the JUNI Shares made in
reliance on Rule 144 promulgated under the Securities Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such JUNI Shares under circumstances in which the
Seller, or the person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the Securities Act, may require compliance
with some other exemption under the Securities Act or the rules and regulations
of the Securities and Exchange Commission thereunder; and (iii) except as
provided herein, neither the Company nor any other person is under any
obligation to register the JUNI Shares under the Securities Act or to comply
with the terms and conditions of any exemption thereunder.
(i) Seller acknowledges and agrees that until such time as the JUNI Shares
have been registered under the Securities Act the JUNI Shares shall bear a
restrictive legend in substantially the following form:
THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO
THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
4.19 No Untrue Representation or Warranty. No representation or warranty
made by Seller contained in this Agreement or any attachment, statement,
schedule, exhibit, certificate or instrument furnished or to be furnished to
Purchaser by Seller pursuant hereto, or otherwise furnished in writing by Seller
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 contained herein or therein
not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND JUNI
Purchaser and JUNI hereby, jointly and severally, represent and warrant to
the Seller as follows:
5.1 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. JUNI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada.
5.2 Corporate Authority. Purchaser and JUNI have full authority to execute
and to perform this Agreement in accordance with its terms; the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby does not and will not result in a breach, violation or default or give
rise to an event which, with the giving of notice or after the passage of time,
would result in a breach, violation or default of any of the terms or provisions
of Purchaser's or JUNI's Certificate of Incorporation, By-Laws or of any
indenture, agreement, judgment, decree or other instrument or restriction to
which Purchaser or JUNI is a party or by which Purchaser or JUNI may be bound or
affected; and this Agreement constitutes a valid and binding obligation
enforceable against Purchaser and JUNI in accordance with its terms. The
consummation of the transactions contemplated hereby will have been duly
authorized by all required corporate action, and no authorization or approval,
whether of the stockholders or directors of Purchaser or JUNI or of governmental
bodies or otherwise would be necessary in order to enable Purchaser and JUNI to
enter into and perform its obligations under this Agreement and the transactions
contemplated thereby.
5.3 Capitalization. The authorized capital stock of JUNI consists of
75,000,000 shares of Common Stock, par value .001, and 875,000 authorized shares
of Preferred Stock, par value .01; the Company records reflect there are
14,224,024 shares of Common Stock issued and outstanding as of February 10,
2006. The JUNI Shares to be issued to Seller hereunder will be duly authorized,
validly issued, fully paid, and non-assessable, without any personal liability
attaching to the ownership thereof. The copies of the Certificate of
Incorporation and By-Laws of Purchaser and JUNI heretofore provided to Seller
are true and complete in all respects. JUNI is the owner of all of the issued
and outstanding shares of capital stock of Purchaser. JUNI will remain in
control of Purchaser, and Purchaser will remain in control of the Company after
Closing, within the meaning of Internal Revenue Code Section 368 (a)(1)(B).
5.4 SEC Documents, Financial Statements. The Common Stock of JUNI is
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and listed on the NASD OTC Electronic Bulletin
Board and currently quoted on the NASD OTC Bulletin Board under the ticker
symbol "JUNI.OB" . JUNI has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the Securities and Exchange
Commission ("SEC") pursuant to the reporting requirements of the Exchange Act,
including material filed pursuant to Section 13(a) or 15(d), in addition to one
or more registration statements and amendments thereto heretofore filed by JUNI
with the SEC under the Securities Act of 1933, as amended (the "Act") (all of
the foregoing including filings incorporated by reference therein being referred
to herein as the "SEC Documents"). JUNI has delivered to the Seller true and
complete copies of the SEC Documents (except for exhibits and incorporated
documents).
As of their respective dates and to the best of my knowledge, SEC Documents
complied in all material respects with the requirements of the Act or the
Exchange Act as the case may be and the rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of JUNI included in the SEC Documents
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or (ii) in
the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of JUNI as of the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
5.5 No Material Adverse Change. Since the date of the most recently filed
SEC Documents, no event has occurred or exists with respect to JUNI or any of
its subsidiaries which would be likely to have, or has had, a material adverse
effect on JUNI and its subsidiaries taken as a whole.
5.6 Brokers. There has been no broker or finder involved in any manner in
the negotiations leading up to the execution of this Agreement or the
consummation of any transactions contemplated hereby, and Purchaser and JUNI,
jointly and severally, agree to indemnify Seller against and hold Seller
harmless from any claim made by any party for a broker's or finder's fee or
other similar payment based upon any agreements, arrangements or understanding
made by Purchaser or JUNI.
5.7 No Untrue Representation or Warranty. No representation or warranty
made by Purchaser or JUNI contained in this Agreement or any attachment,
statement, schedule, exhibit, certificate or instrument furnished or to be
furnished to Seller by Purchaser or JUNI pursuant hereto, or otherwise furnished
in writing by Purchaser or JUNI 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
contained herein or therein not misleading.
5.8 Acquisition of Securities.
(a) Purchaser is acquiring the Shares for its own account for investment
only and not with a view towards the public sale or distribution thereof and not
with a view to or for sale in connection with any distribution thereof.
(b) INTENTIONALLY LEFT BLANK
(c) All subsequent offers and sales of the Shares by Purchaser shall be
made pursuant to registration of the Shares under the Securities Act or pursuant
to an exemption from registration.
(d) Purchaser acknowledges that the Shares are being offered and sold to it
in reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that Seller is relying upon the
truth and accuracy of, and Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of Purchaser to acquire the Shares.
(e) Purchaser and its advisors, if any, have been furnished with materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Shares which have been requested by
Purchaser. Purchaser and its advisors, if any, have been afforded the
opportunity to ask questions of the Company and have received complete and
satisfactory answers to any such inquiries.
(f) Purchaser understands that its investment in the Shares involves a high
degree of risk.
(g) Purchaser understands that no United States federal or state agency or
any other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares.
(h) Purchaser acknowledges that: (i) the Shares have not been and are not
being registered under the provisions of the Securities Act and may not be
transferred unless (A) subsequently registered thereunder or (B) Purchaser shall
have delivered to the Company an opinion of counsel, or other evidence
reasonably satisfactory in form, scope and substance to the Company, to the
effect that the Shares to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; (ii) any sale of the Shares
made in reliance on Rule 144 promulgated under the Securities Act may be made
only in accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such Shares under circumstances in which the
Purchaser, or the person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the Securities Act, may require compliance
with some other exemption under the Securities Act or the rules and regulations
of the Securities and Exchange Commission thereunder; and (iii) except as
provided herein, neither the Company nor any other person is under any
obligation to register the Shares under the Securities Act or to comply with the
terms and conditions of any exemption thereunder.
(i) Purchaser acknowledges and agrees that until such time as the Shares
have been registered under the Securities Act the Shares shall bear a
restrictive legend in substantially the following form:
THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO
THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
5.9 Receipt of Financial Statements. The Purchaser and JUNI acknowledge
that they have received the Company's Audited Financial Statements by
▇▇▇▇▇▇▇▇▇▇▇ & Company CPA's P.C. for the years ended December 31, 2004 and
December 31, 2005 and related Statement of Operations, Stockholders Equity and
comprehensive income, cash flow for year ending December 31, 2004 and December
31, 2005.
ARTICLE VI
COVENANTS
6.1 Further Assurances. Each party agrees that, at any time after the
Closing Date, upon the request of the other party, it will do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acknowledgments, deeds, assignments, bills of sale,
transfers, conveyances, instruments, consents and assurances as may reasonably
be required for the better assuring and confirming to the other party, its
successors and assigns, absolute ownership to the Shares and the JUNI Shares to
be exchanged hereunder.
6.2 Cooperation. The parties shall cooperate with each other fully with
respect to actions required or requested to be undertaken with respect to tax
audits, administrative actions or proceedings, litigation and any other matters
that may occur after the Closing Date, and each party shall maintain and make
available to the other party upon request all corporate, tax and other records
reasonably required or requested in connection with such matters.
6.3 Publicity. The parties hereto agree that no publicity release or
announcement concerning the transactions contemplated hereby shall be issued
without the advance approval of the form and substance thereof by the parties,
except, with respect to JUNI, as may be required by law, rule or regulation.
6.4 Restrictive Covenants. The Sellers acknowledge that (i) the business
activities of the Company will include acquisitions and /or the organic
development of the broadband business; (ii) they will have a major
responsibility for the operation and growth of the Company; (iii) their work for
the Company will bring them into close contact with confidential information of
the Purchaser and Juni; and (iv) the agreements and covenants contained in this
Section (6.4) are essential to protect the business interest of the Purchaser ,
Company and Juni.
Throughout the Employment Period for ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ and the
Post-Termination Period for ▇▇▇▇▇▇▇, the Seller shall not, directly or
indirectly (i) induce or attempt to influence any employee or customer of the
Purchaser, Company Juni or its affiliates to leave its employment or terminate
its services with the Company or Purchaser, (ii) aid, agree or work as am
employee or subcontractor to aid any competitor, customer or supplier of the
Company, Purchaser, Juni or its affiliates or in any attempt to hire any person
who shall have been engaged by the Company, Juni or its affiliates within the
one (1) year period. Preceding such requested aid, or (iii) induce or attempt to
influence any person, business entity who was or is a client or is a supplier of
the Company, Purchaser, Juni or its affiliates during any portion of such period
to transact business with a competitor of Juni or its affiliates.
▇▇▇▇▇▇▇ is prohibited from being engaged as an employee or subcontractor with
any of the Company competitors, its affiliates, subsidiaries, divisions or their
subcontractor or any of their competitors in the following territory as
delineated below:
Indiana Cingular, Verizon, Nextel/Sprint, T-Mobile, Crown,
Bechtel, Indiana State Police, CH2MHill, GPD Group,
Westower, Revol
Ohio Cingular, T-Mobile, GPD Group, Revol, Westower
Kentucky Crown, GPD Group, Nextel/Sprint, Verizon, Westower
Illinois Crown, GPD Group, Westower, Nextel/Sprint
ARTICLE VII
CONDUCT OF BUSINESS PENDING THE EFFECTUATION OF ALL TRANSACTIONS FOR CLOSING
Between the date hereof and the consummation of the transactions
contemplated herein, and except as otherwise expressly consented to in writing
in advance or approved in writing in advance by Purchaser:
7.1 Regular Course of Business. ▇▇▇▇▇▇▇▇▇▇, will cause the Company to carry
on its business diligently and substantially in the same manner as heretofore
conducted, and shall not permit it to institute any new methods of management,
accounting or operation or engage in any transaction or activity, enter into any
agreement or make any commitment, except in the usual and ordinary course of
business and consistent with past practice as limited by the more restrictive
provisions of this Agreement, where applicable, or as otherwise specifically
contemplated by this Agreement and not in violation thereof.
7.2 Organization. ▇▇▇▇▇▇▇▇▇▇ shall preserve the corporate existence and
business organization of the Company intact, keep available to Purchaser the key
employees of the Company, and preserve for Purchaser their relationships with
suppliers, customers, agents and others having business relations with the
Company. In addition, and not in limitation of the foregoing, ▇▇▇▇▇▇▇▇▇▇ will
cause the Company to create a web sites listed on Schedule 3.2 (k) hereto.
7.3Certain Changes. Except as permitted by this Agreement, without the
prior written consent of Purchaser, Seller will not permit the Company to:
(a) Borrow or agree to borrow any funds or incur, or assume or become
subject to, whether directly or by way of guarantee or otherwise, any obligation
or liability (absolute or contingent);
(b) Pay, discharge or satisfy any claim, liability or obligation (absolute,
accrued, contingent or otherwise), other than the payment, discharge or
satisfaction in the ordinary course of business and consistent with past
practice of liabilities or obligations reflected or reserved against in the
Balance Sheet or thereafter incurred in accordance with this Agreement;
(c) Prepay any obligation having a fixed maturity of more than 90 days from
the date such obligation was issued or incurred;
(d) Permit or allow any of its property or assets (real, personal or mixed,
tangible or intangible) to be subjected to any
lien;
(e) Cancel any debts or waive any claims or rights or sell, transfer, or
otherwise dispose of any of its properties or assets;
(f) Grant any increase in the compensation of officers or employees,
institute or amend any sales compensation plan, severance plan or other
arrangement for its officers or employees, or enter into any plan or agreement
with respect thereto;
(f) Grant any increase in the compensation of officers or employees,
institute or amend any sales compensation plan, severance plan or other
arrangement for its officers or employees, or enter into any plan or agreement
with respect thereto;
(g) Make any capital expenditures or commitments for additions to or
replacement of property, plant, equipment or intangible capital assets in excess
of $5,000.
(h) Pay, loan or advance any amount to, or sell, transfer or lease any
properties or assets to, or enter into agreement or arrange with, any of its
employees, officers or directors or any affiliate thereof, except for directors
fees and compensation to employees, officers or directors at rates not exceeding
the rates of compensation set forth in Schedule 4.11;
(i) Issue, or grant any options with respect to the issuance of, any shares
of their capital stock, or purchase shares of capital stock or make any equity
investment in, or agree to purchase or make any equity investment in, any other
entity, corporate or otherwise;
(j) Declare, set aside or pay any dividend or other distribution of any
assets of any kind whatsoever with respect to any shares of the capital stock of
the Company, or redeem, purchase or otherwise acquire, directly or indirectly,
any shares of the capital stock of the Company; or
(k) Agree, whether in writing or otherwise, to do any of the foregoing.
7.4 Contracts. Seller will not permit the Company to enter into any
contract or commitment, or purchase any supplies or services or sell any assets,
except normal contracts or commitments for the purchase of, and normal purchases
of, supplies or services made in the usual and ordinary course of business,
consistent with the past practice of the Company, and not in violation of any
other more restrictive provision of this Article VII. In addition, and not in
limitation of the foregoing, Seller shall not permit the Company to take any
actions to modify or amend any of the documents comprising the Assets without
the express prior written consent of Purchaser.
7.5 Insurance; Property. Seller will cause the Company to maintain adequate
insurance against all ordinary and insurable risks with respect to all property,
real, personal and mixed, owned or leased by them; and all such property shall
be used, operated, maintained and repaired in a careful and reasonably efficient
manner.
7.6 No Default. Seller shall not do any act or omit to do any act, and
shall cause the Company not to do any act or omit to do any act, which will
cause a breach of any contract or commitment of the Company or any subsidiary of
the Company or which would cause the breach of any representation, warranty or
covenant made hereunder.
7.7 Compliance with Laws. Seller will cause the Company to comply with all
laws applicable to them and their properties, operations, business and
employees.
7.8 Tax Returns. ▇▇▇▇▇▇▇▇▇▇ will cause the Company to prepare and file all
federal, state, local and foreign tax returns and amendments thereto required to
be filed by them. ▇▇▇▇▇▇▇▇▇▇ will ensure that Purchaser shall have a reasonable
opportunity to review each such return and amendment prior to the filing
thereof.
7.9 Maintain Books. Purchaser will cause the Company to maintain their
books, accounts and records in accordance with generally accepted accounting
principles applied on a consistent with bases.
7.10 Consents and Waivers without Any Condition. Seller shall not make, or
permit the Company to make, any agreement or understanding, not earlier approved
in writing by Purchaser, as a condition for obtaining any consent or waiver
contemplated by Section 3.2(h) of this Agreement.
7.11 Purchaser Personnel On-Site. Seller agrees to permit, and cause the
Company to permit, Purchaser from and after the date hereof to station, if
necessary, one or more of its officers at the Company's premises to monitor the
Company's compliance with the provisions of this Article VII.
ARTICLE VIII
ADDITIONAL AGREEMENTS
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ARTICLE IX
SURVIVAL; INDEMNIFICATION
9.1 Survival of Representations and Warranties. The representations and
warranties set forth in Sections 4.3, 4.4 and 4.6 shall survive and remain in
effect following the Closing Date; the representations and warranties set forth
in Section 4.17 shall survive and remain in effect through and until the
expiration of the applicable statute of limitations periods relating thereto;
all other representations and warranties set forth herein shall survive and
remain in effect through and until the date which is two years after the Closing
Date. Subsequent to the expiration of the respective representations and
warranties as set forth in this Section 9.1, no party shall make or assert any
claim against the other party on account of or arising out of such
representations or warranties.
9.2 Indemnity against Claims.
(a) SELLER each separately agree to indemnify and hold Purchaser harmless
from and against the following: Any and all liabilities, losses, damages,
claims, costs and reasonable expenses suffered by Purchaser (whether awarded
against Purchaser or paid by Purchaser in settlement of a claim as provided in
Section 9.3 or otherwise suffered), resulting from any misrepresentation, breach
of any warranty, or non-fulfillment of any covenant, condition or agreement
respectively made by them which is contained in this Agreement or in any
statement, attachment, schedule, exhibit or certificate furnished or to be
furnished by them to Purchaser pursuant hereto or in connection with the
transactions contemplated hereby; and
(b) Any and all actions, suits, proceedings, demands, assessments or
judgments, costs and reasonable expenses (including reasonable attorneys' fees)
incident to any of the foregoing.
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(d) Notwithstanding anything to the contrary in subsection (a) or (b)
hereof, no such claim for indemnification hereunder may be asserted until and
only to the extent that the aggregate amount of such claim or claims exceeds
$10,000.
9.3 Notice of Claim, Assumption of Defense and Settlement of Claims.
(a) Purchaser shall promptly give notice (an "Indemnification Notice") in
accordance with Section 11.1 hereof to Seller (the "Indemnitor") after Purchaser
shall have knowledge of any demands, claims, actions or causes of action
(singly, a "Claim" and hereinafter referred to collectively, as "Claims") which
might give rise to a Claim by Purchaser or JUNI against the Indemnitor, stating
the nature and basis of said Claim and the amount thereof, to the extent known.
A failure to give notice hereunder shall not relieve the Indemnitor from any
obligation hereunder unless such failure to give notice shall materially and
adversely affect the Indemnitor's ability to defend the Claim. After the
delivery of an Indemnification Notice certifying that Purchaser or JUNI has
incurred or had asserted against it any liabilities, claims, losses, damages,
costs or expenses for which indemnity may be sought in accordance with the terms
of this Article IX (the "Damages"), Purchaser shall make a claim in an amount
equal to the incurred Damages or asserted Damages, as the case may be (which, in
the case of any asserted Damages shall include Purchaser's reasonably estimated
cost of the defense thereof, hereinafter the "Estimated Defense Costs"), and the
Indemnitor shall promptly reimburse Purchaser for the Damages for which
Purchaser has incurred and not been indemnified. In the event the amount of such
Damages are not promptly reimbursed by the Indemnitor as aforesaid, the amount
of such unreimbursed Damages shall accrue interest at a rate equal to two
percent (2%) above the applicable prime rate of Citibank, N.A.
(b) With respect to any third party Claims made subsequent to the Closing
Date, the following procedures shall be observed:
(1) Promptly after delivery of an Indemnification Notice in respect of a
Claim, the Indemnitor may elect, by written notice to the Purchaser, to
undertake the defense thereof with counsel reasonably satisfactory to Purchaser
and at the sole cost and expense of the Indemnitor.
(2) Failure by the Indemnitor to notify Purchaser of its election to defend
any such action within 20 days after notice thereof shall have been given shall
be deemed a waiver by the Indemnitor of their right to defend and settle such
action. If the Indemnitor assumes the defense of any such Claim, its obligations
hereunder as to such Claim shall be limited to taking all steps necessary in the
defense or settlement of such Claim and to holding Purchaser and JUNI harmless
from and against any and all losses, damages, expenses and liabilities awarded
in any such proceeding or arising out of any settlement approved by the
Indemnitor or any judgment in connection with such Claim.
(3) The Indemnitor shall not, in the defense of any such Claim, consent to
the entry of any judgment (except with the prior written consent of Purchaser)
or enter into any settlement (except with the prior written consent of
Purchaser) which does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to Purchaser and JUNI of a complete release from
all liability in respect of such Claim.
(4) If the Indemnitor does not assume the defense of a Claim, Purchaser and
JUNI may defend against or settle such Claim in such manner as they may deem
appropriate, and the Indemnitor shall promptly reimburse Purchaser for all
expenses, legal or otherwise, incurred by Purchaser and/or JUNI in connection
with the defense against and settlement of such Claim, as and when the same
shall be incurred by them. If no settlement of such Claim is made, the
Indemnitor shall promptly reimburse Purchaser and JUNI for or, at Purchaser's
option, pay the amount of any judgment rendered with respect to such Claim and
all expenses, legal or otherwise, incurred by Purchaser in the defense against
such Claim.
9.4 Right to Set Off. Notwithstanding anything to the contrary set forth in
this Agreement or any Exhibit hereto, in the event that Purchaser or JUNI shall
have a Claim against Seller which is asserted prior to the expiration dates set
forth in Section 9.1 hereof, for which Purchaser and JUNI have not been fully
and completely indemnified as contemplated above, Purchaser and/or JUNI shall
have the right to set off the amount of such Claim against Seller, so long as
such claim is asserted prior to the expiration dates set forth in Section 9.1
hereof, against any JUNI Shares or monies due to Seller. Purchaser shall be
entitled to suspend any such payments until its Claim is resolved, without
causing a breach of this Agreement.
9.5 Remedies Cumulative. The remedies provided to Purchaser and JUNI herein
shall be cumulative and shall not preclude Purchaser or JUNI from asserting any
other rights or seeking any other remedies against an Indemnitor or its
respective heirs, successors or assigns. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent or
subsequent assertion or employment of any other appropriate right or remedy.
ARTICLE X
GENERAL PROVISIONS
10.1 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally, sent by email,
facsimile transmission or sent by certified, registered or express mail, postage
prepaid or overnight delivery by a nationally recognized courier service. Any
such notice shall be deemed given when so delivered personally or when sent by
facsimile transmission or, if mailed by certified or registered mail, ten (10)
days after the date of deposit in the United States mail, postage prepaid or
otherwise upon delivery, if addressed:
(a) In the case of Seller to:
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With a copy to:
(b) In the case of Purchaser or JUNI to:
Juniper Services, Inc.
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With a copy to:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & Eilen, LLP
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or to such other address or to such other person as Purchaser, JUNI or Seller,
shall have last designated by written notice given as herein provided.
10.2 Modification. This Agreement and the Exhibits and Schedules annexed
hereto contain the entire agreement between the parties hereto and there are no
agreements, warranties or representations which are not set forth herein. All
prior negotiations, representations, warranties, agreements and understandings
are superseded hereby. This Agreement may not be modified or amended except by
an instrument in writing duly signed by or on behalf of the parties hereto and
dated on or subsequent to the date hereof.
10.3 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within the State. All parties
hereto hereby irrevocably consent to the jurisdiction of any New York State or
Federal court located in Nassau County, New York over any action or proceeding
arising out of any dispute between any of them, and irrevocably agree, in this
regard, not to commence any action or proceeding arising out of any dispute
between any of them in any other jurisdiction. All parties further irrevocably
consent to the service of process in any such action or proceeding by the
mailing of a copy of such process to them, at the address set forth above.
10.4 Binding Effect; Assignment. This Agreement shall be binding upon the
parties and inure to the benefit of the successors and assigns of the respective
parties hereto; provided, however, that this Agreement and any and all rights
hereunder may not be assigned by any party except with the prior written consent
of the other parties, which may be withheld for any reason.
10.5 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. In the event any
document is delivered with a fax signature, a hard copy shall be provided within
ten (10) days thereafter. Execution and delivery of this Agreement by exchange
of facsimile copies bearing a facsimile signature copies bearing a facsimile
signature shall constitute a valid and binding execution and delivery, such
facsimile copies shall constitute enforceable and original documents.
10.6 Paragraph Headings. The paragraph headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
10.7 Transaction Expenses. Except as otherwise provided in this Agreement,
the parties hereto shall each be responsible for the payment of (and shall
indemnify and hold the Company and other parties hereto harmless against) any
and all of its, his or her own expenses, including without limitation the fees
and expenses of counsel, accountants and other advisers, arising out of or
relating directly or indirectly to the transactions contemplated by this
Agreement, whether or not such transactions are consummated in whole or in part.
10.8 Waiver. The waiver of one breach or default hereunder shall not
constitute the waiver of any other or subsequent breach or default.
10.9 No Agency. This Agreement shall not constitute any party the legal
representative or agent of the other, nor shall any party have the right or
authority to assume, create, or incur any liability or any obligation of any
kind, express or implied, against or in the name of or on behalf of the other
party.
ARTICLE XI
INDEMNIFICATION BY PURCHASER AND JUNI
11.1 (a) Purchaser and JUNI each separately agree to indemnify and hold
Seller harmless from and against the following: Any and all liabilities, losses,
damages, claims, costs and reasonable expenses suffered by Seller (whether
awarded against Seller or paid by Seller in settlement of a claim as provided in
Section 11.2 or otherwise suffered), resulting from any misrepresentation,
breach of any warranty, or non-fulfillment of any covenant, condition or
agreement made by them which is contained in this Agreement or in any statement,
attachment, schedule, exhibit or certificate furnished or to be furnished by
them to Seller pursuant hereto or in connection with the transactions
contemplated hereby. Notwithstanding the foregoing, the provisions of this
Article XI shall not extend to the obligation to provide funding under Article
VIII; and
(b) Any and all actions, suits, proceedings, demands, assessments or
judgments, costs and reasonable expenses (including reasonable attorneys' fees)
incident to any of the foregoing.
(c) Notwithstanding anything to the contrary in subsection (a) or (b)
hereof, no such claim for indemnification hereunder may be asserted until and
only to the extent that the aggregate amount of such claim or claims exceeds
$10,000.
11.2 Notice of Claim, Assumption of Defense and Settlement of Claims.
(a) Seller shall promptly give notice (an "Indemnification Notice") in
accordance with Section 12.1 hereof to Purchaser and JUNI (the "Indemnitor")
after Seller shall have knowledge of any demands, claims, actions or causes of
action (singly, a "Claim" and hereinafter referred to collectively, as "Claims")
which might give rise to a Claim by Seller against the Indemnitor, stating the
nature and basis of said Claim and the amount thereof, to the extent known. A
failure to give notice hereunder shall not relieve the Indemnitor from any
obligation hereunder unless such failure to give notice shall materially and
adversely affect the Indemnitor's ability to defend the Claim. After the
delivery of an Indemnification Notice certifying that Seller has incurred or had
asserted against it any liabilities, claims, losses, damages, costs or expenses
for which indemnity may be sought in accordance with the terms of this Article
XI (the "Damages"), Seller shall make a claim in an amount equal to the incurred
Damages or asserted Damages, as the case may be (which, in the case of any
asserted Damages shall include Seller's reasonably estimated cost of the defense
thereof, (the "Estimated Defense Costs"), and the Indemnitor shall promptly
reimburse Seller for the Damages for which Seller has incurred and not been
indemnified. In the event the amount of such Damages are not promptly reimbursed
by the Indemnitor as aforesaid, the amount of such unreimbursed Damages shall
accrue interest at a rate equal to two percent (2%) above the applicable prime
rate of Citibank, N.A.
(b) With respect to any third party Claims made subsequent to the Closing
Date, the following procedures shall be observed:
(1) Promptly after delivery of an Indemnification Notice in respect of a
Claim, the Indemnitor may elect, by written notice to the Seller, to undertake
the defense thereof with counsel reasonably satisfactory to Seller and at the
sole cost and expense of the Indemnitor.
(2) Failure by the Indemnitor to notify Seller of its election to defend
any such action within 20 days after notice thereof shall have been given shall
be deemed a waiver by the Indemnitor of their right to defend and settle such
action. If the Indemnitor assumes the defense of any such Claim, its obligations
hereunder as to such Claim shall be limited to taking all steps necessary in the
defense or settlement of such Claim and to holding Seller harmless from and
against any and all losses, damages, expenses and liabilities awarded in any
such proceeding or arising out of any settlement approved by the Indemnitor or
any judgment in connection with such Claim.
(3) The Indemnitor shall not, in the defense of any such Claim, consent to
the entry of any judgment (except with the prior written consent of Seller) or
enter into any settlement (except with the prior written consent of Seller)
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to Seller of a complete release from all liability in
respect of such Claim.
(4) If the Indemnitor does not assume the defense of a Claim, Seller may
defend against or settle such Claim in such manner as they may deem appropriate,
and the Indemnitor shall promptly reimburse Seller for all expenses, legal or
otherwise, incurred by Seller in connection with the defense against and
settlement of such Claim, as and when the same shall be incurred by them. If no
settlement of such Claim is made, the Indemnitor shall promptly reimburse Seller
for or, at Seller's option, pay the amount of any judgment rendered with respect
to such Claim and all expenses, legal or otherwise, incurred by Seller in the
defense against such Claim.
11.3 Right to Set Off. Notwithstanding anything to the contrary set forth
in this Agreement or any Exhibit hereto, in the event that Seller shall have a
Claim against Purchaser and JUNI which is asserted prior to the expiration dates
set forth in Section 9.1 hereof, for which Seller has not been fully and
completely indemnified as contemplated above, Seller shall have the right to set
off the amount of such Claim against Purchaser or JUNI so long as such Claim is
asserted prior to the expiration dates set forth in Section 9.1 hereof, against
any Shares due to Purchaser hereunder. Seller shall be entitled to suspend any
such payments until its Claim is resolved, without causing a breach of this
Agreement.
11.4 Remedies Cumulative. The remedies provided to Seller herein shall be
cumulative and shall not preclude Seller from asserting any other rights or
seeking any other remedies against an Indemnitor or its respective heirs,
successors or assigns. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent or subsequent
assertion or employment of any other appropriate right or remedy.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and date first above written.
New Wave Communication Inc
by:/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ by:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ by:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________ ______________________ _____________________
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JUNIPER SERVICES, INC. JUNIPER GROUP, INC.
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______________________ _________________________
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Chief Executive Officer Chief Executive Officer